PATRICIA GENZ CRUICKSHANK, APPELLANT,
v.
JOHN P. CRUICKSHANK, APPELLEE
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Wife appealed a final judgment dissolving her marriage, contending the husband lacked Florida residency, the court should have dismissed in favor of a pending Illinois legal separation action, and the court erred by refusing to order marital counseling. The appellate court affirmed, holding the husband met residency requirements, the trial court properly exercised discretion regarding forum, and the denial of the counseling motion was not an abuse of discretion.
The trial court properly found the husband met residency requirements based on his physical presence in Florida from 1966-1971 coupled with intent to be a permanent resident. The court properly exercised its discretion in declining to dismiss based on the Illinois action and forum non conveniens, and properly denied the counseling motion, as the wife showed no abuse of discretion.
[1] Residency for dissolution of marriage purposes requires physical presence in the state coupled with the intent to be a permanent resident.
[2] The doctrine of forum non conveniens is applied within the sound discretion of the court, balancing the interests of the litigants.
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Join FLexlaw to unlock all legal intelligence“The test of residency is physical presence in Florida and the concurrent intent to be a permanent resident.”
Establishes the legal standard for establishing Florida residency in divorce proceedings.
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Join FLexlaw to unlock all legal intelligenceThe parties married in Boston in 1961. The husband, a U.S. Air Force colonel, was assigned to Eglin Air Force Base in Florida in 1966, where he purcha…
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MILLS, Judge.
The wife appeals a final judgment dissolving the marriage between the parties. She contends the husband did not meet the statutory residency requirements; the trial court erred in not dismissing the action because the wife had a prior action for legal separation pending in Illinois; and the trial court erred by failing to order marital counseling where the wife contested the marriage was irretrievably broken. We affirm.
The husband is a colonel in the United States Air Force. The parties were married in Boston, Massachusetts, in 1961. In 1966, the husband was assigned to Eglin Air Force Base in Okaloosa County. The parties purchased a home in Fort Walton Beach, and the husband registered to vote, registered the family car in Florida, and opened an account with the Eglin Federal Credit Union. The husband still owns the home in Fort Walton Beach, votes in Oka-loosa County by absentee ballot, drives on a Florida driver’s license, and maintains the account at the Eglin Credit Union. In 1971, the husband was assigned to Scott Air Force Base in Illinois where the parties also bought a home. In March 1982, the husband was assigned to Texas but Mrs. Cruickshank remained in Illinois.
In July 1981, the wife filed for legal separation in Illinois. The husband was personally served and answered. In August 1981, the husband filed for dissolution of marriage in Okaloosa County alleging his residency there. The wife filed a motion to dismiss the Florida action alleging that the husband had not met Florida’s residency requirement, that Florida was an inconvenient forum, and asserting that the parties were already litigating in Illinois, which was denied. The wife also filed a motion for court-ordered counseling which was denied.
The test of residency is physical presence in Florida and the concurrent intent to be a permanent resident. Bloomfield v. City of St. Petersburg Beach, 82 So. 2d 364 (Fla.1955). The husband was physically present in Florida from 1966 to 1971. Coupled with the facts set forth above showing intent to be a permanent resident, the trial court properly held that the husband met the statutory residency requirements. See Jeffries v. Jeffries, 133 So. 2d 751 (Fla. 3d DCA 1961), and Sheppard v. Sheppard, 286 So. 2d 37 (Fla. 1st DCA 1973).
The application of the doctrine of forum non conveniens rests within the sound discretion of the court, tempered by the time-honored concept of “the interest of justice.” Houston v. Caldwell, 347 So. 1041 (Fla. 4th DCA 1977). The interest of the litigants must be balanced against each other and unless the balance is strongly in favor of the defendant, the plaintiff’s choice of forum should rarely be disturbed. Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 67 S.Ct. 839, 91 L.Ed. 1055 (1947). The husband contends that Florida is the only forum available to him. The wife has not shown otherwise nor shown abuse of discretion on the part of the trial court.
The wife’s contention that the Florida court should have declined jurisdiction in deference to the prior and concurrent jurisdiction of the Illinois court is without merit. Gratz v. Gratz, 188 So. 580 (Fla.1939). A motion for marriage counseling is within the sound discretion of the court. Hair v. Hair, 402 So. 2d 1201 (Fla. 5th DCA 1981). The wife has not shown an abuse of discretion.
AFFIRMED.
ROBERT P. SMITH, Jr., C.J., and THOMPSON, J., concur.
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Eckel v. Eckel, 522 So. 2d 1018 (Fla. 1st DCA 1988)…d as to members of the military, allowing them to seek divorce in Florida without proving their actual presence in the state during the six-month statutory period prior to the filing of their petitions of dissolution. See Cruickshank v. Cruickshank, 420 So. 2d 914 (Fla. 1st DCA 1982); Sheppard v. Sheppard, 286 So. 2d 37 (Fla. 1st DCA 1973). In Cruickshank, the husband, a colonel in the Air Force, was assigned to Eglin Air Force Base in Okaloosa County, Florida in 1966, where the family purchased a home, the h…
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Goodwin v. Goodwin, 559 So. 2d 109 (Fla. 2d DCA 1990)…eding in a dissolution action when the petitioner meets the Florida residence requirements, notwithstanding the pendency of prior divorce proceedings in another state. Siegel v. Siegel, 548 So. 2d 266 (Fla. 5th DCA 1989); Cruickshank v. Cruickshank, 420 So. 2d 914 (Fla. 1st DCA 1982). Since the wife established due diligence, excusable neglect, and a meritorious defense, we find that the trial court abused its discretion in denying her motion to set aside the default. We reverse and remand for further procee…
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Coons v. Cathlyn Ann Coons, 765 So. 2d 167 (Fla. 1st DCA 2000)…date of the dissolution hearing, Appellant was [*171] stationed again at Hurlburt Field, Florida. Generally, “[t]he test of residency is physical presence in Florida and the concurrent intent to be a permanent resident.” Cruickshank v. Cruickshank, 420 So. 2d 914, 915 (Fla. 1st DCA 1982). However, we have held that the special circumstances affecting military persons warrant an exception to this “physical presence” rule: Florida courts have recognized an exception to the statutory residency demand as to mem…
Previewing 3 of 10 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Gulf OIL Corp. v. Gilbert, 330 U.S. 501 (U.S. 1947)
- Bloomfield v. City OF ST. Petersburg Beach, 82 So. 2d 364 (Fla. 1955)
- Hair v. Hair, 402 So. 2d 1201 (Fla. 5th DCA 1981)
- Gratz v. Gratz, 137 Fla. 709 (Fla. 1939)
- Jeffries v. Jeffries, 133 So. 2d 751 (Fla. 3d DCA 1961)
- Sheppard v. Sheppard, 286 So. 2d 37 (Fla. 1st DCA 1973)