JONES
v.
JONES
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A wife sought temporary alimony unconnected with divorce, custody, and support of minor children without establishing residency in Florida. The court granted the defendant's motion to dismiss, holding that Florida's residency requirements under section 65.02 apply even to alimony suits under section 65.09, contrary to the holding in Schwenk v. Schwenk.
The court held that the six-month residency requirement of section 65.02 applies to alimony suits under section 65.09, and therefore the complaint must be dismissed for failure to allege or establish that either party had resided in Florida for the required period. The Schwenk v. Schwenk decision exempting section 65.09 suits from the residency requirement was a departure from prior Supreme Court precedent and should not be followed.
“the ninety day residence period prior to filing suit for divorce is wholly inapplicable to suits by the wife for alimony filed under section 65.09”
Statement of the holding in Schwenk v. Schwenk, which the court ultimately rejected as contrary to established precedent
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Join FLexlaw to unlock all legal intelligenceThe plaintiff, a resident of Tinton Falls, New Jersey, filed suit against the defendant, also formerly a resident of Tinton Falls, New Jersey, seeking…
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This cause came on for hearing on the defendant’s motion to dismiss the complaint on the ground that it fails to state a cause of action on which relief can be granted.
The complaint seeks temporary alimony unconnected with divorce and temporary and permanent custody of the minor children of the parties and temporary and permanent support of the minor children as well as an injunction against the defendant from removing the children from this jurisdiction.
*125It apparently proceeds under section 65.09, Florida Statutes. It is clearly not under section 65.10 as it fails to allege that the husband, having ability to maintain or contribute to the maintenance of his wife or minor children, fails to do so.
There is no allegation in the complaint that the parties or either of them is a resident of Florida. In fact the contrary appears. It is alleged that the plaintiff is a resident of Tinton Falls, N. J. and that the defendant was a resident of Tinton Falls, N. J., and has apparently taken up residence in Dade County, but it is not alleged that he has resided in Dade County more than six months as required by section 65.02, and it was freely admitted at the hearing that neither party has resided in this jurisdiction for that period.
Plaintiff’s contention is that under section 65.09, providing for alimony unconnected with divorce, it is not necessary to allege or prove residence, citing Schwenk v. Schwenk (1947), 159 Fla. 694, 32 So. 2d 734. That case squarely holds that “the ninety day residence period prior to filing suit for divorce is wholly inapplicable to suits by the wife for alimony filed under section 65.09”.
The plaintiff cites 10 Florida Jurisprudence 583, section 178, to sustain the proposition. That authority observes that the Schwenk case made no mention of the previous cases in which the contrary was held. We quote — “Earlier contrary decisions under the two-year law have not been expressly overruled. Miller v. Miller (1894) 33 Fla. 453, 15 So. 222, 24 LRA 137; Donnelly v. Donnelly (1897) 39 Fla. 229, 22 So. 648; Warren v. Warren (1917) 73 Fla. 764, 75 So. 35, LRA 1917E 490; Marsicano v. Marsicano (1920) 79 Fla. 278, 84 So. 156; Preston v. Preston (1933) 116 Fla. 246, 157 So. 197.”
Indeed the Court of Appeal of the Third District in the more recent case of Tinsley v. Tinsley, 116 So. 2d 649, after considering the Schwenk case, came to the conclusion that it was a departure from previous expressions of the Supreme Court and it declined to follow it. In this, the Court of Appeal seems to be correct.
Accordingly the motion to dismiss the complaint will be granted and the complaint dismissed.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Authorities Cited
- Warren v. Warren, 73 Fla. 764 (Fla. 1917)
- Simon v. Simon, 73 Fla. 919 (Fla. 1917)
- Marsicano v. Marsicano, 79 Fla. 278 (Fla. 1920)
- Greer v. Illgen, 79 Fla. 383 (Fla. 1920)
- Preston v. Preston, 116 Fla. 246 (Fla. 1933)
- Miller v. Miller, 33 Fla. 453 (Fla. 1894)
- Cosey Donnelly v. Eliza Donnelly, 39 Fla. 229 (Fla. 1897)
- Schwenk v. Schwenk, 159 Fla. 694 (Fla. 1947)
- Tinsley v. Tinsley, 116 So. 2d 649 (Fla. 3d DCA 1959)