SHAWN GREGORY MCNEIL, APPELLANT,
v.
LISA LEANN JENKINS-MCNEIL, APPELLEE.
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Former Husband appeals a divorce judgment, arguing the trial court lacked jurisdiction because Former Wife failed to prove the statutory six-month Florida residency requirement with necessary corroborating evidence. The court reverses and remands because residency was not established through valid driver's license, voter registration, identification card, or third-party testimony as required by statute.
The court holds that residency for the six-month statutory period is jurisdictional and must be proved with corroborating evidence as specified in section 61.052(2). Because Former Wife failed to establish Former Husband's residency through any of the required forms of corroboration, the trial court lacked jurisdiction to enter the final judgment.
[1] To obtain a dissolution of marriage in Florida, one of the parties must reside in the state for at least six months prior to filing the petition.
[2] Proof of residency for the statutory period required for dissolution of marriage in Florida is jurisdictional and must be alleged and proved.
Previewing 2 of 6 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“Residency for this statutory period is jurisdictional and must be alleged and proved.”
Establishes that Florida residency is a jurisdictional prerequisite, not merely a procedural requirement that can be waived or stipulated.
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Join FLexlaw to unlock all legal intelligenceFormer Wife filed a counter-petition for dissolution of marriage, alleging that Former Husband had been a Florida resident for at least six months pri…
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Shawn Gregory McNeil ("Former Husband") appeals from the final judgment dissolving his marriage to Lisa Leann Jenkins-McNeil ("Former Wife"). He raises six arguments on appeal, one of which we find to be dispositive. We reverse the final judgment because the requisite evidence of residency in Florida was not established.
This case proceeded to trial upon Former Wife's counter-petition for dissolution of marriage. To obtain a dissolution of marriage in Florida, one of the parties to the marriage must reside six months in the state before the filing of the petition. § 61.021, Fla. Stat. (2015). Residency for this statutory period is jurisdictional and must be alleged and proved. Wise v. Wise , 310 So.2d 431, 432 (Fla. 1st DCA 1975) (citing Kutner v. Kutner , 159 Fla. 870, 33 So.2d 42, 44 (Fla. 1947) ; Chisholm v. Chisholm , 98 Fla. 1196, 125 So. 694, 700 (Fla. 1929) ). Here, Former Wife alleged in her counter-petition that Former Husband had been a Florida resident for at least six months prior to filing his petition for dissolution of marriage but did not separately allege that she was a resident of Florida. Thus, Former Wife had the burden at trial of proving Former Husband's residency in Florida.
Section 61.052(2), Florida Statutes (2015), requires that proof of residence *356under section 61.021 be corroborated by a "valid Florida driver license, a Florida voter's registration card, a valid Florida identification card issued under [section] 322.051, or the testimony or affidavit of a third party." The residency requirement may not be established by the uncorroborated testimony of one party, Lemon v. Lemon , 314 So.2d 623, 623-24 (Fla. 2d DCA 1975), nor can the requirement of corroborating evidence be waived by admission by the parties in the pleadings that the residency requirement has been met. Grey v. Grey , 995 So.2d 623, 623-24 (Fla. 2d DCA 2008) (citing Fernandez v. Fernandez , 648 So.2d 712, 713 (Fla. 1995) ). Residence can never be assumed, nor can it be established by agreement. Fazio v. Fazio , 66 So.2d 297, 299 (Fla. 1953) (citing Phillips v. Phillips , 146 Fla. 311, 1 So.2d 186, 188 (Fla. 1941) ).
Former Husband did not attend the trial. Moreover, Former Wife failed to establish Former Husband's residency in Florida with any of the necessary corroborative evidence under section 61.052(2), resulting in the trial court lacking jurisdiction to enter the final judgment. See Lemon , 314 So.2d at 624 ("Since petitioner failed to establish the statutory prerequisite of residence, the lower court lacked jurisdiction to enter a final judgment."). Accordingly, we reverse the final judgment as void and remand for further proceedings.
REVERSED and REMANDED for further proceedings.
SAWAYA, LAMBERT and EISNAUGLE, JJ., concur.
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Authorities Cited (11 total)
- McNeil v. Jenkins-McNeil (Fla. 5th DCA 2018)
- Frederic G. Chisholm v. Chisholm, 98 Fla. 1196 (Fla. 1929)
- Fernandez v. Fernandez, 648 So. 2d 712 (Fla. 1995)
- Almina Dahlin Phillips v. Phillips, 146 Fla. 311 (Fla. 1941)
- Horowitz v. Rossdale CLE, Inc. (Fla. 5th DCA 2023)
- Brawner v. Pixie Dev. Corp., 310 So. 2d 431 (Fla. 2d DCA 1975)
- Kutner v. Kutner, 159 Fla. 870 (Fla. 1947)
- State ex rel. J. Tom Watson v. Clements, 146 Fla. 394 (Fla. 1941)
- Fazio v. Fazio, 66 So. 2d 297 (Fla. 1953)
- Lemon v. Lemon, 314 So. 2d 623 (Fla. 2d DCA 1975)