MCNEIL
v.
JENKINS-MCNEIL
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A trial court lacks jurisdiction to enter a final judgment in a dissolution of marriage case when the party bearing the burden of proving residency fails to provide the statutorily mandated corroborating evidence of Florida residency.
[1] To obtain a dissolution of marriage in Florida, one party must reside in the state for at least six months prior to filing the petition.
[2] Residency for the statutory period required for dissolution of marriage in Florida is jurisdictional and must be alleged and proved.
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Join FLexlaw to unlock all legal intelligence“Residency for this statutory period is jurisdictional and must be alleged and proved.”
Discussing the mandatory nature of the residency requirement for dissolution of marriage jurisdiction in Florida.
Former Husband appealed from a final judgment dissolving his marriage. Although Former Wife's counter-petition alleged Former Husband's six-month Flor…
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IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FIFTH DISTRICT NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND DISPOSITION THEREOF IF FILED SHAWN GREGORY MCNEIL, Appellant,
v. Case No. 5D17-3283 LISA LEANN JENKINS-MCNEIL, Appellee. ________________________________/ Opinion filed July 27, 2018 Appeal from the Circuit Court for Lake County, Mark J. Hill, Judge.
Dorothy J. McMichen, of McMichen, Cinami & Demps, PLLC, Orlando, for Appellant.
Joanna M. Mitchell, of Mitchell & Associates, PA, Clermont, for Appellee.
PER CURIAM.
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,
33 So. 2d 42, 44 (Fla. 1947); Chisholm v. Chisholm, 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 under 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, 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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Minick v. Minick, 111 Fla. 469 (Fla. 1933)…st her husband for maintenance, where the legal residence or domicile of either of them is in this State, the words “legal residence or domicile” were treated as being practically synonymous, and we think correctly so. See also Chisholm v. Chisholm, 125 So. 694, 98 Fla. 1196. The sixth and seventh headnotes in the Warren case read as follows: “6. Legal residence or domicile may be acquired by one who coming from another State or Country actually lives in this State with the intention of permanently remai…
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Windham v. Windham, 144 Fla. 563 (Fla. 1940)…unless there are threats of mistreatment of such kind as to cause reasonable and abiding apprehension of bodily violence so as to render it impracticable to discharge marital duties. The following cases are cited: Chishold v. Chisholm, 98 Fla. 1196, 125 So. 694; Palmer v. Palmer, 26 Fla. 215, 7 So. 864; Beekman v. Beekman, 53 Fla. 858, 43 So. 923; Trigo v. Trigo, 90 Fla. 60, 105 So. 123; Hancock, 55 Fla. 680, 45 So. 1020, 15 L. R. A. (N. S.) 670; Hayes v. Hayes, 86 Fla. 350, 98 So. 66; Baker v. Baker, 94 F…
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Klinger v. Milton Holding Co., 136 Fla. 50 (Fla. 1938)…which is' void, as distinguished from voidable only, may be set aside on motion after the expiration of the term, and may even be collaterally assailed. See also Goodrich v. Thompson, 96 Fla. 327, 118 So. 60, and Chisholm v. Chisholm, 98 Fla. 1196, 125 So. 694. In Sawyer v. Gustason, 96 Fla. 6, 118 So. 57, this Court held that: “Where, in a suit to quiet title against a nonresident, as to whom constructive service by publication was had, the bill alleged that the lands were wild, unoccupied and unimprove…
Previewing 3 of 55 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Fernandez v. Fernandez, 648 So. 2d 712 (Fla. 1995)
- 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)
- Fazio v. Fazio, 66 So. 2d 297 (Fla. 1953)
- Lemon v. Lemon, 314 So. 2d 623 (Fla. 2d DCA 1975)
- Grey v. Grey, 995 So. 2d 623 (Fla. 2d DCA 2008)