MELVIN LLOYD GIPSON
v.
PHYLLIS GERTRUDE GIPSON
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A nonresident serviceman stationed in Florida married in California and later filed for divorce in Florida state court. The Florida Supreme Court held that a person on active military duty can establish domicile in Florida if they have actual removal to the state and intent to make it their residence, even though the move was ordered by military command.
A serviceman can establish domicile in Florida if both the physical removal to the state and the intent to make it his residence are present. The fact that the removal was accomplished through military orders does not prevent a change of domicile where the serviceman has established the requisite intent to reside in the state.
“To effect a change of domicile there must be a removal and an intent. That the former is accomplished because of the performance of duty by one in the Service of his country is immaterial where, as in the instant case, the latter is established.”
Establishes the test for domicile and clarifies that military duty does not prevent domicile acquisition when intent is present.
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Join FLexlaw to unlock all legal intelligenceMelvin Lloyd Gipson, a nonresident of Florida, married the defendant in California in 1940 and enlisted in the U.S. Navy. In 1941, he was transferred …
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The plaintiff, a nonresident of Florida, married the defendant in California in the year 1940 and enlisted in the United States Navy. The following year he was transferred to the naval air station at Opa Locka, in Dade County. He intended to become domiciled in Florida when he arrived and after remaining a year registered as a qualified voter in this State. Later he instituted the present suit for divorce.
Upon this statement of facts the circuit court has certified to us for instruction, under Rule 38, the question whether the plaintiff acquired such a residence in Florida as to give that court jurisdiction of the cause.
It seems unnecessary to discuss decisions of this Court which would assist in defining his status had he not been serving in the armed forces. Patently, under the facts stated he became a resident, unless the rule heretofore recognized by us is affected by the change of domicile during enlistment.
If, in obedience to the orders of his superiors and in the line of duty, he had been sent to this State from another, he not entertaining any intention to shift his residence, his then domicile would have continued undisturbed. Johnston v. Benton, et al., 73 Cal. App. 565, 239 P. 60; Trigg v. Trigg, 226 Mo. App. 284, 41 S.W. (2nd) 583. See also note at 129 A.L.R. 1382.
To effect a change of domicile there must be a removal and an intent. That the former is accomplished because of the performance of duty by one in the *589Service of his country is immaterial where, as in the instant case, the latter is established. In such circumstances the rule that there must be concurrence of factum and animus is satisfied. Trigg v. Trigg, supra.
Our view, therefore, is that the chancellor should proceed to a consideration of the proof of the facts postulated and, if they be established to his satisfaction, to a decision of the cause on its merits.
BROWN, C. J., WHITFIELD, CHAPMAN and ADAMS, JJ., concur.
TERRELL and BUFORD, JJ., dissent.
dissenting:
I think we should decline to answer the question because it is not within the purview of Rule 38, therefore, I dissent.
BUFORD, J.,
dissenting:
I think we should decline to answer the question because it is not within the purview of Rule 38, therefore, I dissent.
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Miller v. Nelson, 160 Fla. 410 (Fla. 1948)…ve the requisite intent to change his domicile from the State of Florida to the State of California. The rule supra is not in conflict with our previous holdings in Warren v. Warren, 73 Fla. [*421] 764; 75 So. 35, L.R.A. 1917E 490; Gipson v. Gipson, 151 Fla. 587, 10 So. (2nd) 82, and similar cases. See Texas v. Florida, 306 U.S. 398, 59 S. Ct. 563, 83 L. Ed. 817, 121 A.L.R. 1179, Riley v. New York Trust Co., 315 U.S. 343, 62 S. Ct. 608, 86 L. Ed. 885 Pertinent language of the order of dismissal is viz: “an…
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Mills v. Mills, 153 Fla. 746 (Fla. 1943)…execution of process issuing from state courts directed to persons situate on reservations, how [*748] ever, we think the salient point is the intention entertained by the appellant of establishing a residence here. In the case of Gipson v. Gipson, 151 Fla. 587, 10 So. (2nd) 82, we said there were two elements which must be proved to establish a change of' domicile: the act of removal and the intent, or, as they are otherwise designated, factum and animus, and the man serving his country who during that se…
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Coons v. Cathlyn Ann Coons, 765 So. 2d 167 (Fla. 1st DCA 2000)…ho made frequent visits to Florida while in armed forces, met statutory residency requirements, where he always listed his permanent residence in Florida and testified that he always intended Florida to be his permanent residence); Gipson v. Gipson, 151 Fla. 587, 10 So. 2d 82 (1942) (en banc). In Eckel, the Okaloosa County, Florida, trial court dismissed Mr. Eckel’s petition for dissolution of marriage, where Mrs. Eckel alleged that he had not been a physical resident of the state during the six-month peri…
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