FAZIO
v.
FAZIO
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The Florida Supreme Court reversed a divorce decree because the wife failed to establish the constitutionally required 90-day residency in Florida before filing for divorce. Despite amending her complaint to claim residency, her vague and uncertain testimony about her arrival date was insufficient to meet the statutory requirement.
The court held that the wife failed to establish the 90-day residency requirement by competent proof. The vague and uncertain testimony about arrival dates was insufficient to satisfy the statutory jurisdictional prerequisite, and the burden was on the plaintiff to establish residency. Residence cannot be assumed or established by agreement in divorce cases.
“The above testimony is wholly insufficient to establish residence for 90 days as required by Section 65.02, F.S.A. In all instances the burden is on the plaintiff to establish such residence by competent proof.”
Establishes the legal standard that the plaintiff must provide competent proof of 90-day residency, not vague approximations
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Join FLexlaw to unlock all legal intelligenceThe wife filed a complaint for alimony in August 1952, initially claiming to be a temporary resident of Florida. She then amended the complaint in Sep…
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DREW, Justice.
On August 19, 1952, the appellee (wife) filed a complaint in the Circuit Court of Dade County against appellant (husband) for “Alimony unconnected with divorce” under Section 65.09, F.S.A. In paragraph I of the sworn bill she alleged “That plaintiff is a temporary resident of the State of Florida.” Appellant answered on September 5, 1952, and, among other things, alleged appellee’s residence to be the State of New York.
The next item in the record is an “Amendment to Complaint,” which -was filed September 16, 1952. This document amended paragraph I of the original complaint so as to read:
“Plaintiff is a resident of Dade County, Florida, and has been an actual bona fide resident of Dade County, Florida, for more than 90-days prior to the filing of this amendment to Bill-of Complaint.”
And added the following to the prayer:
“That she may be divorced and forever freed from the bonds of matrimony now existing between her and the Defendant.”
When the cause came on before the lower court for taking testimony the following transpired:
“Mr. Phillips : Now comes the plaintiff and moves the Court for leave to file an amendment to the bill of complaint filed herein, in substantially the same words and phraseology as contained in the amendment filed herein and recorded by the Clerk.
“The Court: All right. I will allow the amendment now to be filed, and treat the answer as addressed to the original bill as addressed to the bill as amended. Do you have any objections-to proceeding to trial?
“Mr..Clark: I have no objections to that at all, sir.”
At the conclusion of the hearing the lower Court said: “I will grant the divorce. I think it is best there be a divorce.” Thereafter a final decree of divorce was entered and this appeal followed.
Assuming — but not deciding — that the action of appellant’s solicitor in failing to object to the amendment of September 16th was sufficient to give the lower Court jurisdiction over the appellant in the divorce proceedings, it was incumbent upon the appellee wife to establish the jurisdictional prerequisite of 90 days residence in this State. Section 65.02, F.S.A. Within the meaning of this Statute the complaint was filed September 16, 1952.' The only testimony offered to show residence was the following:
Sylvia Turner (a witness for appellee wife):
“ * * * Q. When did you first meet Mrs. Fazio? A. It was around June 15th of this year. “Q. Of 1952? A. 1952.
**
“Q. How frequently did you see Mrs. Fazio since, say, June 15, 1952? A. I have seen her about every week since then.
“Q. Since when ? A. Since I-first met her. I have seen her pretty steadily.
**
“Q. Would you say of your own knowledge that Mrs. Fazio has been a bona fide, continuous resident of the State of Florida since June 15, 1952, up to and including the present time? A. Yes, for the fact that I have seen her pretty steadily.
* * ‘ * * * *
“Q. Well, what about June 15th made it stand out in your mind? A. Oh, I just know it’s around the date that I met her. . “Q. It is around that time? It could have been June 25th; couldn’t it? A. Well, I am just saying around June 15th.
“Q. Yes, Ma’am. Is this within a radius of a month of June 15th? A. Could have been.
* . * * * * *, •
“Q. Could have been the last, could have been the 25th or 30th of the month ? . A. That is right. * * * ”
Mrs. Fazio (appellee wife) :
“ * * * Q. When did you first come to the State of Florida, Mrs. Fazio? A. I have a poor memory for dates, but I-believe I' arrived here around June 9th.* * * ”
Robert Fazio (son of appellee wife) :
“ * * * Q. Do you recall when you and your mother and brother first cáme to the State of Florida? A. No, I don’t.
“Q. Do you recall what" month it was? A. I believe it was June.
“Q. Do you remember the exact date? A. No, I don’t. “Q. Was it the early part of June, or the latter part of June? A. I would say about just between the early part and before the last week.
* * * * * *
“Q. Do you remember the exact date in June? A. No, I don’t. * *”
The above testimony is wholly insufficient to establish residence for 90 days as required by Section 65.02, F.S.A. In all instances the burden is on the plaintiff to establish such residence by competent proof. Mills v. Mills, 153 Fla. 746, 15 So. 2d 763. Residence can never be assumed in divorce cases nor can it be established by agreement. Phillips v. Phillips, 146 Fla. 311, 1 So. 2d 186.
Having determined that the complaint must be dismissed for the reasons stated, it is unnecessary for us to pass on the other questions presented.
Reversed with directions to dismiss the complaint.
Reversed.
ROBERTS, C. J., and THOMAS and HOBSON, JJ., concur.
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McNeil v. Jenkins-McNeil (Fla. 5th DCA 2018)…he 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…
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Coons v. Cathlyn Ann Coons, 765 So. 2d 167 (Fla. 1st DCA 2000)…icial decrees as against future collateral attack in distant courts. Caizza v. Caizza, 291 So. 2d 569, 571 (Fla.1974). As the complainant below, Appellee had the burden to prove that she met the durational residency requirement. See Fazio v. Fazio, 66 So. 2d 297 (Fla.1953); Held v. Held, 151 Fla. 583, 10 So. 2d 129 (1942). Whether or not a complainant is a Florida resident is a question of both fact and law to be settled or determined from the facts of each case. See Fowler v. Fowler, 156 Fla. 316, 22 So. 2…
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Hoffman v. Hoffman, 552 So. 2d 958 (Fla. 1st DCA 1989)…an v. Askew, 359 F.Supp. 1225, 1234-35 (M.D.Fla.1973), aff'd, Makres v. Askew, 500 F. 2d 577 (5th Cir.1974). The complaining party bears the burden of proof of residency for the statutory period preceding commencement of the action. Fazio v. Fazio, 66 So. 2d 297, 298 (Fla.1953). Such proof cannot be established by the complainant’s uncorroborated testimony. Phillips v. Phillips, 146 Fla. 311, 316, 1 So. 2d 186, 191 (1941). Furthermore, residency for section 61.021 purposes must be established by “clear and…
Previewing 3 of 5 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Almina Dahlin Phillips v. Phillips, 146 Fla. 311 (Fla. 1941)
- Horowitz v. Rossdale CLE, Inc. (Fla. 5th DCA 2023)
- Mills v. Mills, 153 Fla. 746 (Fla. 1943)
- State ex rel. J. Tom Watson v. Clements, 146 Fla. 394 (Fla. 1941)