Opinion
Case No. 2D19-524
04-15-2020
REINHARD LAUTERBACH, Appellant, v. LINDA J. LAUTERBACH, Appellee.
Allison M. Perry of Florida Appeals, P.A., Tampa, for Appellant. Ingrid Anderson, Clearwater, for Appellee.
NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED Appeal from the Circuit Court for Pinellas County; Peter Ramsberger, Judge. Allison M. Perry of Florida Appeals, P.A., Tampa, for Appellant. Ingrid Anderson, Clearwater, for Appellee. ATKINSON, Judge.
The husband, Reinhard Lauterbach, appeals an order granting the wife, Linda J. Lauterbach, exclusive use and possession of the parties' Palm Harbor home as well as $15,800 per month in temporary alimony. Because neither the husband nor the wife resided in Florida during the six months before the wife filed the dissolution petition, the trial court's order is void for lack of subject matter jurisdiction. We therefore reverse.
The husband is a German citizen with a United States green card. The wife is a United States citizen with the equivalent status in Germany. Prior to their marriage in 2008, the husband and wife entered into a prenuptial agreement in which they chose "the law of the Federal Republic of Germany for the effects of their marriage under matrimonial law." While the signature page separately listed a German address for each future spouse, it listed Pinellas County, Florida, as the location where the agreement was notarized. The husband owned residences in Germany as well as a home in Palm Harbor, Florida. In 2009, a year after they married, the husband added the wife onto the title to the Florida property.
For a number of years, the couple split their time between Germany and Florida, spending approximately six months in each location, usually going to Germany in October and Florida in April. However, the wife also testified that "there were times towards the end where we spent five months maybe in the United States and seven months in Germany."
The wife suffered a stroke on September 15, 2016, which rendered her unable to perform basic, daily tasks. In mid-November, the parties travelled from Germany to the home located in Palm Harbor, Florida. The husband paid for twenty-four-hour care for the wife. However, there were problems with the care that she was receiving. After approximately two weeks, in December 2016, they decided to return to Germany. In Germany, the husband continued to pay for the same level of in-home, twenty-four-hour care. Approximately four months later, the wife travelled to a rehabilitation facility in Switzerland. The husband rented an apartment there and paid $69,000 for her nine-week stay.
After two months, the wife left the Swiss facility and flew with a medical escort to Carmel, Indiana, where her nephew was living. She was transferred to a rehabilitation facility near her nephew's house. On August 4, 2017, she filed a petition for dissolution of marriage in Pinellas County, Florida. The husband filed a similar petition in Germany on August 22, 2017. He was served with the wife's petition in October 2017. The wife moved to a rehabilitation facility in Fort Myers, Florida, in May 2018.
The Wife filed a motion for temporary support and exclusive use and possession of the Palm Harbor house. At the hearing, the wife testified that she has maintained a Florida driver's license since 2002 and that she uses the Palm Harbor address on her license, vehicle and boat registrations, and bank statements. She and her nephew testified that she returned to Carmel, Indiana, as opposed to the Palm Harbor home, because a doctor recommended that she remain close to her nephew. The trial court awarded the wife exclusive use and possession of the Palm Harbor house and $15,800 in temporary monthly alimony.
The husband argues that the trial court's order is void for lack of subject matter jurisdiction because neither the husband nor the wife were physically present in Florida during the six months before the wife filed the dissolution petition. Section 61.021, Florida Statutes (2017), provides the following: "To obtain a dissolution of marriage, one of the parties to the marriage must reside 6 months in the state before the filing of the petition." This "residency requirement is jurisdictional and must be alleged and proved in every case." Fernandez v. Fernandez, 648 So. 2d 712, 713 (Fla. 1995).
It is undisputed that neither of the parties was physically present in Florida during the six months prior to August 4, 2017, when the wife petitioned for dissolution of marriage. And the wife did not relocate to a Florida address until nine months after she filed her petition, nearly a year and a half after she departed the state. This and other courts of this state have consistently held that "[r]esidency under section 61.021 means 'an actual presence in Florida coupled with an intention at that time to make Florida the residence.' " McCarthy v. Alexander, 786 So. 2d 1284, 1285 (Fla. 2d DCA 2001) (emphasis added) (quoting Copas v. Copas, 687 So. 2d 885, 887 (Fla. 2d DCA 1997)); see, e.g., Jenkins v. Jenkins, 915 So. 2d 1248, 1250 (Fla. 4th DCA 2005) (acknowledging that residency requires "actual presence" and concluding that "[e]ven though the husband's physical presence in Florida over the year preceding the filing of the petition was de minimis, the trial court correctly determined the 'chief seat of [the husband's] affairs and interests' remains in Florida, creating presence and the requisite objective intent to be a Florida resident" (second alteration in original)).
Understanding that the wife's absence from the state may very well have been a consequence of her serious health issues as opposed to an intention to make her residence elsewhere, her complete physical absence from Florida during the six months prior to the filing of her petition is nonetheless dispositive. Under controlling precedent, to have resided in a place requires that one must have been present there during the prescribed time period. We therefore conclude that the wife failed to meet the residency requirement set forth in section 61.021, rendering the trial court's order void for lack of subject matter jurisdiction.
Reversed and remanded. VILLANTI and SLEET, JJ., Concur.