Opinion
December 21, 1951.
Rosin, Paderewski Lewis, Sarasota, for petitioner.
Frank Redd, Sarasota, for respondent.
Grace Merritt, petitioner herein, has made application for the issuance of a writ of certiorari to review that certain order entered by the Chancellor on August 13, 1951, in a divorce action wherein petitioner was defendant and Harold L. Merritt (respondent here) was plaintiff.
The challenged order was one wherein the Chancellor denied the motion to dismiss which was filed by counsel for the petitioner. The motion to dismiss raised the question of the propriety of venue in this cause in Hardee County as may be done by motion to dismiss under Equity Rule No. 33(b), 31 F.S.A.
The bill of complaint alleged that the parties were married in Sarasota County, Florida, in which county they resided until Grace Merritt left the home of the parties on or about September 28, 1950. At the time a hearing was held on the motion to dismiss the Chancellor allowed an amendment to the complaint which was to the effect that Grace Merritt absconded from the home of the parties "with the intention of abandoning her Florida residence."
The complaint further alleged that Harold L. Merritt at the time of the marriage owned certain real property located in the County of Sarasota, State of Florida, and that upon marriage he conveyed a one-half interest in and to said property unto Grace Merritt upon her promise that she would be unto him "a loyal and dutiful wife." The prayer of the bill is for a divorce a vinculo matrimonii and for a decree determining and declaring that the entire title to the described real estate be fully restored to Harold L. Merritt.
The motion to dismiss because of improper venue was predicated upon the fact that the bill of complaint shows affirmatively that the parties were married in Sarasota County and resided therein until their separation; that the defendant is not shown by the bill to be a resident of Hardee County and that the real property in controversy is located, as disclosed by the description contained in the complaint, in Sarasota County.
Counsel for petitioner take the position that their motion to dismiss because of improper venue should have been determined with reference to the original complaint and that it was error to allow the amendment to be made instanter at the hearing on the motion to dismiss. They must of necessity take this position if the amendment which was allowed, coupled with the allegation that Grace Merritt "is a non-resident of Florida, having her residence and place of abode at No. 7 Riley Place, Binghamton, New York", should be held to have the effect of destroying the impact of Section 46.01, F.S.A., because it is expressly provided in said section that "This section shall not apply to suits against non-residents." Section 46.01, supra, is the statute which provides that suits shall be begun only in the county where the defendant resides or where the cause of action accrued or where the property in litigation is located. We do not find it necessary to determine whether the Chancellor erred in permitting the amendment to which we have hereinabove referred, because we hold the view that the allegations of the complaint as amended are not sufficient to justify the classification of this suit as one against a non-resident.
It is true that the bill alleges in express language that the defendant is a non-resident of Florida, and the amendment shows that Grace Merritt left her husband in Sarasota County with the intention of abandoning her Florida residence. The general rule recognized in this and most other jurisdictions is that a wife's residence or domicile is that of her husband. There is a well established exception to this rule which has been recognized in this State. This exception is that a wife may acquire a residence separate and apart from that of her husband if it should become proper or necessary for her to do so. Herron v. Passailaigue, 92 Fla. 818, 110 So. 539, 542, and cases therein cited. See also Chisholm v. Chisholm, 105 Fla. 402, 141 So. 302. The aforementioned exception is bottomed upon the maxim ex necessitate rei, the literal translation thereof being "from the necessity of the thing." In legal parlance, as well as in law dictionaries and text books upon the law, it is customarily given the translation "from the necessity of the case." In this suit it is the general rule rather than the exception which is applicable.
We are forced to conclude that the allegations of the complaint, taken as a whole, clearly demonstrate that the residence of Grace Merritt is in Sarasota County, Florida, because the complaint fails to show that Harold L. Merritt gave his wife any cause to leave him. Indeed, it alleges that it was she who was the wrongdoer. The complaint is, of necessity, predicated upon the inherent premise that he was without fault. Therefore, it could not have been proper or necessary for Grace Merritt to acquire a residence separate and apart from that of her husband.
We, therefore, hold the complaint shows by its allegations that when viewed in the light of existing law in this jurisdiction Grace Merritt is a resident of Sarasota County, Florida, and that she has the right to insist that this suit be begun in that county. We have on several occasions noted the distinction between jurisdiction and venue. See Gay, as Comptroller, v. Jacksonville Symphony Ass'n., Fla., 53 So.2d 110, and cases therein cited. We do not mean to hold herein that the suit filed by the respondent might not have been begun and continued in Hardee County, Florida, if the petitioner had not raised the question of venue.
The petition for writ of certiorari is hereby granted and the challenged order quashed.
SEBRING, C.J., and TERRELL and THOMAS, JJ., concur.