Opinion
July 31, 1951.
Appeal from the Circuit Court for Pinellas County, John Dickinson, J.
Thomas J. Collins, St. Petersburg, for appellant.
B.M. Skelton, St. Petersburg, for appellee.
The only question here is whether a wife's removal to another state is sufficient, without more, to show a change of domicile so as to deprive the courts of this state of jurisdiction to entertain a suit for divorce by the wife against the husband, who is still a resident of this state. The wife alleged in her bill of complaint that she is "a bona fide legal resident of the State of Florida and has continuously so been for more than the immediately last past ninety days." It appears, however, from defendant's interrogatories and plaintiff's answers thereto, filed in the cause, that the plaintiff had returned to her parents' home in Georgia some six months prior to the date of the filing of suit and had been back in this state only once, for a period of four days, and for the purpose of filing divorce proceedings. The lower court thereupon dismissed the plaintiff's bill on the ground that she was not a bona fide legal resident of the State of Florida, from which decree of dismissal the plaintiff has appealed.
While a wife may, in a proper and necessary case, acquire a separate domicile from that of her husband for the purpose of a suit for divorce by her, the general rule is that the domicile of the wife is that of the husband in the absence of a judicial decree of separation or divorce, whether they are living together or apart. Bowmall v. Bowmall, 127 Fla. 747, 174 So. 14, citing Herron v. Passailaigue, 92 Fla. 818, 110 So. 539. We think, then, that the wife's removal to another state is, without more, insufficient to rebut the presumption as to her domicile being that of her husband; and that the order of dismissal of the lower court — which, in effect, held that the wife's removal to another state made out a prima facie case of change of domicile — was error. To effect a change of domicile there must be a removal and an intent. Gipson v. Gipson, 151 Fla. 587, 10 So.2d 82; Wade v. Wade, 93 Fla. 1004, 113 So. 374.
For the reasons stated, the decree is reversed and the cause remanded for further proceedings consistent herewith.
Reversed and remanded.
SEBRING, C.J., and CHAPMAN, ADAMS and ROBERTS, JJ., concur.