Opinion
No. 79-1054.
August 7, 1979.
Appeal from the Circuit Court, Dade County, Ralph B. Ferguson, Jr., J.
Holcomb Theriac and Charles Holcomb, Cocoa, for appellant.
Aronovitz Weksler and Bernard B. Weksler, Miami, for appellee.
Before PEARSON, HENDRY and SCHWARTZ, JJ.
This interlocutory appeal, authorized by Florida Rule of Appellate Procedure 9.130(a)(3)(A), brings for review an order denying the respondent wife's motion challenging venue.
The parties were married in Dade County, Florida. Marital differences arose, with the wife leaving the husband and moving to Orange County, Florida. The husband followed her and the martial relationship was resumed. After some months, when differences arose again, the wife moved to Brevard County, Florida. The husband returned to Dade County and began proceedings for dissolution of the marriage. The wife moved to dismiss or abate the proceedings, the trial judge denied the motion, and this appeal followed. We reverse upon authority of Carroll v. Carroll, 341 So.2d 771 (Fla. 1977).
The Carroll case holds that in a marriage dissolution proceeding, venue arises in that county where the husband and wife last lived with a common intention to remain married. The husband's contention that Dade County meets this test is untenable because it appears without conflict that the parties both left Dade County, although separately, and thereafter lived as husband and wife in Orange County for several months.
Therefore, the order denying the motion is reversed and the cause remanded to the trial court with directions (a) to consider the motion as one to transfer the cause pursuant to Florida Rule of Civil Procedure 1.060, and (b) to grant the motion to transfer.
Reversed with directions.