02/26/2018
Frequently people ask where will my divorce be filed? In Florida that depends on the venue of the cause of action which is determined by the domicile of the parties.
VENUE
Although venue and jurisdiction share a close relationship, they are distinct concepts. Venue in the technical meaning of the term means the place where a case is to be tried whereas jurisdiction does not refer to the place of the trial but to the power of the court to hear and determine the case. 20 Am.Jur.2d Courts, § 89 (1965); Bedingfield v Bedingfield, 417 So.2d 1047 (Fla. 4th DCA 1982)
Generally, in a dissolution of marriage action, venue “lies in the county where the parties last lived with a common intent to remain married,” “as that is where the cause of action is deemed to have accrued.” "In a dissolution of marriage action, the trial court is to look to the single county where the intact marriage was last evidenced by a continuing union of partners who intended to remain and to remain married, indefinitely if not permanently. Goedmakers v Goedmakers, 520 So. 2d 575 (Fla. 1988)
The Petitioner has no obligation to prove his selection of venue is proper. A petitioner has the choice of venue between alternatively appropriate venues for an action and the trial court must honor that choice. Corio v. Lopez, 190 So. 3d 1152 (Fla. 5th DCA 2016). When venue is proper in more than one county, a plaintiff may choose to institute suit in any proper place and the trial court must honor that choice. Symbol Mattress of Fla., Inc. v. Royal Sleep Prods., Inc.,832 So.2d 233, at 235 (Fla. 5th DCA 2002)
The petitioner need not plead or prove that his venue selection is proper. Brennan v. Brennan, 192 So. 2d 782 at 783 (Fla. 3rd DCA 1966). In fact, “the venue a party chooses is presumptively correct and the burden lies on the party who seeks a change of venue to demonstrate the impropriety of the venue selection. Ozuna v. Sheard, 109 So. 3d 1176 at 1178 (Fla. 3rd DCA 2013).
The burden of pleading and proving improper venue is on the Respondent. J.L.S. v R.J.L., 708 So. 2d 293 (Fla. 2nd DCA 1998).
Venue is a privilege that can be waived. If the Respondent fails to assert improper venue in her initial pleading or motion the venue privilege is deemed waived. Inverness Coca-Cola Bottling Company v. McDaniel, 78 So.2d 100 (Fla.1955); Fixel v. Clevenger, 285 So.2d 687 (Fla.3d DCA 1973); Honea v Walker Chemical & Exterminating Co., Inc., 393 So. 2d 1210 (Fla. 5th DCA 1981)
Waiver of venue may also occur if the litigant, having first contested venue, then takes an action inconsistent with the objection to venue. Although Respondent challenged venue in her initial pleading, she then proceeded to litigate in the Seminole County Court, filing a Notice of Production from Non-Party Lake Mary Education, LLC on May 19, 2017.
Waiver is "the voluntary and intentional relinquishment of a known right or conduct which implies the voluntary and intentional relinquishment of a known right.” Raymond James Fin. Servs. Inc. v. Saldukas, 896 So.2d 707, 711(Fla. 4th DCA 2005) Breaking down waiver into elements, the 4th DCA has recognized that three circumstances give rise to a waiver: (1) the existence of a right which may be waived; (2) actual or constructive knowledge of the right; and (3) the intent to relinquish the right. E.g., Capital Bank v. Needle, 596 So.2d 1134, 1138 (Fla. 4th DCA 1992). Proof of these elements "may be express, or implied from conduct or acts that lead a party to believe a right has been waived." See Taylor v. Kenco Chem. & Mfg. Corp., 465 So.2d 581, 587 (Fla. 1st DCA 1985).
In R.W. Roberts Construction Co., Inc. v. Masters & Co., Inc., 403 So.2d 1114 (Fla. 5th DCA 1981), the 5th DCA discussed the issue of conduct which constitutes a waiver of arbitration. In Roberts, the defendant, who was perhaps entitled to arbitration, moved to transfer venue of the plaintiff's pending lawsuit. After the trial court denied the motion to transfer venue as well as a motion to dismiss, the defendant moved to compel arbitration under the terms of the parties' contract. The court ruled that a party's active participation in litigation could constitute a waiver of that party's contractual right to arbitrate, and that the defendant's filing of a motion to dismiss and a motion to transfer venue constituted such a waiver.
Similar by analogy is the waiver of personal jurisdiction. The Florida Supreme Court held in Babcock v Whatmore, 707 So.2d 702 (Fla. 1998) a defendant waives a challenge to personal jurisdiction by seeking affirmative relief because such requests are logically inconsistent with an initial defense of lack of jurisdiction.
Jurisdiction protects a person’s constitutional liberty interests and is more significant than venue which is simply the selection of the place to try the case. In the instant case, although the Respondent challenged venue, she subsequently waived that challenge by participating in the pending cause of action by filing her Notice of Production from Non-Party Lake Mary Education, LLC on May 19, 2017.
DOMICILE
To have lived somewhere for venue purposes in a dissolution case means to have established a permanent domicile while the marriage was intact. Domicile is defined as “that place where a man has his true, fixed, permanent home and principal establishment, and to which whenever he is absent he has the intention of returning.” Black's Law Dictionary 435 (5th ed. 1979)");Bloomfield v. City of St. Petersburg Beach, 82 So.2d 364, 368 (Fla.1955)("legal residence" or "domicile" means a residence at a particular place, accompanied with positive or presumptive proof of an intention to remain there for an unlimited time; it is the "place an individual has set up his household goods and made the chief seat of his affairs and interests, from which, without some special avocation, he has no intention of departing; from which, when he has departed, he is considered to be away from home, and to which, when he has returned, he is considered to have returned home.");Keveloh v. Carter, 699 So.2d 285, 288 (Fla. 5th DCA 1997)("A legal residence or `domicile' is the place where a person has fixed an abode with the present intention of making it his or her permanent home."). The establishment of one's residence usually depends on a "variety of acts” on the person’s part. Hale v DOR, 808 So 2d 237, at 242 (Fla 1st DCA 2002)
A person may have several temporary local residences but can have only one legal residence. Walker v. Harris, 398 So.2d 955 (Fla. 4th DCA 1981). A legal residence or "domicile" is the place where a person has fixed an abode with the present intention of making it his or her permanent home. Minick v. Minick, 111 Fla. 469, 149 So. 483 (1933); Latta v. Latta, 654 So.2d 1043 (Fla. 1st DCA 1995); Once established, a domicile continues until it is superseded by a new one. A domicile is presumed to continue, and the burden of proof ordinarily rests on the party asserting the abandonment of one domicile to demonstrate the acquisition of another. Texas v. Florida, 306 U.S. 398, 59 S.Ct. 563, 83 L.Ed. 817 (1939); McDougald v. Jenson, 786 F.2d 1465 (11th Cir.), cert. denied, 479 U.S. 860, 107 S.Ct. 207, 93 L.Ed.2d 137 (1986).
A change of residence is accomplished and becomes effective when there is a good-faith intention to establish it, coupled with an actual physical move to the new residence, as evidenced by positive overt acts. This is so because legal residence consists of the concurrence of both fact and intention. Bloomfield v. City of St. Petersburg Beach, 82 So.2d 364 (Fla.1955). Stated otherwise, the mere intention to acquire a new domicile without the fact of an actual removal avails nothing; neither does the fact of removal without the intention. Bloomfield, 82 So.2d at 367. The bona fides of the intent is a highly significant factor. An individual's intent is subjective and therefore the best proof is where he or she says it is. Bloomfield. Finally, the intention to acquire a new domicile must be to make a home at the moment, not to make a home in the future. Campbell v. Campbell, 57 So.2d 34 (Fla.1952). Keveloh, supra 288.
SUMMARY
As you can see, domicile is a subjective matter that turns on the facts. Venue is determined by the domicile of the parties during an “intact” marriage. These are technical concepts that require careful analysis by a competent family law attorney.
