Preston v. Preston ( 1933 )

This case is before us on rehearing granted pursuant to opinion and judgment affirming the order of the Circuit Court filed on December 19, 1933.

On reconsideration of the case we find that while, the appellee, who was complainant in the court below, alleged in her bill of complaint that defendant had committed adultery upon numerous occasions with a woman by the name of Margaret or Peggy who worked in a certain named place in Miami, she did not upon the hearing prove, or attempt to prove, any such conduct on the part of defendant, but abandoned that part of her charge against him. Without this charge and proof of the facts upon which it was based, she was required to allege and prove two years bona fide residence in the State of Florida next prior to the filing of the bill of divorce.

The record shows not only that she abandoned this allegation of her bill of complaint, but it further shows that she entirely failed to establish the fact that she had been a resident of the State of Florida for two years next preceding the filing of the bill.

The order appealed from should, therefore, be reversed on authority of the opinion and judgment in the case of Marsicano v. Marsicano, 79 Fla. 278, 84 So. 156. It is so ordered.

Reversed.

BUFORD, J., concurs.

DAVIS, C. J., and WHITFIELD and ELLIS, J. J., concur specially.

TERRELL, J., dissents.