Petition — Storer v. Storer

MICHAL

In The aaa

Supreme Court of the United States

Case No. ..... v1" 4 64

PETER STORER and STUART W. PATTON As

Co-Executors of the Estate of GEORGE

B. STORER, Deceased,

Petitioners,

Vs.

DOROTHY M. STORER,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

DISTRICT COURT OF APPEAL OF FLORIDA

FOR THE THIRD DISTRICT

HERBERT L. NADEAU, Esq.

Patton, KANNER, NADEAU, SEGAL,

ZELLER & LAPi aTE

150 S.E. 2nd Avenue

Miami, Florida 33131

and

SAMUEL SPEcTor, Esq.

Spector & TUNNICLIFF, P.A.

Post Office Box 82

Tallahassee, Florida 32302

Counsel for Petitioners

E. L. Menpewnaut, Inc., 926 Cherry Street, Kansas City, Mo. 64106, (816) 421-3030

INDEX

ne 1

RENE PRs aly ne ne 2

I I onic arsindieiniapiicnesntianinectainitonsonanenantie 2

Statement of the Case ............... ‘aa

Reasons for Granting the Wit ..................---sc-e-esees-e0es 5

| ei ee aa ae —

Ir CIID n.c‘ceciscrmnnstenssevepnpcinanemensenssontmnemnmmsesconiommes 16

Appendix—

Decree and Judgment, District Court, Second Judi-

I SS Te I i scccssernssenonseseissinsentnesteretenienss Al

Order Denying Motion to Quash and Motion for.

Summary Judgment .... , A4

Opinion, District Court of Appeal of Florida, Third

TS AT

Memorandum Opinion, Supreme Court of Florida ....A10

Order, Supreme Court of Florida, June 28, 1977 ....... A19

TO A21

Citations

CASES

Armstrong v. Armstrong, 350 U.S. 568, 100 L.ed. 705 10

Atherton v. Atherton, 181 U.S. 155, 45 Led. 794... 9

Esenwein v. Pennsylvania (1945), 325 U.S. 279, 89 L.

ed. 1608 __. Sa a eT ee —

Estin v. Estin (1948), 334 U.S. 541, 92 L.ed. 1561 _._. 10

Krieger v. Krieger, 334 U.S. 55, 92 Led. 1572... -s-10

Il

Millikin v. Meyer, 311 U.S. 457 3

Mizner v. Mizner, 439 P.2d 679 (Nev. 1968) ——. 12

Pennoyer v. Neff, 95 U.S. 714 ...11, 13

Rice v. Rice (1949), 336 U.S. 674, 93 L.ed. 957 5, 10

Smith v. Croom, 7 Fla. 81 (1857) 6

Smith v. Smith, 288 P.2d 497 (Cal. 1955) 13

Texas v. Florida, 59 S.Ct. 563 (1939) ~ 5, 7,8

Vanderbilt v. Vanderbilt, 354 U.S. 416, 1 L.ed. 2d 1456 10, 13

Williams v. North Carolina (1945), 325 U.S. 226, 89 L.

ed. 1572 5, 6, 8, 13

STATUTES

28 USC Section 1257 (3) 2

MISCELLANEOUS

25 Am.Jur. 2d, Domicile, Section 16 » *<

25 Am.Jur. 2d, Domicile, Section 92 —...0000000 0. 6

Keenan, Residence and Domicile, Section 420 ........... 6

i

On > ~ o> -

In The

Supreme Court of the United States

I

PETER STORER and STUART W. PATTON As

Co-Executors of the Estate of GEORGE

B. STORER, Deceased,

Petitioners,

vs.

DOROTHY M. STORER,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

DISTRICT COURT OF APPEAL OF FLORIDA

FOR THE THIRD DISTRICT

Petitio:\ers pray that a writ of certiorari issue to review

the judgment of the District Court of Appeal of Florida,

Third District, entered on December 17, 1974, certiorari

denied by the Supreme Court of Florida on April 7, 1977,

rehearing denied June 28, 1977.

CITATIONS TO OPINIONS BELOW

The opinion of the District Court of Appeal of Florida,

Third District appears at 305 So.2d 212 and is printed

in the Appendix hereto at p. A7. The memorandum opin-

ion of the Supreme Court of Florida declining to review

the decision of the District Court of Appeal and the denial

of rehearing thereof is not yet reported, but is printed

in the Appendix to this brief at p. A10.

JURISDICTION

The judgment of the District Court of Appeal of Flor-

ida, Third District was entered on December 17, 1974.

The Supreme Court of Florida declined to review the

decision on April 7, 1977, rehearing thereof denied on

June 28, 1977. The jurisdiction of this court is invoked

under 28 USC Section 1257 (3).

QUESTION PRESENTED

Whether a state must afford full faith and credit under

the U. S. Constitution to a divorce decree of a sister state,

which was entered after acquiring personal jurisdiction

over the parties, and which ordered a substantial alimony

award to the wife, when there is no probative evidence

which shows a lack of jurisdiction in the divorcing state.

STATEMENT OF THE CASE

Mr. Storer and Respondent were married in 1960 in

Saratoga, Wyoming and maintained their legal domicile

in Wyoming throughout their married life. Being of sub-

stantial financial means, the Storers also maintained a

winter home in Miami Beach, Florida and divided the

winter months between their home in Florida and their

yacht at Lyford Cay in the Bahamas.

The parties were in Florida, as they were every winter

of their married life, when on January 25, 1972, Mr. Storer

informed his wife that he no longer wished to be married

to her. Mrs. Storer remained at the house in Miami.

However, in March, she traveled to San Diego, California

ee ee rere

3

for the express purpose of determining whether she would

like to live there. (A21) On April 13, 1972, Respondent

signed her income and gift tax returns which specifically

designated Saratoga, Wyoming as her domicile. (A22) On

April 22, 1972, three days before she was served with

Wyoming process, Mrs. Storer called the ranch foreman

in Wyoming and asked him to ship her personal belongings

to San Diego, California. (A22)

On April 25, 1972, Respondent was served with process

in an action for divorce instituted by Petitioner in Wyo-

ming. Personal service was effected upon the wife extra-

territorially pursuant to Wyoming’s “Long Arm Statute”

providing for service upon Wyoming domiciliaries residing

outside the state. This court in Millikin v. Meyer, 311

US. 457, construed the very Wyoming Statute under which

Respondent was served and upheld the validity of service

which was effected, outside the state. Petitioner’s Wyo-

ming action proceeded to final judgment, divorcing the

parties and awarding the wife $300,000 tax free lump sum

alimony and periodic alimony in the amount of $2,500 per

month.

Respondent did not appear in the Wyoming proceeding,

but rather on May 22, 1972, instituted her own action

for dissolution in Florida. That dissolution action was

brought on the theory and claim that the parties were

at all times Florida residents and had never established

a Wyoming domicile. Petitioner moved to quash service

of process on July 17, 1972, contending that the parties

were already divorced by a Wyoming court which obtained

personal jurisdiction over Respondent pursuant to the Wyo-

ming Long Arm Statute, en? therefore, the Wyoming judg-

ment was entitled to full “aith and credit under the U. S.

Constitution.

4

The trial court reserved ruling on the husband’s Motion

to Quash. Extensive discovery and testimony was taken

in support and contravention of that motion, which basi-

cally covered the entire life style and history of both

parties. The majority of the testimony elicited by Respon-

dent was for the purpose of attempting to establish that

the parties were at all times Florida residents and had

never become legally domiciled in Wyoming. The trial

court denied Petitioner’s Motion to Quash, finding that

the Wyoming decree was valid and binding insofar as

it dissolved the marriage between the parties, but that

it did not conclusively adjudicate her property rights in

that the Wyoming court had not obtained in personam

jurisdiction over Respondent. The court specifically found

that the Wyoming Court had no in personam jurisdiction

over Respondent because sometime between January of

1972 and April 25, 1972, Respondent changed her domicile

to Florida. However, the court also found that up until

that time, both parties were legally domiciled in Wyoming.

(A4) The only fact relied upon by the trial court to

indicate Respondent’s manifest intent to change her domi-

cile from Wyoming to Florida, was Respondent’s act of

tearing up her Will sometime in April. (A4)

An interlocutory appeal was taken from the order

denying the Motion to Quash service of process. The

District Court of Appeal of Florida, Third District, affirmed

and the Supreme Court of Florida declined to review the

case by order dated April 7, 1977, rehearing denied June

28, 1977.

REASONS FOR GRANTING THE WRIT

1. The decision of the Florida courts in failing to

apply the universally accepted standard of determining

domicile, is in conflict with the decision of this court

in Williams v. North Carolina (1945), 325 U.S. 226, 89

L.ed. 1572 and Texas v. Florida, 59 S.Ct. 563 (1939). The

parties were without question domiciled in Wyoming

throughout their married ‘life and if the wife had not

established a domicile separate from that of her husband

when she was served with Wyoming process in Florida

on April 25, 1972, she is bound by the Wyoming decree

to the same extent as if she had been personally served

in Wyoming.

The lower court found that the domiciliary abode was

Wyoming and expressly accorded to the Wyoming judg-

ment full faith and credit insofar as it related to jurisdic-

tion to grant the divorce, but denied that the Wyoming

court had jurisdiction of the wife for purposes of adjudicat-

ing alimony and property rights.

Justice Jackson in Rice v. Rice, 336 U.S. 674, criticized

the concept of divisible divorce and was of the opinion,

and properly so, that the decree, if valid for one purpose,

was valid for all purposes. In the Rice case, Justice Jack-

son said “. . . confusion now hath made his masterpiece.”

The court found that the parties were domiciled in

Wyoming until January 1972, and that the husband’s domi-

cile continued to be Wyoming after that date. Upon the

impossible theory that the parties had two domiciles, the |

court made a finding, which is wholly unsupported by

the record, that the wife changed her domicile from that

of Wyoming to Florida between January and April 1972.

In order for the wife to change her domicile from

Wyoming to Florida, she must show an abandonment of

her Wyoming domicile and an intent to establish a domicile

in Florida. (See 25 Am.Jur. 2d, Domicile, Sec. 16) This

court in Williams v. North Carolina, supra, approved a

definition of domicile as being the place “where a person

voluntarily fixes his abode . . . with a present intention

of making it his home.”

It is abundantly clear from the evidence in the instant

case that Respondent never manifested any intent to ac-

quire Florida domicile.

It is uncontroverted that Respondent was residing at

her winter home in Miami during the time period within

which the court found that she had changed her domicile,

but mere removal to a new place of residence unaccom-

panied by an intent is not sufficient to establish domicile,

Smith v. Croom, 7 Fla. 81 (1857). Her continued occupancy

of the Miami Beach house was not probative of anything,

because she and Mr. Storer had used this house for the

last twelve years during the winter season while their

legal residence was Wyoming.

Inasmuch as “intent” is a subjective state of mind,

the mere declaration that one intended to acquire a new

domicile, unaccompanied by some positive overt acts is

not sufficient to prove domicile. See Keenan, Residence

and Domicile, Section 420 and 25 Am.Jur. 2d, Domicile,

Section 92. The law has always required that where “in-

tent” was an element to be proved, it must be manifest

and proved by the evidence of overt acts and circumstances

by which a reasonable man could believe that the intent

to do a particular thing was present.

The burden of proving the change of domicile by

presenting such facts and circumstances which demonstrate

7

the abandonment of the old domicile and the establishment

of a new domicile is clearly upon the party asserting

the change of domicile. In Texas v. Florida, supra, the

Supreme Court stated:

“. . . In such circumstances Florida carried the

burden of showing that the earlier domicile was aban-

doned in favor of a later one. Mitchell v. United

States, supra (21 Wall. 352, 22 L.ed. 587); Anderson

v. Watt, 138 US. 694, 706, 34 Led. 1078, 1082, 11

S.Ct. 449; Re Newcomb, supra (192 N.Y. 250, 84 N.E.

950) ; Beale Confl. L. Section 41A, supra... .”

It is abundantly clear that Respondent failed to meet

the burden of proof set down by this court, in that she

failed to establish even one fact which would prove that

she changed her domicile. The wife’s own testimony con-

clusively establishes, contrary to the findings of the court,

that she did nothing to become a domiciliary of Florida

between January and April 25, 1972, and that the only

action ever taken by her was not taken until May 24,

1972, when she registered to vote in Dade County, Florida.

This was after she had been served with the Wyoming

process on April 25, 1972. This was also after she had

filed her petition for dissolution.

The wife was cross examined as to her conduct month

by month from November 1971, when the parties arrived

in Miami for the winter, through May of 1972, as to what,

if anything, she did to evidence a change of residence

between November 1971 and May 1972, which covered

the period in which she was served with process, viz.:

April 25, 1972. In each instance her reply was that she

had done nothing by word, act or deed to give outward

evidence of an intention to change her residence, because

she at all times had been a resident of Florida and had

never become a resident of Wyoming. She further tes-

tified that she did nothing in that regard until May 25,

1972, when she registered to vote in Florida. Her latest

confirmation of Wyoming residence was the signing of

the 1971 income and gift tax returns on April 14, 1972.

The Florida court’s finding that Respondent changed

her domicile to Florida being unsupported by any facts

which would establish an intent to acquire such domicile

is in conflict with this court’s decision in Texas v. Florida,

supra.

2. The court arbitrarily and without any record foun-

dation held that Mrs. Storer had abandoned her Wyoming

domicile and manifested an intent to acquire permanent

domicile in Florida. Having failed to apply the standard set

down by this Court in Williams v. North Carolina, supra,

and Texas v. Florida, supra, in determining the abandon-

ment of Wyoming domicile, Wyoming remained Mrs. Stor-

er’s domicile and the judgment of the Wyoming court

was entitled to full faith and credit under the U. S. Con-

stitution. Failure to afford full faith and credit to the

decree of the Wyoming court, which properly acquired

jurisdiction over its absent domiciliary violates and contra-

dicts the U. S. Constitution as universally interpreted to

require full faith and credit be given to judgments of

sister states when based upon properly acquired jurisdic-

tion.

Although recognizing the great hesitancy with which

the Supreme Court would review determination of jurisdic-

tion predicated upon the fact of domicile, this court in

Williams, supra, nevertheless, held that a determination

of domicile must be based upon relevant facts and this

Court would review such determinations when they were

used to subvert the full faith and credit clause of the

U.S. Constitution. The court in Williams stated:

—

“The challenged judgment must, however, satisfy our

verutiny that the reciprocal duty of respect owed by

the states to one another’s adjudication, has been fairly

discharged and has not been evaded under the guise

of finding an absence of domicile and therefore a

want of power in the court rendering the judgment.

“Appropriate weight was given to the finding of dom-

icile in the Nevada decree and that finding was allowed

to be overturned by relevant standards of proof...

fairly assessed on cogent evidence.”

It should be emphasized that the marital domicile

was unquestionably Wyoming and, indeed, the Florida

court so found.

The decision of the Florida Court in refusing to give

full faith and credit to the Wyoming decree is in direct

conflict with the principles enunciated in Atherton v.

Atherton, 181 U.S. 155, 45 L.ed. 794. In Atherton v. Ather-

ton, supra, the parties had been married in New York

and moved to Kentucky where they resided as husband

and wife. The wife left the husband in Kentucky and

returned to New York with the intention of permanently

residing in that state. The wife brought an action for

divorce in New York. The husband appeared in the case,

and set up the fact that he had obtained a final decree

of divorce in the state of Kentucky. .The record showed

that the husband had filed his suit for divorce in Kentucky,

stating that his wife could be found in Clinton, New York

and pursuant to Kentucky law, notification of the suit

was sent to the wife in New York.

In the New York suit brought by the wife, the court

found that the wife had not been personally served with

process in the Kentucky suit and since she did not appear

in the Kentucky proceedings and had ceased to be a resi-

10

dent of Kentucky, that she was not bound by the Kentucky

decree.

Sat

Kentucky decree was entitled to full faith and credit.

The basis of the Supreme Court decision was the single

fact that Kentucky was the marital domicile.

The finding that the marital domicile was Wyoming

distinguishes the instant case from those cases decided

by this Court on the theory of divisible divorce. Vander-

bilt v. Vanderbilt, 354 U.S. 416, 1 L.ed. 2d 1456; Esenwein

v. Pennsylvania (1945), 325 U.S. 279, 89 L.ed. 1608; Rice

v. Rice (1949), 336 U.S. 674, 93 L.ed. 957; Estin v. Estin

(1948), 334 U.S. 541, 92 L.ed. 1561; and Krieger v. Krieger,

334 U.S. 55, 92 L.ed. 1572. In all of those cases, one

of the parties left the marital domicile, having resorted

to the courts of a state other than the domiciliary state

for the purpose of instituting suit.

The sole case not falling within the ambit of a non-

domiciliary divorce is Armstrong v. Armstrong, 350 U.S.

568, 100 L.ed. 705. There, the petitioner while residing

in Dade County, Florida, filed a suit against his wife who

had separated and gone to Ohio. The wife did not per-

sonally appear in the Florida action. Service was by publi-

cation. The divorce was granted petitioner in Florida.

The wife later instituted suit in Ohio for divorce and

alimony and the husband set up the Florida decree as

a defense to the wife’s action in Ohio. The Ohio court

denied her a divorce but granted to her alimony. That

was affirmed by the Ohio courts and the Supreme Court

of the United States granted certiorari. The sole question

before the Supreme Court was whether or not the Ohio

courts were required to give full faith and credit to the

en s —

ee

11

Florida judgment. The majority of the court held that

it was not required to give the Florida decree full faith

and credit because the Florida court did not adjudicate

any question of alimony. The court accordingly held that

the decree was given full faith and credit by the courts

of Ohio as far as it went. It is obvious from the opinion

that had an award of alimony been made the result might

well have been different. In the course of that opinion

the court said:

“As we interpret the Florida decree, however, the

Florida court did not purport to adjudicate the absent

wife’s right to alimony. The Ohio courts, therefore,

in awarding alimony to the wife, did not in fact fail

to give full faith and credit to the Florida decree.”

Nothing appearing in the record which shows an intent

to acquire Florida domicile, Mrs. Storer remained a domi-

ciliary of the State of Wyoming. Therefore, the Wyoming

Court properly acquired jurisdiction over Respondent and

its judgment is entitled to full faith and credit under

the United States Constitution.

3. There is a growing trend in the law to provide

for extraterritorial service of process in divorce cases based

upon a theory that jurisdiction obtains in the situs of

the marital domicile. Indeed, the decisions of this court

which spawned the theory of divisible divorce were predi-

cated upon the now obsolete principles announced in Pen-

noyer v. Neff, 95 U.S. 714, which held that a personal

judgment could not be obtained in the absence of personal

service within the jurisdiction. The Pennoyer v. Neff,

supra, doctrine has been for all practical purposes, swept

under the rug by the advent of the long arm statute

and a change in the concept of what is necessary to satisfy

the requirements of due process.

12

Courts of other jurisdictions have had this problem

of service outside the boundaries of the domiciliary abode.

These statutes have uniformly been upheld. There are

several cases squarely in point to this situation.

In Mizner v. Mizner, 439 P.2d 679 (Nev. 1968), as

to which the Supreme Court of the United States denied

certiorari (398 U.S. 487), the Supreme Court of Nevada

held that a decree providing for alimony was entitled

to full faith and credit in the Nevada courts where the

wife brought the action in California and the husband

was served in Nevada pursuant to a California statute.

The parties, as here, had been residents of the domiciliary

state (California) up to the time of his separation from

his wife. In upholding the validity of the California decree

for alimony, the Supreme Court of Nevada said:

“The rule of Pennoyer has been substantially eroded

by the High Court. Gambs v. Morgenthaler, 83 Nev.

90, 423 P.2d 670 (1967). Nondomiciliaries of the forum

state have been subjected to the personal jurisdiction

of that state without offending the demands of either

procedural or substantive due process. (Citing authori-

ties) In International Shoe, supra, the court wrote:

‘due process requires only that in order to subject

a defendant to a judgment in personam, if he be not

present within the territory of the forum, he have

certain minimum contacts with it such that the main-

tenance of the suit does not offend “traditional notions

of fair play and substantial justice.”’ 326 U.S. at

316, 66 S.Ct. at 158.

“None of the cited cases involves a personal judgment

for alimony. Still, it seems to us that the minimum

contacts concept of in personam jurisdiction is pecu-

liarly suited to matrimonial support cases. If such

13

contacts are in fact present in the particular case

before the court, then the extension of in personam

jurisdiction beyond the borders of the forum state

may prove to be a sensible step in solving some of

the hardships arising from family separation. Courts

must know by this time that strict application of the

Pennoyer rule to family support cases has encouraged

migratory divorce by offering a shield to a spouse

wishing to avoid financial responsibility. The state

of the matrimonial domicile has a deep interest in

its citizens and a legitimate purpose in taking steps

to preclude their impoverishment. Accordingly, it is

our opinion that in personam jurisdiction may be ac-

quired over a non-resident defendant in a divorce

action by extraterritorial personal service of process

if (1) a statute of the support ordering state has au-

thorized the acquisition of such jurisdiction in that

manner, and (2) there exist sufficient contacts between

the defendant and the forum relevant to the cause

of action to satisfy ‘traditional notions of fair play

and substantial justice.’ The demands of due process

are satisfied in these circumstances.”

The fact that this court denied certiorari in the above

case evidences a departure from Pennoyer, supra. Vander-

bilt, supra; Williams, supra.

In Smith v. Smith, 288 P.2d 497 (Cal. 1955), the wife

instituted a divorce action in California and the husband

was served with process upon him in the State of New

York. In holding that service subjected the husband to

the jurisdiction of the California court and authorized an

in personam judgment against him, the court said:

“Defendant appeals from certain portions of the inter-

locutory decree of divorce and related orders. He

14

challenges the propriety of the trial court’s assumption

of an in personam jurisdiction over him by virtue

of the service of process on him without the state.

His objections cannot prevail in view of the provisions

of the governing statutes. Code Civ. Proc. Secs. 412,

413, 417.

“While the court did not make a specific finding as

to the domicile of defendant, it is clear from the record

that it denied relief to defendant upon acceptance

of plaintiff's claim that defendant was at the time

of the commencement of the divorce action a dom-

iciliary of this state, and hence the court had jurisdic-

tion to render an in personam judgment against him

following the personal service of process on him in

New York. Code Civ. Proc. Sec. 417. Defendant con-

tends that the words ‘resident of this State’ as used

in the cited statute, do not contemplate domicile as

the jurisdictional factor but rather require residence

in fact, even physical presence, of defendant within

the state; but such contention cannot be sus-

tained. * * *

“Then in Milliken v. Meyer, 1940, 311 U.S. 457, 61

S.Ct. 339, 341, 84 L.Ed. 278, these principles of juris-

diction were re-examined, and it was decided that

despite the broad language of Pennoyer v. Neff, supra,

domicile in the state where a personal action is brought

makes an absent defendant amenable to personal ser-

vice without the state, having due regard for the re-

quirement of due process. The state statute there

applying authorized such service when a ‘resident

* * * departed * * * to avoid * * * service.’

In California, however, according to dictum in Pinon

v. Pollard, 1945, 69 Cal. App. 2d 129, 132, 158 P. 2d

254, the case of De la Montaya still remained the

law. * * *”

15

It is, therefore, abundantly clear that the entire con-

cept of divisible divorce, i.e. that the state where the

marital domicile was last maintained may be the proper

forum to divorce the parties, but may have lost jurisdiction

to affect a property settlement because one party has left

the state, no longer has any foundation in the law.

The entire concept of divisible divorce was grounded

upon what has become a fallacious premise, viz.: that

personal service within the jurisdiction is a must in order

to satisfy the requirements of due process.

In the case at bar, the marital domicile was unquestion-

ably Wyoming, the Wyoming statute provided for extra-

territorial service upon absent domiciliary and such service

was effected upon Mrs. Storer in Florida. Therefore, the

Wyoming judgment should have been given full faith and

credit in Florida.

CONCLUSION

For the foregoing reasons, this petition for a writ

of certiorari should be granted.

Respectfully submitted,

Patron, KaNNER, NADEAU, SEGAL,

ZELLER & LAPORTE

150 S.E. 2nd Avenue

Miami, Florida 33131

and

Specror & Tuwnicuirr, P.A.

Post Office Box 82

Tallahassee, Florida 32302

Attorneys for Petitioners

By: /s/ Sam Spector

I HEREBY CERTIFY that a true copy of the foregoing

has been furnished by U. S. Mail to KELLY, BLACK,

BLACK & KENNY, P.A., 1400 Alfred I. duPont Building,

Miami, Florida 33131; and SAM DANIELS, 1414 Alfred IL.

duPont Building, Miami, Florida 33131, Attorneys for Re-

spondent, on this 20th day of September, 1977.

/s/ Sam Spector

Al

APPENDIX

THE DISTRICT COURT OF THE SECOND JUDICIAL

DISTRICT OF THE STATE OF WYOMING IN AND

FOR CARBON COUNTY

Docket No. 10629

GEORGE B. STORER,

Plaintiff,

vs.

DOROTHY M. KIGGINS STORER,

Defendant.

DECREE AND JUDGMENT

(Filed May 30, 1972)

On this day came on to be heard this divorce action,

George B. Storer appearing in person and by his attorney

Byron Hirst of Hirst, Applegate & Dray, and the Defen-

dant Dorothy M. Kiggins Storer not appearing in person

or by attorney or otherwise. Having carefully considered

the record in this Court with respect to this proceeding

and having heard the evidence and having fully consid-

ered, the Court finds as follows:

1. Plaintiff and Defendant were married to each

other at Saratoga, Carbon County, Wyoming, on 16 July

1960 and they ever since have been and now are husband

and wife, and Plaintiff has resided in Wyoming from the

time of the marriage until now.

2. Defendant Dorothy M. Kiggins Storer concealed

herself and absented herself from the State of Wyoming

in order to avoid service of process in Wyoming and was

A2

at 26 Indian Creek Island, Miami, Florida, where she was

served with process according to law 25 April 1972.

3. Defendant Dorothy M. Kiggins Storer duly was

served with process according to law, personally and in

person according to the requirements of the laws of the

State of Wyoming and the Wyoming Rules of Civil Pro-

cedure and she had actual notice of the contents of the

Summons and the Complaint.

4. Defendant had to and including 25 May 1972 to

file an answer or other pleading with respect to the Com-

plaint and Summons duly served and she has failed to

plead or otherwise defend as provided by the Wyoming

Rules of Civil Procedure and she hereby is declared to

be in default.

5. Defendant has offered such indignities to Plain-

tiff as have and now do render intolerable his condition

as her husband.

6. The parties to this marriage have had no children

of this marriage. Defendant Dorothy M. Kiggins Storer

is independently wealthy and is over 70 years of age and

in good health. Plaintiff having requested the Court to

fix proper amounts for a property settlement and alimony

and the Court having considered the assets of the parties,

the source thereof and the circumstances in which they

will be left by this decree, hereby finds that the property

settlement and the amount provided for the support of

Defendant Dorothy M. Kiggins Storer as stated herein-

after are fair, reasonable and proper and should be and

hereby are approved and confirmed by this Court.

7. The Court finds it has jurisdiction of the subject

matter and of the parties and finds generally for Plaintiff

George B. Storer and against Defendant Dorothy M. Kig-

gins Storer.

A3

WHEREFORE, IT IS ORDERED, ADJUDGED AND

DECREED:

A. George B. Storer hereby is given a divorce from

Dorothy M. Kiggins Storer and their marriage on 16 July

1960 at Saratoga, Wyoming, hereby is finally terminated.

B. Plaintiff George B. Storer shall pay to the Clerk

of this Court on or before 10 July 1972 the sum of $300,000

in tax free bonds at present value as full and final settle-

ment of the property rights of the parties finally and for-

ever, said amount to be paid to said Defendant by the

Clerk.

C. George B. Storer shall pay to Defendant Dorothy

M. Kiggins Storer, so long as she shall remain unmarried,

alimony in the amount of $2500 per month, payable on the

lst day of June 1972 and of each month hereafter, payable

to the Clerk of this Court.

DATED: 30 May 1972.

BY THE COURT:

Judge

A4

IN THE CIRCUIT COURT OF THE ELEVENTH

JUDICIAL CIRCUIT IN AND FOR DADE COUNTY,

FLORIDA CIVIL ACTION

GENERAL JURISDICTION DIVISION

No. 72-10445

In re: Marriage of

DOROTHY M. STORER, Wife,

and

GEORGE B. STORER, et al.,

Respondents.

ORDER DENYING MOTION TO QUASH AND

MOTION FOR SUMMARY JUDGMENT

This cause came on to be heard upon the motion to

quash service of process filed by George B. Storer on July

17, 1972; and upon the motion of Dorothy M. Storer to

establish the domicile of Dorothy M. Storer as of April 25,

1972; and upon the motion of George B. Storer for sum-

mary judgment. The Court initially reserved ruling on

the motion to quash and authorized resort to discovery

proceedings for the purpose of ascertaining the jurisdic-

tion of the Court. Upon consideration of the evidence of

the respective parties and argument of counsel, the Court

finds that until January, 1972, the legal residence of both

of the parties was Wyoming. The Court further finds

that the residence of George B. Storer remained in Wy-

oming, but that Dorothy M. Storer, between January,

1972, and April 25, 1972, changed her legal residence from

that of Wyoming to Florida, and on April 25, 1972, the

date upon which she was served with process in Florida

in the Wyoming divorce proceedings, and thereafter, she

was not a domiciliary of Wyoming but was a domiciliary

A5

of the State of Florida. The Court further finds that the

decree of the Wyoming court is entitled to full faith and

credit under the Constitution of the United States insofar

as it relates to the dissolution of the marriage but that the

Wyoming decree is not entitled to full faith and credit

under the Constitution of the United States insofar as it

attempted to adjudicate alimony and the property rights

of the parties, since Dorothy M. Storer was not a domi-

ciliary of Wyoming on April 25, 1972. Accordingly, it is

ORDERED AND ADJUDGED as follows:

1. That the Wyoming decree of divorce dated May

30, 1972, dissolving the bonds of matrimony existing be-

tween the parties is a valid and binding judgment with

respect to the provisions thereof which decrees the dis-

solution of the marriage. That the provisions in the Wy-

oming decree of divorce relating to the wife’s alimony

right or other property rights are not binding upon her

or upon this Court and that this Court has complete juris-

diction to adjudicate questions relating to her alimony and

property rights. That insofar as property rights and ali-

mony are concerned, the Wyoming decree is not res ad-

judicata and is not entitled to full faith and credit under

the Constitution of the United States as the wife was not

a resident or domiciliary of the State of Wyoming when

she was served with process in the Wyoming divorce pro-

ceedings on April 25, 1972, in Florida.

2. That ground 1 of George B. Storer’s motion to

quash is denied. That grounds 2 and 3 of George B.

Storer’s motion to quash which averred lack of jurisdic-

tion of the person and property of George B. Storer predi-

cated solely upon constructive service of process have

become moot with the filing of the answer by George B.

Storer.

A6

3. That the motion of George B. Storer for summary

judgment be and the same is hereby denied.

4. That the cause is set for final hearing on June 26,

1974, commencing at 10:00 o’clock A.M.

DONE AND ORDERED at Miami, Dade County, Flor-

ida, this 23 day of April, 1974.

Murray Goodman

Circuit Judge

Copies furnished to:

Kelly, Black, Black & Kenny, P.A.

Gunn, Venney & Buhler

Patton, Kanner, Nadeau, Segal, Stobs

& Zeller

Dixon, Dixon, Lane & Mitchell

Therrel, Baisden, Peterson, Stanton & Stillman

AT

Not Final Until Time Expires to File Rehearing

Petition and If Filed, Disposed of.

IN THE DISTRICT COURT OF APPEAL OF FLORIDA

THIRD DISTRICT

July Term, A.D. 1974

Case No. 74-740

GEORGE B. STORER,

Appellant,

vs.

DOROTHY M. STORER,

Appellee.

Opinion filed December 17, 1974.

An Interlocutory Appeal from the Circuit Court for

Dade County, Jack A. Falk, Judge.

Patton, Kanner, Nadeau, Segal, Stobs & Zeller, for

appellant.

Kelly, Black, Black & Kenny and William G. Earle,

for appellee.

Before PEARSON and NATHAN, JJ., and GREEN,

ROBERT A. JR., Associate Judge.

PER CURIAM.

This interlocutory appeal is from an order of the

circuit court denying the husband’s motion to quash.

The motion was grounded upon lack of jurisdiction

of the subject matter and of the parties and insufficiency

of service of process. Attached to the husband’s motion

to quash was a copy of a final judgment of divorce dated

May 30, 1972, entered by a Wyoming state court on a

A8

complaint for divorce brought by the husband. The com-

plaint by the wife for dissolution of marriage was filed

May 22, 1972, in Dade County, Florida; it was later

amended to include a request for other relief, including

alimony and adjudication of property rights.

The appellant presents four issues on appeal: (1)

Whether the wife was a legal domiciliary of the State of

Wyoming when she was served with process in the State

of Florida in accordance with the laws of the State of

Wyoming so as to render the Wyoming decree conclusive

upon the issue of alimony and property rights? (2)

Whether the Wyoming judgment of divorce, which not

only divorced the parties but also made an award of

alimony, is entitled to full faith and credit under the

Constitution of the United States? (3) Whether the wife

was entitled to collaterally attack the Wyoming decree in

Florida? (4) Whether it was error for the court to refuse

to dismiss the complaint for dissolution of marriage when

it appeared that the wife had not been a Florida resident

for six months before filing her complaint for dissolution

of marriage?

In answering these questions, we first look to the

findings of fact recited by the chancellor in the order

denying the motion to quash:

“... until January, 1972, the legal residence of both

of the parties was Wyoming. The Court further finds

that the residence of George B. Storer remained in

Wyoming, but that Dorothy M. Storer, between Jan-

uary, 1972, and April 25, 1972, changed her legal resi-

dence from that of Wyoming to Florida, and on April

25, 1972, the date upon which she was served with

process in Florida in the Wyoming divorce proceed-

ings, and thereafter, she was not a domiciliary of

Wyoming but was a domiciliary of the State of

Florida.” =~

A9

It is well established that the chancellor’s findings

come to the appellate court clothed with a presumption

of correctness, and should not be disturbed unless they

are clearly erroneous; and that the appealing party has

the burden of demonstrating that the decision is clearly

erroneous. Marx v. Goldfinger, Fla. App. 1966, 187 So.2d

380; Mitchell v. Morse Operations, Inc., Fla. App. 1973,

276 So.2d 248. After careful review of the record on ap-

peal, we find there was substantial evidence to support the

chancellor’s findings of fact.

We next look to the conclusions of law which the

chancellor included in the order.

“ .. that the decree of the Wyoming court is entitled

to full faith and credit under the Constitution of the

United States insofar as it relates to the dissolution of

the marriage but that the Wyoming decree is not

entitled to full faith and credit under the Constitution

of the United States insofar as it attempted to ad-

judicate alimony and the property rights of the parties

since Dorothy M. Storer was not a domiciliary of

Wyoming on April 25, 1972 .. .” and “. . . that the

provisions in the Wyoming decree of divorce relating

to the wife’s alimony right or other property rights

are not binding upon her or upon this court and that

this court has complete jurisdiction to adjudicate

questions relating to her alimony and property rights.”

From careful review of the briefs of counsel, and the

arguments discussed therein, as applied to the chancellor’s

findings of fact, we find there was no error of law.

Therefore, for the reasons stated, the order appealed

is affirmed.

Affirmed.

Al0

Not Final Until Time Expires to File

Rehearing Petition and, if Filed,

Determined.

IN THE SUPREME COURT OF FLORIDA

January Term, A. D., 1977

Case No. 46,935

DCA Case No. 74-740

PETER STORER AND STUART W. PATTON as

Co-Executors of the Estate of GEORGE

B. STORER, deceased,

Petitioners,

vs.

DOROTHY M. STORER,

Respondent.

Opinion filed April 7, 1977

Writ of Certiorari to the District Court of Appeal,

Third District

Sam Spector, Cynthia S. Tunnicliff and Patton, Kan-

ner, Nadeau, Segal, Zeller & LaPorte, for Petitioners

William G. Earle and Hugo L. Black, Jr. of Kelly, Black,

Black & Kenny; and Sam Daniels, for Respondent

PER CURIAM

The petition for writ of certiorari reflected apparent

jurisdiction in this Court. We issued the writ and have

heard argument of the parties. Upon further considera-

tion of the matter, we have determined that the cited de-

cisions present no direct conflict as required by Article V,

All

Section 3(b) (3), Florida Constitution. Therefore, the writ

must be and is hereby discharged.

It is so ordered.

OVERTON, C.J., BOYD, ENGLAND, SUNDBERG and

HATCHETT, JJ., Concur

ADKINS, J., Dissents with an opinion with which

ROBERTS (Retired) J., Concurs

ADKINS, J., dissenting.

Until January, 1972, the legal residence of both hus-

band and wife was Wyoming. The residence of the hus-

band remained in Wyoming. Between January, 1972, and

April 25, 1972, the wife changed her residence from Wy-

oming to Florida. On April 25, 1972, the date upon which

she was served with process in Florida in the Wyoming

divorce proceedings, the wife was a resident of Florida and

remained so during the pendency of the proceeding. The

District Court held that the provisions of the Wyoming

decree of divorce relating to the wife’s alimony right or

other property rights were not binding upon her and that

portion of the Wyoming decree was not entitled to full faith

and credit under the Constitution of the United States.

In Pinebrook v. Pinebrook, 329 So.2d 343 (Fla. 4th DCA

1976), the husband and wife established a marital domicile

in California which they maintained for over eight years.

In 1973 the wife, who continued to reside in California, in-

stituted divorce proceedings. However, the husband was

residing in Utah and was served with process under the

provisions under the California Long Arm statute. The

husband made no appearance in the California action. The

California court dissolved the marriage, awarded the wife

custody of the child, ordered the husband to pay alimony,

child support and attorney fees, and directed the parties to

Al2

sell certain Florida real estate and to divide the proceedings

therefrom.

The wife brought suit in Florida to enforce that portion

of the decree ordering the disposition of the Florida prop-

erty. The husband contended that this portion of the order

was a personal judgment which could only be entered upon

the acquisition of personal jurisdiction. The District Court

held that the form of service was calculated to give actual

notice to the husband by serving him by certified, airmail,

return receipt requested. The court in its opinion said:

“We now turn to the second due process require-

ment and the second prong of our initially posed in-

quiry, whether appellee had sufficient minimum con-

tacts with the forum state, California, to justify the

imposition of personal jurisdiction. The power of a

court to obtain personal jurisdiction over an out-of-state

defendant has been greatly expanded since Pennoyer

v. Neff, 95 U.S. 714, 24 L.Ed. 565 (1877) which held

that personal jurisdiction over a nonresident could only

be obtained by personal service within the boundaries

of the forum state or by the defendant’s voluntary ap-

pearance in the action. The basic modern rule was an-

nounced in International Shoe Co. v. Washington, (326

US. 310) supra:

“ ‘Historically the jurisdiction of courts to ren-

der judgment in personam is grounded on their

de facto power over the defendant’s person. Hence

his presence within the territorial jurisdiction of

a court was pgerequisite to its rendition of a judg-

ment personally binding him. Pennoyer v. Neff,

95 U.S. 714, 733, 24 L.Ed. 565, 572. But now that

the capias ad respondendum has given way to per-

sonal service of summons or other form of notice,

due process requires only that in order to subject

Al3

a defendant to a judgment in personam, if he be not

present within the territory of the forum, he have

certain minimum contacts with it such that the

maintenance of the suit does not offend “tradi-

tional notions of fair play and substantial jus-

tice.”’” 329 So0.2d at 347.

The court pointed out that the minimum contact held suf-

ficient to satisfy due process has consisted of as simple an

act as maintenance of the last marital domicile within the

forum state, coupled with one spouse’s continued residence

in the forum state. This is exactly the situation in the

case sub judice, as the husband Storer remained in Wy-

oming.

Wyoming law permits acquisition of personal juris-

diction over a nonresident. The Wyoming court specifically

found that it acquired personal jurisdiction under the laws

of that state. Requiring a nondefendant to submit to such

jurisdiction under the circumstances of the case sub judice

is consonant with the requirements of due process.

In Storer, supra, the Dictrict Court held that the non-

residence of the defendant precluded any possibility of a

valid personal judgment in Wyoming which would be en-

titled to full faith and credit.

This Court in Carroll v. Carroll, 341 So.2d 771, Case

No. 48,495, opinion filed January 13,.1977, in discussing

venue, approved a decision of the First District Court

which held that venue should be in that county in which

the marriage was last evidenced by a continuing union of

partners who intended to remain married, indefinitely if

not permanently. As stated by the Court,

“The venue problem will be no more difficult than

finding where the marriage partners called home.”

Al4

Under this pronouncement, the former marital relation-

ship in Wyoming is a sufficient minimum contact to sat-

isfy due process.

The question before us is whether or not the long arm

statute of the forum state was sufficient to acquire per-

sonal jurisdiction over the nonresident wife so that the

subsequent judgment was entitled to full faith and credit.

Storer v. Storer, supra, says no. Pinebrook v. Pinebrook,

supra, says yes. There is conflict.

We should also noie the case of Lefkovitz v. Lefko-

GE saan So.2d ........ (Fla. lst DCA), Case No. AA-86,

opinion filed December 30, 1976. The court held that an

Illinois court did not acquire personal jurisdiction of the

husband, a former resident of Illinois, because the act giv-

ing rise to the Llinois divorce action occurred in Florida

and at that time there was no marital domicile in Illinois.

The dissenting opinion, referring to the confusion now

existing among the courts of Florida in applying the full

faith and credit provision of the constitution, contains the

following:

“Locating the marital domicile for divorce juris-

diction purposes once depended on the merits of the

case, because a husband departing to another state

took with him the ‘domicile of matrimony’ and that

of his wife only if he left faultlessly. Haddock v.

Haddock, 201 U.S. 562, 571-72, 26 S.Ct. 525, 528, 50

L.Ed. 867, 870 (1906). The Supreme Court’s first de-

cision in Williams v. North Carolina, 317 U.S. 287, 63

S.Ct. 207, 87 L.Ed. 279 (1942), was thought to have

put an end to the difficulty of that rule by holding

that courts at the domicile of either partner may di-

vorce them. But the concept of a marital domicile—

in the simpler sense of the last homeplace the mar-

riage partners shared—has found renewed usefulness

Al5

to legislatures reaching to claim for their courts

personal jurisdiction, incident to the termination of

marriage, to exact alimony and other financial ad-

justments from the absent spouse. Thus, it has re-

peatedly been held, most recently in Judge Owen's

scholarly opinion for the District Court of Appeal,

Fourth District, that due process standards permit a

state to assert personal jurisdiction over a departed

husband to enforce his obligation to support a stay-

behind spouse long dorhiciled at the forum. Pinebrook

v. Pinebrook, 329 So.2d 343 (Fla. App.4th 1976), and

cases cited at 348. To affirm the jurisdictional inter-

ests of that state ‘seems so sensible,’ wrote one com-

mentator on the murky doctrines of domicile, ‘that it

should be obvious to any one who had never become

confused by studying law.’ Powell, And Repent at

Leisure, 58 Harv.L.Rev. 930, 955 (1945). See also Re-

statement (Second) of Conflicts §. 77 (1971).”

In Mitchim v. Mitchim, 518 S.W.2d 362 (Tex. 1975),

the Supreme Court of Texas said:

“In personam jurisdiction may constitutionally be

acquired by extraterritorial service of process on nat-

ural persons as in the case of corporations. See Mc-

Gee v. International Life Ins. Co., 355 U.S. 220, 78

S.Ct. 199, 2 L.Ed.2d 223; Calagaz v. Calhoon, 5th Cir.,

309 F.2d 248; Owens v. Superior, Court of Los Ange-

les Co., 52 Cal.2d 822, 345 P.2d 921; Mizner v. Mizner,

84 Nev. 268, 439 P.2d 679. Respondent argues that

this is not true with respect to cases involving mari-

tal relationships. He insists that May v. Anderson,

345 U.S. 528, 73 S.Ct. 840, 97 L.Ed. 1221, stands for

the proposition that the so-called minimum contacts

doctrine has no application in the field of domestic

relations. That was one of the arguments advanced

Al6

by the dissenting justices in Mizner v. Mizner, su-

pra.

“The decision in May provides no support for

respondent’s position. It was held there that a Wis-

consin divorce decree awarding custody of minor chil-

dren to their father was not entitled to full faith and

credit in Ohio since the Wisconsin court did not have

personal jurisdiction over the mother. The lack of

personal jurisdiction over the mother was due, how-

ever, to the absence of statutory authority. The Wis-

consin statute authorizing extraterritorial service of

process did not purport to confer personal jurisdiction

over the party thus served.

“In recent years a number of states have adopted

long-arm statutes with specific language making them

applicable to cases growing out of domestic difficul-

ties. These statutes are given their intended effect.

See Scott v. Hall, 203 Kan. 331, 454 P.2d 449; Dillon

v. Dillon, 46 Wis.2d 659, 176 N.W.2d 362. In other

states long-arm statutes containing only general lan-

guage have been held to confer personal jurisdiction

over nonresident defendants in divorce actions. See

Soule v. Soule, 193 Cal.App.2d 443, 14 Cal.Rptr. 417;

Mizner v. Mizner, 84 Nev. 268, 439 P.2d 679; Hines v.

Clendening, Okl., 465 P.2d 460; Stucky v. Stucky, 186

Neb. 636, 185 N.W.2d 656. See also 51 Neb.L.Rev.

159; 20 Hastings L.J. 361. The Arizona Court of Ap-

peals has held that their Rule 4(e)(2) enables the

court to acquire personal jurisdiction in a paternity

suit. Backora v. Balkin, 14 Ariz.App. 569, 485 P.2d

292. Other decisions indicate that the courts of Ari-

zona make no distinction between domestic relations

cases and other types of suits. See Garlitz v. Rozar,

18 Ariz.App. 94, 500 P.2d 354; Rodriguez v. Rodriguez,

8 Ariz.App. 5, 442 P.2d 169.” At 365.

Al7

In explaining the rationale for applying the minimum

contacts test in matrimonial cases, the District Court in

Pinebrook, supra, quoted from Mizner v. Mizner, 84 Nev.

268, 439 P.2d 679 (1968), cert. denied 393 U.S. 847, 89

S.Ct. 130, 21 L.Ed.2d 117 (1968), as follows:

“.. it seems to us that the minimum contacts con-

cept of in personam jurisdiction is peculiarly suited

to matrimonial support cases. If such contacts are

in fact present in the particular case before the court,

then the extension of in personam jurisdiction be-

yond the borders of the forum state may prove to be

a sensible step in solving some of the hardships aris-

ing from family separation. Courts must know by

this time that strict application of the Pennoyer rule

to family support cases has encouraged migratory di-

vorce by offering a shield to a spouse wishing to avoid

financial responsibility. The state of the matrimonial

domicile has a deep interest in its citizens and a legiti-

mate purpose in taking steps to preclude their im-

poverishment. Accordingly, it is our opinion that in

personam jurisdiction may be acquired over a non-

resident defendant in a divorce action by extraterri-

torial personal service of process if (1) a statute of

the support ordering state has authorized the acqui-

sition of such jurisdiction in that manner, and (2)

there exist sufficient contacts between the defendant

and the forum relevant to the cause of action to sat-

isfy ‘traditional notions of fair play and substantial

justice.’ The demands of due process are satisfied in

these circumstances.” [footnotes omitted] 329 So.2d

at 347-48.

The District Court in Pinebrook, supra, then added:

“As was pointed out by the New Jersey court, writ-

ing in Egbert vy. Egbert, supra, 309 A.2d at 748:

Al8

“*The existence of a marital domicile in a state

has aS Many consequences as economic activity

does... .’

“Although the Mizner and Egbert cases were con-

cerned specifically with the enforcement of matri-

monial support provisions, we find their rationale

equally compelling with regard to a provision di-

recting a division of property such as involved in the

case at bar. The enforcement of such a provision

can be just as critical to the overall economic situation

of the spouse remaining in the forum state as enforce-

ment of a periodic support provision.

“The minimum contacts held sufficient to satisfy

due process in the cited matrimonial cases have con-

sisted of as simple an act as maintenance of the last

marital domicile within the forum state, coupled with

the petitioning spouse’s continued residence in the

forum state,....” 329 So.2d at 348.

I conclude that the Wyoming law permits acquisition

of personal jurisdiction over a nonresident by extra-

territorial service. The Wyoming court found that such

notice was given and personal jurisdiction acquired. I

further conclude that requiring a defendant to submit

to such jurisdiction under these circumstances is consonant

of the requirements of due process. I would hold that the

Wyoming divorce decree, insofar as it constituted a per-

sonal judgment, is valid and therefore entitled to enforce-

ment in our courts under the full faith and credit clause

of the United States Constitution. For that reason the

petition or complaint of the wife should have been dis-

missed.

The decision of the District Court of Appeal should

be quashed and the cause remanded to the trial judge

with instructions to grant the husband’s motion to quash.

ROBERTS (Retired) J., Concurs

Al9

IN THE SUPREME COURT OF FLORIDA

Tuesday, June 28, 1977

Case No. 46,935

DCA Case No. 74-740

PETER STORER and STUART W. PATTON as Co-

Executors of the Estate of GEORGE B. STORER,

deceased,

Petitioners,

vs.

DOROTHY M. STORER,

Respondent.

On consideration of the petition for rehearing and

clarification filed by attorneys for petitioners,

IT IS ORDERED by the Court that said petition be

and the same is hereby denied.

OVERTON, C.J., BOYD, ENGLAND, SUNDBERG and

HATCHETT, JJ., concur

ADKINS, J., dissents

ORDERED that the Motion for the Entry of an Order

Staying Mandate filed by attorneys for petitioners is here-

by granted and proceedings in this Court and in the Dis-

trict Court of Appeal, Third District, and in the Circuit

Court in and for Dade County, Florida are hereby stayed

to and including July 28, 1977 to allow petitioners to seek

review in the Supreme Court of the United States and

obtain any further stay from that Court.

ORDERED that the Motion for Order Making Peti-

tion for Rehearing Part of the Record and Motion for

A20

Order Making Reply to Response to Motion for Stay of

Mandate Part of the Record are hereby granted.

A True Copy

TEST:

/s/ Sid J. White

Sid J. White

Clerk Supreme Court

ce: Hon. Louis J. Spallone, Clerk

Hon. Richard P. Brinker, Clerk

(with copy for circuit judge)

Hon. Sam Spector

of Spector & Tunnicliff

Hon. William G. Earle

of Kelly, Black, Black & Kenny

Hon. Sam Daniels

Patton, Kanner, Nadeau, Segal, Zeller

& LaPorte

A21

EXCERPTS FROM TRANSCRIPT

Q. (By Mr. Black) Let me ask you this, you don’t

live with Mr. Storer now, do you?

A. No, I haven’t been.

Q. You mentioned a separation, we will call it that

so we will have a non-controversial type word. When did

Mr. Storer officially separate from you?

A. The 25th of January or 26th.

Q. Mrs. Storer, after Mr. Storer met you in the park-

ing lot, did you have any further contact with him or did

you make any further contact with him?

A. Well, I wrote him a letter asking him if he’d

think about it and would he please talk to me, which he

never had.

Q. What if anything did you think about in the way

of your residence after Mr. Storer had' notified you that he

was going to leave you and there was no chance of recon-

ciliation?

MR. NADEAU: I object to what her thinking

was.

MR. BLACK: It is important, your Honor.

THE COURT: Overruled.

THE WITNESS: Well, Florida. I thought of

California and went out and looked at it and decided

I didn’t like it, and came back to Florida.

Q. (By Mr. Black) When did you get back to Florida?

A. I went out the early part of March and I got back

about the 16th of March.

MR. NADEAU: What year, may I ask?

THE WITNESS: This is ’72.

SS

A22

Q. (By Mr. Black) Mrs. Storer, I show you a docu-

ment which has been marked for identification as Plain-

tiff’s Exhibit 1K. I ask you to look at the signatures on

that and see if you can recognize them.

A. Yes. That is mine.

Q. Did you sign that document?

A. It is my signature on it, I certainly must have

signed.

Q. Where were you when you signed it?

A. At my home in Indian Creek Island. It was sent

to me.

Q. Can you tell us what the date was?

A. Ican tell, yes, if I look down here. April 13, 1972.

Q. Then it was after the scheduled time that you were

to go to Wyoming in April of 1972, is that correct?

A. I guess so.

Q. Now, Mrs. Storer, what address did you give him

to send your personal effects?

Beacon Storage Company.

Where is Beacon Storage Company?

In San Diego.

Were those furnishings sent there?

Yes. |

Where are they now?

Right there.

Still there?

Yes.

ere eee -

>OPOPOPO>D