#### Doris Overton HUNT, Appellant, v. William Alexander HUNT, Appellee.

No. 72-972.

District Court of Appeal of Florida, Fourth District.

June 29, 1973.

Jerry S. Luxenberg and J. Russell Hornsby of Law Office of J. Russell Hornsby, Orlando, for appellant.

Robert F. Vason, Jr., and C. Welborn Daniel, Clermont, and Neal D. Huesbch, Eustis, for appellee.

OWEN, Judge.

The issue in this case is whether the defendant, who is now and has been continuously since 1966 actually residing in Orange County, Florida, is a resident of that county for venue purposes despite the fact that his “legal residence” or “domicile” is or may be in Lake County. We conclude that this question should be answered in the affirmative.

Appellant filed her petition for dissolution of marriage in the Circuit Court of Orange County. The appellee-husband filed a motion under Rule 1.060(b), RCP 30 F.S.A., asserting the privilege under F. S. Section 47.011, F.S.A. to have the suit transferred to Lake County as the county of his residence. At the hearing on the motion it was shown that the parties were married to each other in 1936 and established the family domicile in Lake County; that in 1966, the County Judge’s Court of Lake County entered an order adjudicating the husband imcompetent, and upon a finding that the husband was at that time a patient in a nursing care institution located in Orange County, Florida, ordered that he remain in such institution and continue with treatment until further order of the court; that the husband has remained in the nursing care institution continuously since that time and is now 81 years of age with no indication that he will leave the institution during his lifetime. The court *64granted the motion to transfer, and it is this order which we review.

Assuming that the “domicile” of the defendant-husband is Lake County, (see F.S. Section 744.10, F.S.A.; In re Estate of Phillips, Fla.App. 1966, 190 So.2d IS) the venue statute, F.S. Section 47.011, F.S.A., is concerned with the county of a defendant’s “residence”. Our Supreme Court has recognized the clear distinction between the terms “domicile” and “residence”, the latter indicating the place of abode, whether permanent or temporary. Minick v. Minick, 1933, 111 Fla. 469, 149 So. 483. We expressly hold that the defendant-husband, appellee herein, having actually resided in Orange County continuously from 1966 to the time of the filing of this suit, was in fact a resident of Orange County within the contemplation of the venue statute and as such could not complain of being sued in that county.

The order transferring this cause to Lake County is reversed and this cause remanded in further proceedings.

Reversed and remanded.

WALDEN, J., concurs specially.

CROSS, J., dissents with opinion.

WALDEN, Judge

(specially concurring) :

I concur completely with the opinion prepared by Judge Owen and agree that it represents the majority opinion of this court in the disposition of the instant appeal.

I do, though, presume to add yet another ground which I believe supports our decision to reverse and remand.

The wife, as stated, filed this suit in Orange County and this became presumptively the proper legal arena as a matter of venue. And if the husband was dissatisfied the burden of proving that venue was improper was his. Here the only proof indicating that venue was incorrectly lodged in Orange County was the naked unsworn averment of counsel with reference to the issue that “this action was not brought in the county where the respondent husband legally resides or where the cause of action, if any, occurred.” Under these circumstances, by the very opinion of this court reported at Stolley & Associates, Inc. v. Lawrence, Fla.App.1971, 243 So.2d 446, the showing was insufficient to form a basis for a transferral of venue. It is, of course, clear that the husband has physically resided in Orange County since 1966. Thus, even if domicile is a necessary ingredient and must coincide with residence with reference to the statute, there is no showing that the husband, although legally adjudicated incompetent, did not have such mental capacity as to form an intent to establish a new domicile in Orange County. Matthews v. Matthews, Fla.App.1962, 141 So.2d 799.

CROSS, Judge

(dissenting):

I respectfully dissent.

While I am in agreement with the majority opinion that a clear distinction exists between domicile and “resides,” I cannot agree that “resides” is satisfied by merely bodily presence. See Sherman v. Collin, 117 F.Supp. 496 (D.Me.1953); Rich Products Corp. v. Diamond, 51 Misc.2d 675, 273 N.Y.S.2d 687 (1966). To reside at a place, a *freely-exercised intention*to live there must be coupled with actual presence. See generally Uebersee Finanz-Korporation, A. G. v. Brownell, 133 F.Supp. 615 (D.D.C. 1955); American Surety Co. v. Cosgrove, 40 Misc. 262, 81 N.Y.S. 945 (1903).

In the case sub judice, the husband was taken to Orange County and placed in a nursing care institution for the sole purpose of receiving medical treatment and care which he required due to his incompetency. The husband has no choice but to remain in Orange County at the nursing care institution and he could not leave that *65institution if he so desired. It is also clear that the husband is incapable of forming a freely-exercised intent to live in Orange County in view not only of his incompetency but also of the fact that he is compelled to remain at the institution. Under these circumstances, I do not believe that the husband "resides” in Orange County for venue purposes.

I would affirm the order transferring the case to Lake County, the place of defendant’s residence.