Charles Raymond Preston v. Lola Williams Preston, 116 Fla. 246

Per Curiam. This appeal is from an interlocutory order granting complainant temporary alimony, suit money, and counsel’s fees in a suit by her for alimony unconnected with divorce as authorized "by

Section 3197, Revised General Statutes of 1920,

Section 4989, Compiled General Laws of 1927. Appellants contend that the decree appealed from .was error because the 'record discloses that the appellee had deserted the appellant, that the appellee did not have the requisite legal domicile to. file the bill in this cause, that the bill is predicated on acts of cruelty as grounds for divorce, but shows only isolated instances of such cruelty, that the appellee had not been legally divorced from a former marriage, and for other reasons.

We have examined the record in the light of each and every challenge to it and while we do not at this time attempt to adjudicate any of them, even if some of them on final hearing may be established, ample support is found for the decree allowing temporary alimony, suit money, and counsel’s fees, and it is therefore affirmed. Affirmed. Davis, C. J., and Whitfield, Ellis, Terrell and Buford, J. J., concur. Brown, J., absent and not participating because o.f illness. Per Curiam.

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 Sou. 156. It is so ordered. Reversed. Buford, J., concurs. Davis, C. J., and Whitfield and Ellis, J. J., concur specially. Terrell, J., dissents.