
    In re GUARDIANSHIP OF Florence M. MICKLER.
    No. E-6.
    District Court of Appeal of Florida. First District.
    April 9, 1963.
    Rehearing- Denied May 6, 1963.
    
      Brannon, Brown, Norris & Vocelle, Lake City, and Joe A. McClain, Dade City, for appellant.
    Jopling & Darby, Lake City, for appellee.
   RAWLS, Judge.

On July 18, 1961, the County Judge of Taylor County, adjudicated Florence M. Mickler an incompetent upon a petition filed by the appellee, Eula L. Hendricks, who on August 29, 1961, filed a petition with said County Judge praying that she be appointed guardian of the person and property of Florence M. Mickler, an incompetent, and letters of guardianship were issued to her on said date. Appellant, a distant cousin of Mrs. Mickler, filed a petition for revocation of guardianship, in which she alleged that she was Mrs. Mickler’s closest living relative, and that procedural defects existed in the initial appointment of appellee as guardian of the person and property of Mrs. Mickler. From an order denying the petition for revocation, appellants have prosecuted this appeal.

The critical question presented on this appeal is the proper venue for appointment of a guardian, it being appellant’s contention that venue for such purpose on the date of appointment was lodged in Hernando County and appellee’s contention that venue was lodged in Taylor County. F.S. § 744.11, F.S.A., provides:

“(1) If the incompetent is a resident of this state, the venue shall be in the county where the incompetent resides. * * * [Emphasis supplied.]
“(4) Whenever the domicile of an incompetent is changed to another county, the guardian of said incompetent may, by filing a petition, in which the facts concerning said change of domicile are stated, have the venue of said guardianship changed to the county of the acquired domicile.”

So, the question resolves itself upon the factual proof as to Mrs. Mickler’s residence on August 29, 1961, that being the date of appointment of her guardian.

Florence M. Mickler, age 81 at the time of these proceedings, was for a long time a resident of Brooksville, Florida. Evidence presented in this cause reflects, without contradiction, that she moved to Brooksville in 1904 for the purpose of teaching school and taught one of the witnesses in 1920 or 1921; that to two witnesses she was a long time friend of more than fifty years, and during such time Mrs. Mickler was a resident of Brooksville; that she married in Brooks-ville, and her husband while living there served as “Clerk of the Court;” that she owned and occupied her home in Brooksville for many years and was occupying same on July 9, 1961, another crucial date in the pattern of these events.

The appellee acknowledged that Mrs. Mickler was a resident of Brooksville for the last thirty-six years, but insists Mrs. Mickler changed her residence to appellee’s home in Perry, Taylor County, Florida. The occasion for this change of residence as related by appellee is that on Sunday, July 9, 1961, Mrs. Mickler telephoned her and stated: “Come and get me, they are going to send me to the crazy house.” Appellee drove from Perry to Brooksville and stayed in Brooksville with Mrs. Mickler until Wednesday, July 12, during which time she “got the alcohol out of her”, “took her to the beauty parlor” and brought her back to appellee’s home in Perry. While in Brooks-ville on this occasion appellee visited the County Judge of Hernando County and discussed with him briefly Mrs.’ Mickler’s affairs. In addition, appellee testified that Mrs. Mickler had for many years visited her every summer for a month or six weeks.

It is appellee’s position that a few days after returning to Perry Mrs. Mickler made her decision to become a resident of Taylor County, Florida, and that this decision was founded upon her fears that “They were going to send her to the crazy house.” On July 18, 1961, appellee instituted proceedings in Taylor County resulting in Mrs. Mickler’s being adjudicated incompetent by reason of senile dementia.

A change of legal residence may be accomplished by a good faith intention to acquire a new domicile coupled with actual removal. The effectiveness of such change is dependent upon the concurrence of both fact and intention. The governing principles have often been quoted as follows :

“In Phillmore’s Law of Domicile (page 18), quoted with approval by this court in Smith v. Croom, 7 Fla. 81, it is said that ‘domicile’ answers very much to the common meaning of our word ‘home.’ Used in this connection, ‘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. The term ‘domicile’ was defined by the Roman law to mean:
“‘In whatsoever 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.’ ”

It is uncontroverted that Mrs. Mickler’s “home”, domicile and residence was in Brooksville, Hernando County, on July 10, 1961. This record is devoid of any testimony by Mrs. Mickler as to her intentions to abandon this residence. The sole evidence going toward a change of residence by Mrs. Mickler is the testimony of appellee, .which when viewed in the light of appellee’s own appraisal of Mrs. Mick-ler’s mental and physical condition during the period of time immediately preceding her judicial determination of incompetency fails to meet the burden of proof requisite to establish that Mrs. Mickler made a change in her residence. This testimony is: “ * * * She was in the condition, physically and mentally — I mean, she just didn’t know how to express where they were going to send her * * * and you could see that she [Mrs. Mickler] needed help. She was weak and I had the doctor come around to see her and she had just been out of the hospital * * *. She told me she wanted to stay and wanted me to take care of her.” Intention of such a change of residence must be shown by positive overt acts and one must have the necessary mental capacity to form such an intention. Construing the foregoing together with other material testimony by appellee, it is apparent that this record is devoid of those positive overt acts which are necessary to establish a change' of legal residence on the part of Mrs. Mick-ler.

Notwithstanding the proper distinctions in point of law between the terms “jurisdiction”, “venue”, “domicile”, and “residence” as words of art, it is well known that even the most erudite savants of the law sometime fall into the rather common error of using the terms “jurisdiction” and “venue” interchangeably, and likewise err in the use of the terms “domicile” and “residence”. The tendency to thus err occurs no less frequently among our brethren of the legislative branch of government as with ourselves. It is because of this among other fallacies of expression that courts of appeal, in the calmness of deliberation afforded by the appellate process, exercise the power of interpreting the legislative intent and of construing prior judicial decisions.

There is a vital distinction between jurisdiction of a court over a particular subject matter — controversies involving a specific field of law — once it has obtained jurisdiction over the person — -as compared to the power of the court to exercise jurisdiction over the subject matter where it lacks jurisdiction over the person, and it is the latter that pulls the cart. There are very obvious reasons why jurisdiction over the person upon the question of his incompetency is vested by statute (F.S. § 394.22, F.S.A.) in the county judge’s court of any county in the state where he “resides or may be foundand there are equally compelling reasons why jurisdiction over the person of an incompetent, for the purpose of guardianship proceedings, should be vested exclusively in the county where the incompetent resides, and we think that was the legislative intent. We interpret the word “venue” as used in F.S. § 744.11(1), F.S.A., as denoting a limitation upon jurisdiction to entertain guardianship proceedings over the person and property of an incompetent, and we interpret the word “resides” as-used therein to mean the last place of legal' residence of the incompetent in this state prior to the adjudication of incompetency.. We also hold that the word “domicile” as-used in F.S. § 744.11(4), F.S.A., supra, has reference to the legal domicile of the' incompetent; and that the term “venue” as. used therein has the same connotation as we ascribe to it in construing subparagraph (1), of the statute.

In so holding we are not unmindful of the line of decisions holding that persons sui juris are deemed to have waived the privilege afforded by venue statutes unless they timely assert it. We believe, however, that the rule has no application to the rights and powers of those dealing with the persons and estates of incompetents, the protection of whose interests forms the underlying thread of all legislation touching upon them. In furtherance of that objective, it seems evident that the legislative intent was to rigidly fix jurisdiction in guardianship proceedings in the forum where in all likelihood the incompetent’s estate is located. Indeed, the rationale of the provisions of F.S. § 744.11(4), F.S.A., affording a means for transferring the guardianship to another place upon a proper showing of fact, is that the legislature recognized the possibility of circumstances providing an exception to the requirements of subparagraph (1) of said section.

We have reviewed the case of In re De Hart in which the District Court of Appeal, Second District, held that venue for guardianship proceedings could under certain circumstances be waived. We distinguish the De Hart decision from the instant cause upon the facts. There, the next-of-kin, sui juris, had filed his waiver to be appointed as guardian; here, no notice was given to the next-of-kin, nor any waiver executed; there, the County Judge of the minor’s resident county authorized the removal of the minor to the County where guardianship proceedings were had; here, although the County Judge of the incompetent’s resident county was consulted by the appellee, she testified that “She just wanted to get some information” from the Her-nando County Judge about Mrs. Mickler’s affairs. It is significant that no evidence reflects that the Hernando County Judge authorized the removal of Mrs. Mickler from her place of residence.

Extensive space in the parties’ briefs has been devoted to the sufficiency of the incompetency proceedings and the ultimate effect that same had upon the instant cause; however, the petition for revocation of guardianship initially filed in this cause did not attack the incompetency proceedings and the lengthy dispute between the parties was directed toward the effect such incompetency proceedings had upon the ultimate question, that being the revocation of guardianship. In view of our above conclusion we, therefore, pretermit any consideration of those matters directed toward the incompetency proceedings.

The trial judge is directed to grant the relief prayed for in appellant’s petition for revocation of guardianship.

Reversed.

STURGIS, Acting C. J., concurs.

WIGGINTON, J., dissents.

WIGGINTON, Judge

(dissenting).

I regret the necessity for respectfully dissenting'from the majority opinion rendered by this court.

A study of the record in this case persuades me to the view that the majority has held as a matter of law that jurisdiction and venue are synonymous, and that domicile and residence are likewise synonymous. The terms “jurisdiction”, “venue”, “domicile” and “residence” are words of art, each of which have separate and distinct meanings in the law.

The clear import of the majority opinion is that a guardianship proceeding may be instituted only in the county of the incompetent’s domicile, and if the proceeding is instituted in any other county, the court of that county is without jurisdiction.

The Constitution of this State vests in the County Judge’s Courts of Florida original jurisdiction to grant letters of guardianship. F.S. Chapter 744, F.S.A., prescribes the procedure to be followed in obtaining the appointment of a guardian for the person and estate of an incompetent. The statute makes a clear distinction between the terms domicile and residence.

Section 744.10 provides that the domicile of a resident ward is the county in which the guardian of the person is lawfully appointed. The next succeeding section of the statute, § 744.11, provides that the venue in proceedings for the appointment of any guardian for an incompetent resident of this state shall be in the county where the incompetent resides. If the Legislature had intended to restrict the institution of guardianship proceedings only to the county in which the incompetent is domiciled, it most certainly would have said so. The Legislature never intended for the domicile of the incompetent to control the venue of proceedings for the appointment of his guardian, but on the contrary provided that such proceedings be instituted in the county where the incompetent may be residing at the time the proceedings are instituted. The majority opinion holds that the Legislature did not know the difference in meaning between the words “domicile” and “residence” when it employed those terms in the enactment of the Florida Guardianship Law. I am aware orf no precedent, and none has been cited, which sanctions indulgence in such an unwarranted assumption as a proper principle of statutory construction.

In the case we now review it appears without conflict that Mrs. Mickler, formerly domiciled for many years in Hernando County, became apprehensive that some persons residing in her hometown were going to have her committed to a mental institution, and therefore requested appellee to come and rescue her. Appellee traveled from her home in Perry to Mrs. Mickler’s home in Brooksville, and after satisfying herself of Mrs. Mickler’s intention and desire to leave the latter community, brought her to appellee’s home in Perry where she commenced caring for her. There is no conflict in the evidence that Mrs. Mickler was residing in the home of appellee at Perry for a period of approximately one week before appellee became convinced that she was not capable of caring either for herself or her property. It was then that ap-pellee petitioned the County Judge’s Court of Taylor County for a committee to examine the mental competency of Mrs. Mickler, which resulted in the entry of a judgment of incompetency.

The evidence affirmatively establishes that Mrs. Mickler was residing at Perry in Taylor County, Florida, and had been so residing for a period of some six weeks prior to the filing of the petition for appointment of a guardian. Under these circumstances there can be no question but that Taylor County was the proper venue for institution of the guardianship proceedings, since that was the county in which the incompetent was residing at the time the proceedings were instituted as provided by statute. The fact that prior to the adjudication of incompetency Mrs. Mickler may have been domiciled in Hernando County for many years prior to the time she took up her residence with appellee in Taylor County is wholly immaterial.

Secondly, even conceding for the sake of discussion that Taylor County was not the proper venue for institution of the guardianship proceedings, it cannot be questioned that the County Judge’s Court of that County had jurisdiction over the person of the incompetent and the subject matter of the proceeding. This jurisdiction is vested in County Judge’s Courts by the Constitution of this state. It is so fundamental as not to require an extensive citation of authorities to support the principle that all venue statutes are designed exclusively to serve the convenience of the parties who are called upon to defend a civil action instituted in the courts of this state. It has been uniformly held that the issue of improper venue is an affirmative defense which one may timely assert by appropriate pleadings, or which may be waived. The only manner in which the issue of improper venue may be raised is by motion to dismiss

the proceedings on that ground, or by incorporating such ground as a defense in such responsive pleadings as may be filed to the petition or complaint. Unless the question of improper venue is timely raised in the manner above stated, it is considered waived and no longer can be interposed as a defense to the proceeding. The statute provides that where a case is laid in a wrong venue and no timely objection is made thereto by one or more of the parties, the court may proceed to a final disposition of the case which shall be binding on the parties.

This question was squarely raised and decided by the Second District Court of Appeal in the De Hart case. In De Hart it was held that when a court has jurisdiction, it has power, in the absence of an objection to the venue, to render a judgment binding on the parties. It was further held that an objection that the venue of an action is laid in the wrong county, where the court in which the action is brought has jurisdiction, is a dilatory one which can be availed of only if timely objection is made. The court held that clearly a failure to raise the objection before trial that an action was instituted in the wrong county will operate as a waiver of the objection.

The majority opinion attempts to distinguish De Hart on two factual grounds. It is first asserted that in the latter case the next of kin filed his waiver to be appointed guardian of the minor involved in that proceeding, whereas in the case now considered no such waiver was executed. The next of kin in De Hart was the minor’s grandfather who resided in Pinellas County where the guardian was actually appointed, and not in Dade County where the minor was previously domiciled and resided. If this fact were of any importance to the ultimate decision, it seems clear from the opinion that had the grandfather petitioned for appointment as guardian of the minor, he would have been eligible for such appointment by the county judge of Pinellas County without violating the venue provision of the statute respecting residence of the minor, even though the latter’s previous domicile and residence had been in Dade County.

The majority next asserts that in De Hart the county judge of the minor’s resident county authorized his removal to Pinellas County where the guardianship proceedings were instituted and the guardian appointed, whereas in the case now reviewed no such authorization was given by the county judge of Mrs. Mickler’s previous domicile in Hernando County. In De Hart it might have been necessary to secure authorization of the county judge of Dade County for removal of the minor to Pinellas County since that case involved a dependent minor who was a natural ward of the court in the county of its domicile, and whose custody is controlled by statutes relating to minors. We know of no authority, and none has been cited in the majority opinion, which requires such authorization in the case of adults prior to an adjudication of incompetency. The factual distinctions between De Hart and this case are irrelevant, immaterial and in no manner render inapplicable the rule of law announced in De Hart with respect to waiver of an objection to improper venue.

The issue of improper venue was not raised as a defense to the guardianship proceedings, but is relied on as a ground for removal of the guardian in this collateral proceeding brought not by the incompetent directly affected by the proceeding, but by distant relatives residing in Columbia County, and at a time long after issuance of letters of guardianship. The issue of improper venue not having been timely raised, it may not later be asserted as a ground for collateral attack upon the judgment appointing the guardian in this case.

The Florida Guardianship Law specifies twelve reasons or grounds upon which a guardian, once appointed by a court having jurisdiction, may be removed. The remedy provided by this statute is exclusive. An examination of the statute reveals that improper venue of the court appointing the guardian is not specified as one of the grounds for his removal. I therefore find it difficult to understand how this court may with propriety order a guardian to be removed for a reason and upon a ground not authorized by law. The only justification for such a direction by this court could be upon a showing that the court appointing the guardian lacked jurisdiction over the subject matter of the proceeding, or over the person of the incompetent. Since the majority opinion orders that the guardian be removed on the ground that the appointing court was not the proper venue for institution of the proceedings, I am persuaded that the majority has confused venue with jurisdiction, and has erroneously treated the two terms as synonymous.

For the reasons set forth above it is my view, and I would so hold, that the order entered by the County Judge of Taylor County denying the petition to revoke the letters of guardianship issued to appellee, Eula L. Hendricks, was proper and should be affirmed. 
      
      . She was joined in this petition by’ appellant Rudy J. Inman, another distant cousin, on January 29, 19C2.
     
      
      . Appellee testified that she just wanted to get some information from the Her-nando County Judge and did not consult him about guardianship.
     
      
      . Wade v. Wade, 93 Fla. 1004, 113 So. 374, 375 (1927) ; Bloomfield v. City of St. Petersburg Beach, 82 So.2d 364, 368 (Fla. 1955).
     
      
      . Smith v. Croom, 7 Fla. 81 (1857).
     
      
      . Miller v. Nelson, 160 Fla. 410, 35 So. 2d 288 (1948); Matthews v. Matthews, 141 So.2d 799 (Fla.App.1st, 1962).
     
      
      . In re De Hart, 114 So.2d 13 (Fla.App.2d, 1959).
     
      
      . Polar Ice Cream & Creamery Company v. Andrews, (Pla.App.1962) 146 So.2d 609.
     
      
      . Rule 1.11(b), 1954 R.C.P., 30 F.S.A.
     
      
      . 34 Fla.Jur. — Venue, p. 39, § 34.
     
      
      . F.S. Section 53.17, F.S.A.
     
      
      . In re De Hart, a minor, (Fla.App.1959) 114 So.2d 13.
     
      
      . F.S. See. 740.03, F.S.A.
     