(Dissenting.)—The statute,, section 1934 of the General Statutes of 1906, set out above, does hot define the requisites as to residence of the parties to whom it shall apply; but it seems clear that the terms and purposes of the statute do not indicate an intent to enforce the marital rights and duties of a husband and wife when neither of them is a resident of this State. This court has so decided. '
“Public policy, as indicated by our statutes, requires that before parties to the marital state, can invoke the jurisdictional powers of our courts, either to dissolve the relation, or to enforce duties dependent thereon, they must be in a situation to avail themselves of the protection* of our laws.” Under section i486 (Sec. 1934 Gen. Stats.) if either of the parties is a bona fide resident of this State, and the husband, having the ability to maintain or contribute to the maintenance of his wife or minor children, fail to do so, the wife, living with, or .apart from him through his fault, may obtain such maintenance or contribution upon bill filed for such purpose; under this section it is indispensable that either the husband or wife be shown to be a bona fide resident of this State at the time of filing the, bill.” Donnelly v. Donnelly, 39 Fla. 229, 22 South. Rep. 648. In Miller v. Miller, 33 Fla. 453, 15 South. Rep. 222, 24 L. R. A. 137, it was alleged *795that the complainant wife “is a resident and citizen of the State of Florida.” The answer denied this allegation and the. court held that “whether she is in truth a bona fide resident and citizen of Florida * * * is one of the material questions at issue between the parties.” The' actual decision in the case was that “where the application for alimony, * without seeking divorce, is predicated under the provisions of section i486, Revised Statutes of 1892 (Sec. 1934, Gen. Stats. 1906), upon the ability of the husband fo maintain the wife, and his failure so to do, then it is not necessary for the. wife to allege or prove that she has resided here for two years; but in such case, in so far as the question of the jurisdiction of the court to entertain the cause is concerned, it is only necessary for her to show that either she or her husband has, in a proper and legitimate manner, become, at the time of the application, a bona fide resident and citizen of this State. It is immaterial, in the latter case, how long such residence and citizenship shall have continued here prior to the application, but it is not within the spirit or intent of either of these, provisions of the statute to confer upon our courts the power to interfere in any respect with the marital status of citizens of other States, who may be here only on a temporary visit, either to pass upon such status, or to enforce any of the rights and duties that depend thereon.”
In the Miller case as in the subsequent Bronk, Shrader, Donnelly and Wood cases cited in the main opinion, the court used the expression “actually, legally and bona fide domiciled in this State as a citizen thereof,” as meaning, in the connection used, the same as “bona fide resident and citizen of this State.” ' As in every one of these cases thd issue was whether one of the parties was a “resident” and “citizen” of the State, a decision relating *796to “domicile” as distinguished from residence, was not involved. The same is true of Keerl v. Keerl, 34 Md. 21, where the issue was whether “both husband and wifft reside. beyond the limits of the State.” “Domicile” is not a part of our statutes affecting the marital relation. In this case the issue is “residence,” not “domicile.”
The Miller and subsequent cases establish the rule that in applications for maintenance, under Section 1934 of the General Statutes, the complainant wife must show that either she or her husband is a bona fide resident and citizen of this State. But the length of residence or citizenship if established is immaterial under Section 1934 of the General Statutes of 1906. And as mere temporary presence in this State is not sufficient to establish residence and citizenship in the State, so mere temporary absence from the State will not áffect an established residence or citizenship. What is temporary presence or temporary absence with reference to residence or citizenship must be determined from the facts of each case.
It is not encumbent upon the State., if it is within its power, to enforce the marital rights of a wife against her husband when neither of them resides in the State, even though the husband may be. an American citizen and formerly resided in the State, and even though there be evidence tending to show that he may not have acquired a legal “domicile” elsewhere, but does reside in a foreign country under the circumstances shown in this case. The wife will not become a public charge here while she resides without the State; and the delinquency of the husband, if any, is in the country or jurisdiction where he resides or where the wife resides. The court must have jurisdiction of the subject-matter as well as of the parties in this “suit prosecuted as in other chancery causes;” and the subject-matter of this suit is “maintenance or contri*797bution” to the maintenance of the wife who resides in Cuba. Appearance, of the defendant does not give the court jurisdiction of the subject-matter of the suit when the husband and wife are both residents of and live in Cuba.
Section 1933 of the General Statutes of 1906 relates to jurisdiction to decree alimony where causes of divorce exist, while section 1934 relates to jurisdiction to decree the maintenance of a wife by her husband without reference to causes for divorce. If bona fide, residence in this State is required of the complainant under section 1933, when alimony is sought, bona fide residence in this State of at least one of the parties, but for no particular length of time, is also required under Section 1934, since the purpose in each case is to secure support for the wife.
A resident is one. who lives at a place with no present or definite intention of removing therefrom. Tracy v. Tracy, 62 N. J. Eq. 807, 48 Atl. Rep. 533.
The Fourteenth Amendment of the Federal Constitution provides that: “All persons born or naturalized in the. United States and subject to the jurisdiction thereof are citizens of the United States and of the State where they reside.”
In the Slaughter House Cases, 16 Wall. (U. S.) 36, text 74, it was said that “not only may a man be a citizen of the United States without being a citizen of the State, but an important element is necessary to convert the former into the latter. He must reside within the State to make him a citizen of it, but it is only necessary that he. should be born or naturalized in the United States to be a citizen of the Union.” The defendant’s claim that he is an American citizen is consistent with a domicile or a residence in Cuba. He may be a citizen of the United States and not a resident of Florida while he resides in *798or is domiciled in Cuba. Allegiance and domicile are entirely distinct. Jacobs on Domicile, 144. The place where a person lives is taken to be his “domicile” or his “residence.” until facts adduced establish the contrary. Anderson v. Watt, 138 U. S. 694, 11 Sup. Ct. Rep. 449; In re Steer, 3 Hurl. & Nor. (Exch.) 594; Jacobs on Domicile, §377.
The defendant was not allowed to vote in this State, though he was registered and his poll taxes were paid. The constitution provides that an elector “shall have resided and had his habitation, domicile, home and place of permanent abode in Florida for one year and in the county for six months.”
Even if there is doubt as to whether the defendant has intended to change his “domicile of origin” from Florida, yet by giving up his home and business in this State and by his long residence in Cuba, under the circumstances here shown, where he was married, where he and his family had and have their home, where he was and is engaged in business, where he has a burial lot in which he buried one. of his children, and where for years he lived with the complainant as his wife, he is certainly not actually' * ■ domiciled-in this State as a citizen thereof” within the meaning of th'e actual decisions made in the Miller and Wood cases. Nor is the defendant “a bona fide resident of this State” under the decisions in the Bronk, Shrader and Donnelly cases.
. In the appellant’s suit for divorce under section 1928 of the. General Statutes of 1906, filed in 1912, he alleged under oath that “he was born in the City of Key West, in the State of Florida, in i860, where he was reared and where he. has had his domicile for more than two years last past,” and “that he has never abandoned his citizenship in the United States, or changed his domicile from *799Florida.” In 1914, in an answer to this bill for maintenance, brought under section 1934 of the General Statutes of 1906, alleging that the defendant Jerry J. Warren “is a citizen and resident of Monroe County, Florida,” the defendant Jerry J. Warren averred “that he has not resided or had a home in Key West since 1901, but that he did reside and have a home in the Island of Cuba from 1901 until the present time.” These statements do not operate as an estoppel under the circumstances of this case, nor do they confer, jurisdiction.
There is no real inconsistency in the allegations of J. J. Warren that “he was born in * Florida * where he has had his domicile for more than two years last past” and that “he has ne.ver abandoned his citizenship in the United States, or changed his domicile from Florida,” and the averment by him “that he has not resided or had a home in Key West since 1901, but that he did reside and have a home in the. Island of Cuba from 1901, until the present time.” He explains on oath that he intended nO conflict in his statements as to his “domicile” and as to where he resided and had a home. In.this case, it is held that though the defendant resides and has a home in Cuba, yet he is domiciled in this State. He may have formed an intention to remain in Cuba permanently áfter he filed his bill for divorce in April, 1912, and even after his subsequent marriage in August, 1912, and before the filing of this suit on January 8, 1913. His continued residence in Cuba under the circumstances of this case indicate such an intent. He does not appear tb have attempted to exercise any of the rights of a resident or citizen of this State, since his marriage in Connecticut in August, 1912.
Citizenship in the United States does not require residence or citizenship in Florida. Warren may have “had *800his domicile” in Florida and at the same time “reside and have, a home in the Island of Cuba.” And even if his allegation that he “had his domicile” in Florida can be an admission here, that would not give this court jurisdiction under section 1934 of the General Statutes of 1906, which under the Miller and subsequent cases requires one of the parties to be “actually, legally and bona fide domiciled in this State as a citizen thereof,” or to be “a bona fide resident and citizen of this State.” These latter requirements are not satisfied by the. legal fiction of a mere “domicile” in Florida, when both the husband and the wife have their home in a foreign country under the circurfistances shown in this case..