Opinion
October 14, 1952. Rehearing Denied November 12, 1952.
Appeal from the Circuit Court for Volusia County, H.B. Frederick, J.
Dan R. Warren, Daytona Beach, for appellant.
Walter A. Shelley, Daytona Beach, for appellee.
The plaintiff, husband, filed suit for divorce alleging that the wife was guilty of wilful, obstinate, and continued desertion for the statutory period of one year. The wife in her answer denied this and filed a counterclaim against the husband for alimony, alleging the husband deserted her. Issue was joined when husband denied the allegations in the counterclaim.
An examiner took the testimony of the plaintiff and all of his witnesses but one whose testimony was taken by deposition. The plaintiff, husband, after the hearing before the examiner, filed an amended complaint in an apparent attempt to allege extreme cruelty in addition to the other charge of desertion.
The wife then filed her answer denying the allegations in the amended complaint and filed her suit for divorce in the form of a counterclaim alleging desertion; to which an answer was filed by the husband denying desertion. Testimony of the wife was taken by deposition, and no further testimony was presented by the plaintiff, husband. At final hearing the chancellor decreed a divorce in favor of the husband and required him to pay attorney's fees to the wife for the defense of her suit.
Neither in his bill of complaint, nor in his evidence, did the plaintiff, husband, meet the test of extreme cruelty, as set forth in many decisions of this Court. See Hickson v. Hickson, 54 Fla. 556, 45 So. 474; Chisholm v. Chisholm, 98 Fla. 1196, 125 So. 694; Harmon v. Harmon, Fla., 40 So.2d 209.
In respect to the question as to which party is guilty of wilful, obstinate and continued desertion for one year, the testimony shows that the husband took the wife to Rhode Island to visit her people and returned to Florida immediately. Letters from the husband to the wife were received in evidence which the husband admitted writing, in which he informed his wife that "You and I are through." On another occasion another letter informed his wife "I told you in a letter before that I was through * * *."
The plaintiff, husband, left the wife in Rhode Island on August 3, 1947, and the above referred to letters were received by her in August and November, 1947.
The plaintiff, husband, said he had asked his wife to come back to him and kept an apartment for her to come back to, but nowhere can we find any evidence other than his own that he made any effort to get her back; but the letters would indicate that he was through with his wife.
It would seem that the plaintiff, husband, by his conduct, was the one who desired to bring the marital relations to a close, and did bring them to an end. See Stevenson v. Stevenson, 84 Fla. 678, 94 So. 860.
It follows therefore that the final decree granting a divorce to the plaintiff, husband, should be reversed, that an order should be entered granting a final decree of divorce to the wife, and that appropriate alimony awards and attorney's fees should be made to the wife in accordance with the wife's needs and the ability of the husband to pay. Accordingly the decree appealed from is reversed with directions that a decree be entered in accordance with this opinion.
It is so ordered.
SEBRING, C.J., and ROBERTS and MATHEWS, JJ., concur.