Opinion
No. 69-380.
December 30, 1969.
Appeal from the Circuit Court for Dade County, John J. Kehoe, J.
Sinclair Louis, Miami, and Thomas J. Dowdell, III, Marathon, for appellant.
Alex E. Carlson, Miami Springs, for appellee.
Before CHARLES CARROLL, HENDRY and SWANN, JJ.
The defendant-wife appeals a final judgment which granted the plaintiff-husband a divorce on the ground of desertion, and denied her claim for alimony and certain expenses in connection with her defense of the suit.
It is appellant's contention that the testimony is insufficient to support the husband's allegation that she was guilty of desertion as defined by § 61.041(7) Fla. Stat., F.S.A. The above cited statute requires a spouse seeking divorce on the grounds of desertion to show that such desertion was "wilful, obstinate and continued * * *" for a period of one year.
We find merit in the appellant's contention that the complained-of desertion was not "continuous" for a period of one year immediately prior to the commencement of the law suit, as contemplated by the statute. See Fisher v. Fisher, Fla.App. 1961, 134 So.2d 277; Walker v. Walker, Fla. App. 1960, 123 So.2d 692.
Therefore, the final judgment of divorce is reversed.