Opinion
April 25, 1950. Rehearing Denied May 26, 1950.
Appeal from the Circuit Court for Hendry County, Lynn Gerald, J.
Davis, Davis McClure, Madison, E. Dixie Beggs and Wm. L. Stewart, Fort Meyers, for appellant.
Henderson, Franklin, Starnes Holt, Fort Myers, for appellee.
This is not a run of the mill divorce case. It stems from circumstances that occur at infrequent intervals. Appellant was a citizen of New Jersey and first met appellee at Reno, the best known divorce mart in this country. Both were in the market for a divorce. This was a danger signal that might have shunted them away from their present difficulty if they had been guided by reason rather than emotions. Instead they courted in haste, married in about thirty days and now have time for repentance. They lived together little more than three years, when she picked up bag and baggage and vamoosed from the husband's board and shelter. Appellee forthwith instituted a separate maintenance suit in the State of New Jersey, which resulted in a judgment for $9600 annual maintenance in her behalf.
In January 1948, appellant filed his bill for divorce in this case alleging that he was a bona fide citizen of Lee County, Florida, that he married appellee in 1933, that no children came of their marriage, that on the first day of July, 1937, appellee deserted appellant and has not lived with him since, that appellee's desertion has been wilful, continued and obstinate and that during the time she lived with appellant, appellee drank intoxicating liquors regularly and got drunk once every two weeks. In her answer appellee denied all the material allegations of the bill of complaint, except the fact of marriage. She charged appellant with excess use of intoxicating liquors and desertion, making it necessary for her to bring suit for separate maintenance wherein the New Jersey Court found that appellant abandoned and deserted appellee. On final hearing the chancellor found the equities to be with appellee and dismissed the bill of complaint. This appeal was prosecuted.
The first and second questions charge error on the part of the chancellor in permitting depositions alleged to have been unseasonably taken, to be first placed in evidence at final hearing, the only basis shown for introducing them at this time being negligence or inadvertence on the part of counsel.
The introduction of these depositions was a matter largely in the discretion of the chancellor. They were taken in various places, the time for taking them was extended, they were filed with the court instead of in the clerk's office and the objections to them were technical. No injury to the plaintiff is shown to have resulted so we hold that no error was committed in their introduction.
It is next contended that the chancellor committed error in refusing appellant a divorce on the ground of habitual intemperance.
At the time this suit was brought appellant and defendant had not lived together for more than ten years. All the evidence on this point had to do with intemperance on the part of defendant prior to their separation. The evidence shows no intemperance on the part of the appellee while they were separated. The chancellor evidently considered the charge too remote on which to predicate a divorce and we think he was correct.
The answer to this and other questions urged, turns on the interpretation of the evidence. Some of the evidence is in irreconcilable conflict. Some of it shows that appellant was a frequent drinker, that he was abusive to appellee, that on one occasion he and his son beat her unmercifully, that soon after the separation he brought another woman in the home with him and continues to live with her, that he travels from. New Jersey to Florida with her at intervals, that they register at the hotels as man and wife and occupy the same room. If this evidence does not meet the technical requirement to prove adultery, it is at least sufficient to show that appellant is in Court with unclean hands. His conduct acts like an opiate rather than a stimulant to the chancellor's conscience.
After all is said, this is a case in which the chancellor was confronted with an ugly picture. Appellant, like his early ancestor, Adam, swallowed the matrimonial bait hook, line and sinker, ejected his wife from the garden, has paid her alimony to the tune of $800 per month for years, but finally got sensitive to the law of diminishing returns and now seeks to erase his folly through the medium of divorce. The primitive precept that a man must support his wife even though he abandon her, is still a part of the law of this country. We have searched the record diligently and, like the chancellor, we fail to find anything that would prompt a court of equity to interfere with the final decree.
His judgment is therefore affirmed.
Affirmed.
ADAMS, C.J., and CHAPMAN, THOMAS and HOBSON, JJ., concur.
ROBERTS, J., dissents.
SEBRING, J., not participating.
This is an appeal from a final decree entered in a divorce proceeding in which the Chancellor found that "the equities of the cause are with the defendant and against the plaintiff," and decreed that "the plaintiff has failed to sustain the issues on his behalf and is not entitled to the relief prayed in and by the Bill of Complaint and said Bill of Complaint is hereby dismissed."
The plaintiff, appellant here, charged the defendant with desertion and habitual intemperance as grounds for divorce. The defendant-appellee in her answer denied the allegations relating to habitual intemperance, denied that she deserted plaintiff, and asserted that, on the contrary, plaintiff had deserted her. She attached to her answer a copy of a New Jersey decree in a separate maintenance suit in which it was adjudged that plaintiff without any justifiable cause had abandoned defendant and separated himself from her; and she alleged that, by reason of such New Jersey decree, the question of desertion was res adjudicata.
It may be stated at the outset that the New Jersey decree is not a bar to the plaintiff's suit in this state on the charge of desertion, under the authority of Roseman v. Roseman, 155 Fla. 750, 21 So.2d 215. As in the Roseman case, the New Jersey decree relied on in the instant case was a decree solely for separate maintenance predicated on an agreement therefor between the parties hereto. Further, it does not appear that the question of plaintiff's desertion of defendant was litigated in the New Jersey court but, on the contrary, the New Jersey decree contains the recital "the defendant [plaintiff here] interposing no defense." Although not relevant on the question of res adjudicata, it may also be noted that, as in the Roseman case, the parties to the suit here reviewed have not lived together for more than a dozen years, during which time the plaintiff has supported the defendant in accordance with the requirements of the New Jersey decree, paying her presently the sum of $9,600 annually. Also, as in the Roseman case, the plaintiff here does not seek to avoid his responsibility for support and maintenance under the New Jersey decree, but seeks only a decree of divorce.
The evidence in this cause consisted of testimony taken before an Examiner and numerous depositions taken in this country and in other countries. The Examiner was not authorized to and did not make any findings of fact or law, and the final decree in the case is, therefore, based solely on a perusal of the record by the Chancellor and the argument of counsel before him. The Chancellor made no findings of fact in his decree, finding merely that the equities were with the defendant and that the plaintiff had failed to sustain the issues in his behalf, as hereinabove recited.
There is some conflict in the evidence as to the circumstances surrounding the defendant's departure from plaintiff's abode, and the evidence adduced by the respective parties as to the habitual intemperance of defendant is in hopeless conflict. Although not pleaded in her answer, the defendant also offered evidence that plaintiff was guilty of habitual intemperance and of adultery, by way of recrimination, we assume. This court has held that recrimination as a bar to a divorce otherwise grantable (except where adultery is the basis of the recrimination) should be fully asserted as an affirmative defense in the answer, and pleaded with the same particularity as a charge in a complaint for divorce. Welch v. Welch, 112 Fla. 590, 152 So. 173. See also 17 Am.Jur., Divorce and Separation, Section 325, page 314. We must assume, therefore, that the Chancellor did not consider the evidence relating to plaintiff's habitual intemperance as a recriminatory bar, in his consideration of this case. As to the recriminatory charge of adultery, it clearly appears that the proof in that respect falls far short of that required to sustain such a charge; and, in the absence of a specific finding of fact to this effect by the Chancellor, we assume that he properly found that defendant had failed to prove that plaintiff was guilty of adultery.
The proof of both parties, as to the habitual intemperance of the other, was confined to the three-year period during which they cohabited, which was more than a dozen years prior to the time of the filing of this suit. This court has never passed on the question of whether or not the habit of intoxication must continue up to the time of the commencement of divorce proceedings in order to support a decree of divorce on that ground. There is a conflict on this question among the courts of other jurisdictions. See 17 Am.Jur., Divorce and Separation, Section 139, page 222. We do not here decide this question, but will assume that the Chancellor chose to believe the testimony of defendant, who denied that she was habitually intemperate, rather than the evidence of her drinking habits offered by plaintiff.
Having disposed of the plaintiff's charge of habitual intemperance and of the defendant's recriminatory charges of habitual intemperance and adultery, we have left, then, only the question of which party deserted the other.
As heretofore noted, the evidence is somewhat conflicting as to the circumstances surrounding the defendant's departure from the abode of plaintiff. It is conceded, however, and recognized in the majority opinion in this case, that the defendant "picked up bag and baggage and vamoosed from the husband's board and shelter;" and it is also admitted by the wife that the plaintiff several times requested her to return home, and that he offered to correct the conditions there to which she objected. The defendant testified that she did not accept these offers or comply with his requests because the plaintiff "wouldn't discharge the servants that made false affidavits against me as I asked him to, and he was going to have a woman dressed in black follow me around and all sorts of conditions were made that made it impossible for me to accept, so I knew he wasn't serious."
The defendant testified that the immediate cause of her leaving the abode of plaintiff was a beating alleged to have been administered to her by plaintiff and plaintiff's son, Raymond Acheson. She testified that, on the morning following the fight, "I took him [the plaintiff] up to the bedroom and showed him what he did. I was beaten all over. I said, `This is what you did and this is what Raymond did.' He said, `How could I have gotten so drunk because I only got beer.' I said, `I am not going to stay here while Raymond is here. At least Raymond was sober while you were not.' He said I could go to New York."
The plaintiff and his son Raymond both testified that the plaintiff had no part in the altercation with defendant, and that plaintiff knew nothing about it until the following morning, when defendant showed him her bruises. The plaintiff also testified that he offered to send Raymond away, if defendant would return to the home.
Even if we consider defendant's testimony as to plaintiff's habitual intemperance as proof of misconduct in connection with her charge of constructive desertion, it is apparent from defendant's testimony that she did not leave plaintiff because of such intemperance, but because of the presence of Raymond in the home. It is also apparent that she did not refuse to return because of plaintiff's habitual intemperance, but because she "knew he wasn't serious." While it is true that, in response to the question "Have you felt that you could safely live with him [the plaintiff] in the condition that he then was from the use of liquor?" the defendant answered "No, definitely not", we think that this leading question and answer is insufficient to overcome the inferences deducible from her positive, unprompted testimony, above referred to.
While we recognize and affirm the rule that a divorce decree sustained by ample, substantial evidence, though conflicting, cannot be disturbed on appeal, McMichael v. McMichael, 158 Fla. 413, 28 So.2d 692; Boyer v. Boyer, 155 Fla. 561, 20 So.2d 899, it is clear that the reasons for the rule fail, and the force and effect of the rule are weakened, when the Chancellor does not hear the testimony of the parties and the witnesses and cannot, therefore, be said to be in a position more advantageous than is this court, as respects the conflicts in and the inferences to be drawn from the testimony. The limitations of the rule have heretofore been recognized by this court in Selinsky v. Selinsky, 160 Fla. 534, 35 So.2d 716, where it was held that the chancellor's decree overruling the finding of a special master, who saw and heard the witnesses, would be reversed if the evidence sustained the finding of the master.
Under such circumstances, and in view of the inconclusive character of defendant's testimony as to the reasons for her leaving the defendant and for her refusal to return, as hereinabove noted, it is the opinion of the writer that defendant failed to prove constructive desertion on the part of plaintiff, as a bar by way or recrimination, and that the evidence was ample to show desertion on the part of the defendant.
For the reasons stated, the final decree should be reversed with directions to enter a decree not inconsistent with this opinion.