Opinion
April 15, 1952.
Appeal from the Circuit Court, Dade County, Vincent C. Giblin, J.
F.E. Gotthardt, Miami, for appellant.
Evans, Mershon, Sawyer, Johnston Simmons, Miami, for appellee.
Milton B. Edelson and his wife Raye M. Edelson were divorced August 7, 1950. Four days prior to the divorce a property settlement agreement was entered between them and two weeks after the divorce Mrs. Edelson married Bernard Windt. February 11, 1951, more than six months after the decree of divorce was entered, Edelson instituted this suit by bill in equity in which he prayed (1) that the divorce decree dated August 7, 1950, be adjudicated to be null and void, (2) that the property settlement agreement entered into between him and his wife August 3, 1950 be adjudicated to be null and void, (3) that the marriage between Mrs. Edelson and Bernard Windt contracted two weeks after the divorce be declared null and void and (4) order an accounting to plaintiff of all property received by Raye M. Windt (nee Edelson) under the property settlement agreement.
The answer of defendants Raye M. and Bernard Windt denied the material allegations of the bill, the chancellor took the evidence on the issues made by the bill and answer and on final hearing found the equities to be with defendants. He further found that plaintiff failed to prove the allegations of his bill but that defendants proved every material allegation of their answer. He dismissed the bill of complaint and granted the injunctive relief prayed for by defendants. Rehearing was denied and plaintiff appealed.
The pleadings raise two points for consideration. (1) At the time Mrs. Edelson filed her bill for divorce did she show residence in Florida for more than ninety days, that being the time required to confer jurisdiction on the Court? (2) Where rule of Court requires that final decree in divorce cases be not entered within fourteen days after the bill of complaint is filed, can the Court relax the rule and reduce the time for entering such decrees?
Casual examination of the pleadings discloses that this suit is one by bill of review to relitigate and set aside the divorce decree and the property settlement heretofore described in face of the fact that the property settlement was deliberately entered into and executed after thorough consideration in which Edelson was represented by able counsel. It is also shown that Edelson was on notice of the divorce suit, that he was represented by able counsel who appeared at the final hearing but offered no evidence. He purposely refrained from resisting the divorce but admitted inferentially that the evidence was ample to support the decree he now assails. He was promptly advised of his former wife's marriage to Windt but waited more than six months to bring this suit.
The chancellor answered both questions against the contention of appellant. Appellant contends that the chancellor was in error because the record reveals a marital saga precipitated by Mrs. Edelson that was so shocking to the judicial conscience that it should not be tolerated. On the side of good morals there is much to support appellant's contention, but a court of equity must have more than a fling at bad morals to support a decree. In fact, a chancellor who imbibed his code of ethics from approved parental training and the Sermon on the Mount, was early impressed with the doctrine of original sin and the reality of hell fire, could engage the right company any evening and find his fellow citizens in moral conduct offensive to every approved standard of decency. He might find this in social levels that would surprise him.
In adjudicating controversies a chancellor is limited to issues formally presented to him. Unless infractions of the moral code are a part of or materially influence the outcome of the issues before him, they have no part in his decision. Mr. and Mrs. Edelson, the actors in the present marital tragedy, were apparently qualified for the bon vivant social register. Edelson charges that his former wife's conduct was fraudulent and deceitful, that she lied to him about her premarital relation with Windt but the undisputed facts are that they had separated and were living apart, that Edelson was on notice of his wife's divorce suit, that he appeared at the trial by attorney and did not resist it, that he admitted the evidence to support the final decree was sufficient and from what he now avows, the only real question before the chancellor was the sufficiency of Mrs. Edelson's residence in Florida to clothe him with jurisdiction of the cause.
The sufficiency of her residence in Florida was a question of fact and the evidence is ample to support the chancellor's decision. Appellant admitted this so the wail of a lovelorn husband over the alleged vagaries and oblique conduct of a philandering wife had no place in the decision of that point. Under this state of facts we think appellant was estopped to seek relief in a court of equity. Hall v. Hall, 93 Fla. 709, 112 So. 622; Mabson v. Mabson, 104 Fla. 162, 140 So. 801; Rice v. Rice, 148 Fla. 620, 4 So.2d 850; Matsis v. Matsis, 155 Fla. 786, 21 So.2d 545; Masilotti v. Masilotti, 158 Fla. 663, 29 So.2d 872.
As to whether or not the decree of divorce could be entered within fourteen days after the bill of complaint was filed, it is sufficient to say that this being a regulation by rule of Court it is not jurisdictional but may be controlled by the Court. It is shown that appellant's counsel consented to entry of the decree of divorce so as to this he is likewise estopped. Rice v. Rice, supra.
Affirmed.
SEBRING, C.J., and THOMAS and HOBSON, JJ., concur.