Summary
In Mathews, there were no facts showing any degree of fault on behalf of the husband and the court held in a split decision that the award of alimony was justified "by an equitable consideration of the whole record...."
Summary of this case from Krieger v. KriegerOpinion
Opinion Filed October 22, 1934.
An appeal from the Circuit Court for Lake County, J. C. B. Koonce, Judge.
P. C. Gorman and Petteway, Brown Petteway, for Appellant;
Wells Hall and Gaines Futch, for Appellee.
This appeal is from a decree granting the husband a divorce on the ground of desertion by the wife and awarding fifty dollars a month alimony to the wife. There is evidence legally sufficient to sustain the decree of divorce and it does not appear on cross assignments of error that the decree allowing alimony is not justified by an equitable consideration of the whole record, therefore the decree is affirmed as an entirety.
Affirmed.
WHITFIELD, ELLIS and BUFORD, J. J., concur.
DAVIS, C. J. — dissents.
BROWN, J., concurs in part and dissents in part.
TERRELL, J., not participating.
In this case the Chancellor granted the husband a divorce on account of the willful, obstinate and continued desertion of the wife for the statutory period, but in his decree the Chancellor stated "a faithful wife for forty years is entitled to consideration even though at the end she should desert the husband and the burden of contribution might be a heavy one for the husband, therefore he allowed the wife $50.00 per month alimony, stating as he did so that he was going to override legal technicalities in order to accomplish a good result.
This is a government of laws and not a government of men. It is debatable as a proposition of moral policy whether a wife who deserts her husband at the time in life when the shadows of life's sunshine begin to lengthen backward on the traveled path toward the inevitable western sunset, but be that as it may, there is no legal or equitable precedent that I have been able to find which undertakes to treat matrimony as a sort of annuity affair and attribute to it a cash surrender value, even though the party making the surrender and claiming the cash value of it in the form of alimony, has been a faithful performer of the marital contract for forty years.
Therefore I cannot concur in that part of the decree which awards the deserting wife alimony against her faultless husband.
I concur in affirming the decree below except insofar as it awards permanent alimony. See Sections 4987-88 Comp. Gen. Laws and Phinney v. Phinney, 77 Fla. 850, 82 So. 357; Gill v. Gill, 145 So. 758; 107 Fla. 588. While much could be said in favor of the natural justice and equity of the Chancellor's allowance of alimony in this case, it appears that such ruling is not authorized by our statutes, and, indeed, is contrary to the implications and intendments of such statutes as heretofore construed.