Opinion
February 15, 1952.
Appeal from the Circuit Court for Palm Beach County, J.S. White, J.
Robert F. Cromwell, Riviera Beach, for appellant.
No appearance for appellee.
Plaintiff-appellant, Athol W. Mellott, Jr., filed his sworn bill of complaint for divorce in the Circuit Court of Palm Beach County, Florida, against Mary P. Mellott, his wife, and alleged that she was above 21 years of age and resided at 310 South Columbus Street, Alexandria, Virginia; that the parties were married on the 17th day of October, 1942, and cohabited together continuously as husband and wife until September 21, 1950. Three children were born to the marriage — aged 7, 5 and 3, respectively. The plaintiff alleged that he had resided in Palm Beach County, Florida, for a period of more than ninety days prior to the date of filing his bill of complaint on March 14, 1951.
Plaintiff alleged that during the period of cohabitation he provided his wife with a home, supported her according to his financial station in life and fully discharged all duties incumbent upon him as the husband of the defendant; that he had done everything within his power to contribute to the happiness, contentment and welfare of his wife and at all times put forth an extraordinary effort to make their home a cheerful and pleasant abiding place. The wife was 23 years of age and the husband 26 at the time of marriage. The husband now earns about $65.00 per week and sends to his family approximately $100.00 per month.
Paragraphs 5 to 17, inclusive, of the bill of complaint set forth different acts and conduct of the wife toward her husband, the plaintiff, which it is alleged began shortly after the marriage and continued down to the date of September 21, 1950, when plaintiff left his wife. He alleged that his health was adversely affected, due to nagging and an unreasonable attitude of the wife each week during the period of cohabitation; that the several acts and conduct of the wife, as alleged in the bill of complaint, during the period of cohabitation rendered life unbearable. The bill of complaint further charged that the defendant was guilty of extreme cruelty and exhibited continuously toward her husband a violent and ungovernable temper. As we construe the several acts of violence and conduct of the wife over the period of cohabitation, as alleged by the husband in his bill of complaint, it is clear that the several allegations of the bill of complaint meet the requirements of law under applicable statutes and our adjudications in charging that the wife was guilty of cruelty and exhibiting a violent and ungovernable temper toward her husband, the plaintiff.
Service on the wife, Mary P. Mellott, was obtained by publication and a decree pro confesso was entered against her for want of an appearance and her failure to file in the cause an appropriate pleading. The cause was by the Chancellor referred to Honorable James Nemec, as Special Master, with directions to take testimony within a fixed period and make a report to the Chancellor, with his findings of fact, conclusions of law, and recommendations as to a decree to be entered in the premises.
The plaintiff testified that he moved to Palm Beach County on November 30, 1950, and opened an electric business at Lantana, and filed this suit on March 14, 1951, and therefore had resided in the State of Florida for a period of 90 days prior to filing suit. Witnesses F.D. Carroll and Caesar Campana each testified that the plaintiff had resided in the State of Florida for a period of more than 90 days prior to filing this suit. It appears from this testimony that Mellott had opened an electric shop, which he is now operating at some point in Palm Beach County. He bought a lot and is planning to build or construct a home.
The testimony of the husband taken before the Special Master established the material allegations of the bill of complaint going to the points of extreme cruelty and the exhibition by the wife of a violent and ungovernable temper. A Mr. Rodgers, of Arlington, Virginia, testified that for a period of nine months he worked for Mellott and was in the home each morning and some of the evenings during the period and observed the wife's treatment of the husband. This witness testified as to abusive language used by the wife toward the husband. He also testified that he saw the wife strike her husband on many occasions. He expressed the view that the success of the marriage was simply impossible. Sylvia Leatherland, a sister of the plaintiff, visited frequently in the home and for two and one-half years was a next door neighbor of the parties. The testimony of the three witnesses clearly established extreme cruelty and an ungovernable temper on the part of the wife.
The Special Master interrogated the plaintiff about his children, their custody, a decree of the Virginia Court requiring him to pay his children the sum of $200.00 per month, and about his compliance with the decree as to payments from time to time. Certain property rights of the parties were gone into. The Special Master recommended that a final decree of divorce be entered by the Chancellor and that the litigation between the parties in the State of Virginia was not a bar, neither did it preclude the entry of a divorce by the Chancellor.
On May 22, 1951, the Chancellor below entered an order re-referring the cause to the Special Master, with directions that further testimony be taken on the questions previously involved in the litigation between the parties in the State of Virginia. A copy of the bill of complaint filed in the Circuit Court of the City of Alexandria, Virginia, by the wife, Mary W. Mellott, against her husband, Athol W. Mellott, Jr., was received by the Master and filed as Exhibit No. 1 in the cause. Also a copy of an order dated November 14, 1950, which required the husband to pay to Mary W. Mellott the sum of $200.00 per month for the support of the wife and the three children. This order is identified as Exhibit No. 2. The final decree awards the custody of the children to the mother and requires the husband to pay each month for their support the sum of $200.00.
The final decree further recites: "that the parties hereto last lived together as man and wife on the 21st day of October, 1950, at which time the defendant without just cause or excuse, abandoned and deserted the complainant and his children, with no intention of returning; that since then the parties hereto have not lived together as man and wife, and there is now no chance of any reconciliation between them. That the complainant (Mary W. Mellott) is therefore entitled to the relief prayed. * * * It is therefore, hereby adjudged, ordered and decreed that the complainant, Mary W. Mellott, be and she is hereby awarded a limited decree of divorce a mensa et thoro, from the defendant Athol W. Mellott, Jr., with the privilege of merging the same into an absolute decree of divorce, after the passage of the statutory period of time." It appears by the record in this cause that the only issue involved in the litigation between the parties hereto in the State of Virginia was that of desertion and in no manner involved the issues of extreme cruelty and ungovernable temper exhibited by the wife toward the husband, and therefore the issues presented here were not res adjudicata in the Virginia litigation.
The Special Master, after taking testimony for the second time, filed his written report and by the terms thereof recommended that the Chancellor enter a final decree of divorce according to the prayer of the bill of complaint, but that the Court should retain jurisdiction of the cause for the purpose of enforcing, if necessary the terms of the final decree entered by the Virginia Court requiring Athol W. Mellott, Jr., to pay the sum of $200.00 per month for the support of Mary P. Mellott and their three children. It was the Special Master's view that such an order could be entered under our case of Reynolds v. Reynolds, Fla., 41 So.2d 310. The Special Master further held that the final decree of the Virginia Court rested on the ground of desertion and was not res adjudicata to the statutory grounds of extreme cruelty and a violent and ungovernable temper, upon which the present suit is based. The Chancellor below disapproved the recommendations of the Special Master and dismissed the bill of complaint on the authority of Maclay v. Maclay, 147 Fla. 77, 2 So.2d 361. The plaintiff appealed.
We have reviewed carefully our case of Maclay v. Maclay, supra, upon which the able Chancellor bottomed his order of dismissal. It is true that some of the language employed in the case would appear to sustain the order appealed from, but the Maclay suit actually involved a proceeding had in the State of New York. It is our view and conclusion that Bagwell v. Bagwell, 153 Fla. 471, 14 So.2d 841, and Coleman v. Coleman, 157 Fla. 515, 26 So.2d 445, enunciate the rule applicable to this controversy.
The order appealed from is reversed with directions to enter a final decree of divorce according to the prayer of the bill of complaint.
SEBRING, C.J., and ROBERTS and MATHEWS, JJ., concur.