Opinion
No. 57-53.
September 26, 1957.
Appeal from the Circuit Court, Dade County, Robert L. Floyd, J.
Hendricks Hendricks, Miami, for appellant.
Michael J. Zyne and Frank B. Byron, Miami, for appellee.
The appellant, plaintiff in the lower court, has appealed from a final decree denying his petition for divorce and granting the appellee separate maintenance. The appellant has charged the appellee with extreme cruelty.
The main grounds upon which the appellant seeks a reversal of the decree of the lower court are: (1) That the lower court misconceived the weight and sufficiency of the evidence to support the appellant's petition for divorce, and (2) That the lower court was in error in awarding the appellee separate maintenance, unconnected with causes of divorce.
The record reflects that the parties were married May 18, 1955, and that the appellant's action for divorce was begun January 27, 1956. The appellant complains that the appellee abused and nagged him, called him vile names, alienated him from his friends and continually harassed him over trivial and inconsequential matters. He described occasions to exemplify his charge of abusive and nagging conduct by the appellee, contending that her course of conduct constituted mental torture and extreme cruelty; that this conduct rendered the discharge of his marital duties impracticable and impaired his health. Appellee denied these accusations and counterclaimed for separate maintenance unconnected with causes of divorce.
The chancellor below heard and considered the testimony, and had an opportunity to see and observe the witnesses as they testified and to evaluate the relative weight that should be accorded their testimony. In the final decree, the chancellor commented that in his opinion the parties would never live together happily as husband and wife again, but concluded that the appellant had failed to discharge the burden placed upon him by law of proving, by a preponderance of the evidence, the charge made against the appellee.
The court has carefully considered the entire record in this cause and has not overlooked the fact that the appellant and appellee lived together only a short period of time prior to the beginning of marital difficulties, and that the appellant is approximately twenty-one years older than the appellee. However, this court is not justified in substituting its judgment for that of the chancellor of the lower court in judging the weight, credibility and effect to be given to the testimony offered. The fact that this court sitting in the place of the chancellor might have arrived at a different conclusion, would not in itself warrant disturbing the decree. As a general rule, an appellate court will not disturb the decree of a lower court upon the evidence unless it clearly appears that the decree is against the manifest weight of the evidence or that the lower court has failed to apply applicable principles of law. We are bound in our consideration of the rights of the parties by the showing that they have made on the record, and while it appears that the chancellor might have found otherwise than he did, the record supports the decree. It was the appellant's burden to establish the allegations of his complaint by a preponderance of the evidence and the chancellor below, having concluded that the appellant had failed to discharge this burden, we cannot say he was in error in dismissing the complaint. See Straughter v. Straughter, Fla. 1956, 87 So.2d 499.
It is obvious from a reading of the decree that the lower court failed to consider and apply an essential requirement of the law entitling the appellee wife to separate maintenance under section 65.10, Fla. Stat., F.S.A. This essential requirement is a showing, supported by adequate proof, that a husband having the ability to support nevertheless fails to support or withholds it. The view of the Supreme Court of Florida on this question, expressed in the case of Close v. Close, 158 Fla. 636, 29 So.2d 625, 626, appears to be controlling in this instance. In that case, the court said:
"In order for the suit to be maintained, the husband must be able to maintain or contribute to the support of his family and fail. If the husband at the time of the institution of the suit is not withholding support, commensurate with the financial condition and circumstances of the parties, this action is not maintainable."
This has been affirmed in the recent case of Egland v. Egland, Fla. 1957, 92 So.2d 647.
In consideration of the views hereinabove expressed, it follows that the portion of the decree denying the appellant a divorce is affirmed, and that portion awarding the appellee separate maintenance is reversed.
Affirmed in part and reversed in part.
CARROLL, CHAS., C.J., and PEARSON, J., concur.