Opinion
March 20, 1951.
Appeal from the Circuit Court, Hardee County, D.O. Rogers, J.
R.J. Marshall, Palmetto, for appellant.
W.W. Whitehurst, Wauchula, for appellee.
On March 21, 1950, Herbert C. Rodgers filed in the Circuit Court of Hardee County, Florida, a bill of complaint against his wife, Helen G. Rodgers, of 530 South Main Street, Marine City, State of Michigan, in which he prayed for a divorce on the grounds: (1) that the wife was guilty of extreme cruelty; and (2) that she habitually indulged in a violent and ungovernable temper. On April 24, 1950, the wife, Helen G. Rodgers, answered the bill of complaint and stated that she was a citizen and resident of Manatee County, Florida, but her residence at the time of filing her answer (April 24, 1950) was Marine City, Michigan.
The answer further denied the several allegations of the bill of complaint charging her with being guilty of extreme cruelty and indulging habitually in a violent and ungovernable temper. The answer charged her husband with various acts constituting a violent and ungovernable temper exhibited toward her for a considerable period of time and she prayed for (1) a divorce; (2) permanent alimony; (3) counsel fees; and (4) an allowance of money with which to defend the suit brought against her by her husband. On June 29, 1950, an amendment to the original bill of complaint was filed and it charged the wife with desertion for a period of one year beginning June 24, 1949, and ending June 24, 1950.
On July 18, 1950, a final decree was entered (1) dissolving the bonds of matrimony then existing; (2) decreed further that the husband should pay to Helen G. Rodgers for the support of herself and the two minor children the sum of $75.00 each month beginning with the month of July, 1950; (3) counsel fees for the wife's attorney in the sum of $250.00; and (4) all necessary costs and expense incurred incident to the litigation. From this final decree the wife appealed.
Four questions are argued here as grounds for a reversal of the final decree entered below. Three of these questions go to the sufficiency of the evidence to sustain the conclusions of the Chancellor as expressed in the final decree. The transcript certified here fails to disclose the evidence adduced by the plaintiff-appellee husband as heard by the Chancellor, but such evidence as was given by the wife and her witness, Dolly M. Blair, appears in the record. The briefs of counsel for the respective parties concede that only a part of the evidence considered by the Chancellor below has been certified to this Court. A recital in the final decree is as follows: "the Court has considered the evidence of the plaintiff submitted orally before the Court and also considered the testimony and evidence submitted by the defendant by deposition and affidavit." We are unable to say from the evidence certified here that the evidence was not sufficient to sustain this finding.
It is next contended that the Chancellor erred in granting a divorce on the ground of desertion, which was presented in the form of an amendment to the original bill of complaint. It has not been clearly made to appear from the record the exact ground relied upon by the Chancellor to dissolve the marriage. Plaintiff-appellee sought a divorce on three grounds: (1) desertion; (2) extreme cruelty; and (3) an ungovernable temper. The plaintiff-appellee's testimony was heard orally by the Chancellor and has not been certified here. We fail to find error in the record. The petition for counsel fees in this Court is granted and a fee of $150 is hereby allowed.
Affirmed.
SEBRING, C.J., and ADAMS and ROBERTS, JJ., concur.