Opinion
August 12, 1952.
Appeal from the Circuit Court, Escambia County, L.L. Fabisinski, J.
D.W. Berry, Pensacola, for appellant.
Dave Caton, Pensacola, for appellee.
This is an appeal from a final decree dismissing appellant's bill of complaint for a divorce on the statutory ground of desertion, that is, "Willful, obstinate and continued desertion of complainant by defendant for one year." Section 65.04(7), Florida Statutes, F.S.A. The sole issue here is the sufficiency of the evidence to support such charge.
The appellant, Lillian Stanton, had previously sought to obtain a divorce from the appellee, Wilmer R. Stanton, on the ground of extreme cruelty. In that action, her bill was likewise dismissed for failure of proof. The final decree of dismissal did, however, adjudicate that "the plaintiff, Lillian Stanton, is living separate and apart from the defendant, Wilmer R. Stanton, through no fault of her own, and solely because of the fault of the defendant," and awarded to the appellant the custody of their two minor children, together with the sum of $15 per week to be paid to her by the appellee for their support.
It is conceded that the parties have not lived together since some time prior to the institution of the first divorce suit in July of 1950, and that the statutory requirement of the alleged desertion for one year is present. The adjudication in the prior litigation, above quoted, estops the parties from further litigating the question of which spouse is responsible for the separation, under the principle of "estoppel by judgment." See Gordon v. Gordon, Fla., 59 So.2d 40, 46. The appellee must be held, then, to have been guilty of "constructive desertion" under the rule that "The party to the marriage contract who by his or her conduct makes it necessary for the other party to such contract to leave the marital home is the one who is guilty of desertion." Gordon v. Gordon, supra, and cases therein cited.
Thus, only one question remains: Was the appellee's constructive desertion "obstinate" within the meaning of the statute, Section 65.04(7), supra?
It is admitted by appellant that appellee made at least one attempt at a reconciliation, but we are not persuaded that his offer was made "in good faith, and free from improper qualifications and conditions." See Hunt v. Hunt, 61 Fla. 630, 54 So. 390, 394. After the appellant left the appellee and moved in with her parents, the appellee gave up the house they had previously rented and moved into a one-room tin shack with a dirt floor and no water or sanitary facilities. Certainly the appellant was not required to return with her two small children to such quarters, when appellee was able to provide better. And while the appellee testified that he "offered her a home any time she wanted to come back," he admitted that he had not actually made any plans for other living quarters for her and the children. In view of the fact that appellee was consistently delinquent in his payments of support money for the children, as required of him by the final decree in the first divorce suit, and that appellant had to resort to the court on many occasions to enforce compliance with such decree, it is understandable that appellant refused to leave the security of her parents' home on the strength of such a vague and uncertain offer, and one which she had every reason to believe was not to be relied upon.
Nor does it appear that the appellee ever promised to refrain in the future from the course of conduct which was so distressing to appellant and which the learned Chancellor in the prior litigation found was sufficient to justify her leaving his abode. Under circumstances such as those in the instant case, a husband is required not only to attempt a good faith reconciliation, but also to promise to refrain in the future from the course of conduct which forced his wife to leave him. Gordon v. Gordon, supra. We are unable to glean from the record any indication that the appellee planned to change his way of living one iota. In fact, the record shows that in response to the question "Did you promise to do better than you had been?" the appellee replied, "I had been doing the best I could, and how could I promise to do better."
We conclude that the appellee's offer of reconciliation was not made in good faith and under such circumstances and conditions as to require the acceptance thereof by appellant, and that the evidence was amply sufficient to show a "willful, obstinate and continued" desertion of the appellant by the appellee for a period of more than one year.
We have carefully considered the appellee's contention that the appellant did not come into equity with "clean hands," and find no merit therein.
It was error to dismiss the appellant's bill, and the final decree appealed from should be and it is hereby
Reversed.
SEBRING, C.J., and MATHEWS, J., and GORDON, Associate Justice, concur.