Chisholm v. Chisholm, 125 So. 694

Henry case, in the presented here same situation feature this therein controls supra, that the decision of the case at bar. J.,

Whitfield, concurs. Marjorie Chisholm, Appellant, v. Chisholm, Frederic G. Appellee.

Opinion filed 1929. December rehearing January 11, denied Petition Schwarzenberg, E. for Appellant; M. Agnew,

G. P. Garrett and Vans Schwarz, repre- Hart & senting Appellee only hearing at on motion to vacate decree, appeal. set aside and on Andrews, Commissioner: upon appeal

This case is here from an order of the lower denying court appellant motion of the to set aside a decree a de- granting 1926, December 6, of court entered on said Marjorie Chisholm. to the appellee, of divorce cree filed decree, and set aside said to vacate The motion 19, 1927, as follows: December Chisholm, defendant, Frederic G. comes the “Now and set moves to vacate cause and in above entitled in said pro final decree obtained aside confesso irregular- deceit, surprise grounds of and on the matter as follows: therefor states ity, and for reasons (cid:127) duly filed an answer to the That the 1. defendant your by appears the docket complaint bill of as May 1, on 1926. Court Honorable your employed William C. 2. That defendant Boston, Esquire, attorney-at-law, practicing Rogers, and said Massachusetts, to advise him in said matter Frederic Rogers communicated that fact to William C. said attorney and that the Watts, complainant, E. attorney E. notified said defendant’s Frederic Watts “ May 1926, I do not know under date when notify you plenty hearing place, will take but will ’ ’ relied, right had a time, that attorney, rely upon promise complainant’s but said attorney your complainant’s never notified defend- ant, attorney any hearing, surprise of his to the or your defendant. matter in said jurisdiction no court had That the re- had complainant or defendant neither filing of said years to the prior Florida two

sided defend- appears as affidavit complaint bill of attached. ant hereto attorney, never received defendant, or his

4. complaint bill of to said any that amendment notice docket on appears October filed had been any copies amendment, nor he receive did of said appear Chisholm, as from affidavits Frederic G. Daisy M. and Rogers Chisholm Wm. C. attached. from,

4.A. appears your Because it the record of Honorable Court that the amendment to bill of com- plaint after replication was filed filed; had been and there was no motion which file same on due notice given was party; by to other and no proof affidavit that same purpose for not made of vexation or delay, or that proposed matter of the amendment is material, and could not with diligence, reasonable have been sooner required introduced into by the bill Equity Rule 42 of this Court. knowledge had,

5. The first or his defendant attorney any had such or amendment filed a pro decree through had been entered was a confesso 10, 1927, by attorney letter dated October sent complainant attorney to the defendant, for the copy of hereto which is annexed to the affidavit of Wil- liam Rogers. C. your

6. That intended said defend good merits of action and had defense on the same complaint allegations bill of that the said by appears amended untrue as bill were answers submitted herewith that neither parents period or her for-a of two resided Florida years prior bringing complaint. to the said bill pro decree by 7. Because said was obtained confesso a trick as will appear testimony and fraud your which defendant will is borne submit and out Rogers, attached to affidavit of C. letter William defendant said that he has at all times used due dili- gence defending matter, said he intended to same; defend the that the and her attor- ney knowledge to had full that he defend the intended same; practiced upon had been the courts that fraud purpose obtaining said for the of and that the decree of no amendment was filed October which your given notice was to defendant and same was that your purpose tricking defendant, know- filed for the away ing living that was two thousand miles defendant knowledge filed; and would have no all same by of which facts as above set out can be substantiated lawful evidence. your prays

WHEREFORE upon due notice to respondent or her attorney, the matters may set forth herein be heard the Honorable Qourt' setting and an order aside vacating and the decree filed herein be allowed and that the per- defendant be answer, mitted file the copy which is annexed hereto.

FREDERIC G. CHISHOLM. ROGERS, WILLIAM C.

Solicitor for Defendant. personally appeared “Then before me Frederic G. personally Chisholm to me known and made oath that the statements above subscribed him are true.

WILLIAM ROGERS, C. (N. Seal) Notary P. Public.

Commission expires Aug. 15/30.” Attached to the motion to vacate and set aside de- cree, appellant; is affidavit of affidavits Wil- Rogers Guy liam C. W. Currier, attorneys Boston, Massachusetts; Daisy Chisholm, also affidavit of M. mother appellant. are There attached to motion, certain passing between for complainant, letters counsel original defendant, divorce case and Frederic G. pro- attorneys Boston, and also the

Chisholm, and his Marjorie complaint of bill of posed to the amended answer Chisholm, which is as follows: Chisholm,' defendant, Frederic G. comes the

“Now reserving attorney, Schwarzenberg, his by Eugene M. exceptions said just all himself the benefit of unto thereto, and for amendment, complaint, bill is advised as he much thereof thereto, or so answer amending an answer hereby answered, material to be says: filed heretofore says it true that com-

“1. Pie denies and is not period of Florida for a plainant was resident bringing of the (2) years prior to the more than two complaint. bill of

‘‘ lawfully mar- admits that he was 2. The defendant day April, complainant on the 29th ried to together as says they lived that thereafter 1925, and wife. husband and says denies and

“3. Your defendant it is not true complainant. he ever left the that says “4. Your defendant denies and it is not true support he did not contribute towards the compel complainant work, complainant or seek or your support both, them or that defend- to work and any money, give your complainant but ant did not your always support com- says that did work to he plainant. paragraph four has been stricken

“5. Unmarked your complaint, wherefore defendant from the bill answer same. does not says denies and the statement

“6. Your defendant para- in the alleged is not true and paragraph four, for graph substituted said to be complain- says never threatened to that he leave your country, gave com- ant, go or to another worry alleged the reasons plainant no cause to paragraph. said in unmarked allegations

“7. Defendant denies says the complaint and five of said bill of paragraph untrue. same .are age of admits that he is over the

“8. Defendant present twenty-one (21) years and his address County, Road, Brookline, Norfolk 12 Lincoln No. Massachusetts. complainant’s having fully answered the bill

“Now, dismissed, prays that same be complaint, defendant ’’ expended. by him in his behalf with reasonable costs filed, 20th, proposed answer was The said and on March referring an to a 1928, order, the court made the matter upon special master, report being pre- the master’s an chancellor, to the order was on sented entered June denying the motion to vacate and original the final of divorce entered set aside decree order, appeal was to this ease. Prom said taken Court for review. transcript for re-

According to the of the record here ; 6, 1926 entered December the decree divorce was view (cid:127) set the said was filed motion to vacate and aside decree beyond the limit 19, 1927, which was time December on petition rehearing, a for be- thirty filing also days entry appeal from months for limit of six yond the time granting the divorce. the decree Kroier, v. 95 Fla. 116 So. R. of Kroier In the case that: held 753, this Court

“Delay moving judgment vacated, have so long party as had judgment no notice of the rights parties no intervened, of innocent third have ’’ usually right prayed will not bar his relief for. appears It testimony from the that the solicitor for com- plainant and the were married soon after granted, scarcely of divorce was but it could decree be said party,” that he was an he all persons “innocent third knew all the circumstances.

In the case, above it was also held ordinarily lapse that of time will not right affect the to vacate a on the decree ground jurisdiction that the court never had the to enter it, party actually if but judgment knows that a has against judgment been rendered him and the simply not merely void but it voidable is the rule he must exercise diligence in procuring vacation; reasonable its and un- delay generally excused preclude laches or will him from obtaining sought. judgment absolutely A relief that is can, general void as a rule, be set aside and stricken from any motion, the record on at time. The exhibits attached conclusively to the motion to vacate the show decree bill, had no of the amendment to the notice entry hearing nor of decree. The divorce was decree opinion for at pointed void as will be out this least two jurisdictional. reasons, both Sawyer

It held in the case of v. Gustason, 96 Fla. R. 57: So. jurisdiction of a equity “Where the court of has wrongfully invoked and a°final been decree obtained allegations jurisdictional facts, upon false the de- laches, may fendant, being free from obtain relief such final way to vacate of motion decree the de- upon which it was based. Under pro and cree confesso by motion, such it must be shown that there was de- ceit, surprise, irregularity or in obtaining such de- ; cree that the defendant has acted bona and with fide diligence, reasonable and has meritorious defense.” approved language by The above case also the used Justice 20 Fla. Stribling Hart, v. the case Westcott 235:

“Without the strong existence of and unavoidable excusing circumstances neglect such and laches, the decree should opened. not be power Such should not upon be exercised a mere desire to' let a defense upon the merits. The facts established must show deceit, surprise irregularity or in obtaining decree, fide, the defendant has actedAowa and with rea- diligence, defense; sonable and has meritorious and constituting distinctly the facts such defense must and satisfactorily proposed appear, answer should be exhibited.”

If record, evidenced the exhibits and testi- mony involved in hearing on the motion to vacate and aside divorce, set the decree of shows unexcused laches or failure to diligence part exercise reasonable on the of the defendant, petitioner, the denying decree the court motion to affirmed, vacate decree of divorce should be proceedings unless juris- lack were void—as for diction.

The motion alleges to vacate the and documents attached in support thereof show that defendant duly served process in with publication the divorce suit mailing same to his address at 12 Road, Lincoln Brookline, Massa- chusetts. April Rogers,

On W. Boston, C. wrote coun- complainant, sel for as follows:

“I by been retained Mr. have Frederick G. Chisolm represent to him brought by you in the divorce libel Marjorie yet in behalf of I Chisholm. have not counsel, doing selected local I and before so would your a copy you kindly like bill. Would send me copy your you my a bill, copy and I will send answer when I it to court.” have sent April 9, 1926, Rogers reply On Mr. received a from for complainant, counsel as follows: ‘‘ your I received 5th, letter of the -relative to the divorce brought ‘libel’ me in behalf of Mrs. Chis- holm. It is not the custom copies here to send of bills out of the State, only so I copy my made one file. Since, however, you request I it shall have another copy you made and send it days.” the next few day, copy On the same bill was sent with a letter reading as follows:

“I enclose pursuant herewith your request, copy of the bill of complaint filed in the case of Marjorie Chisholm v. Frederick Gr.Chisholm.” April On Rogers Mr. wrote counsel for com- plainant as follows:

“I enclosing am copy herewith a of the answer filed the defendant himself in the Marjorie case of ’’ Chisholm v. Frederick G. Chisholm. your “I appreciate, courtesy in sending copy me a of the bill complaint. original

“The has answer been forwarded to the court. yet As local counsel has not been engaged, Mr. filing Chisholm is this himself.” duly filed his 1926, in day May, rule On the 1926, filed her 1, complainant pro answer se. On June “O,” W. by defendant’s exhibit As shown replication. complainant for Boston, whom counsel with Rogers, C. of case, this wrote reference to corresponding with had been 1926, as follows: 4, on June complainant, counsel for ‘‘ May beg acknowledge your I letter 31st with to of you. your for which I thank replication enclosed your sitting “I suppose there not be another will fall. are sev- court Florida until next As there in deposi- from I would to obtain people eral whom like you I thank to north, tions here would located this case give idea of the earliest date some me hearing.” for could be marked complainant’s The attorney, letter written from Mel- May 1926, bourne, Florida, 31st, enclosing copy among replication, reply, to which above letter was a things, other said:

“I just do not know the hearing when will take place, notify you I will in plenty but time.” complainant The record shows that after filed her repli- 1, cation on 1926, August June her counsel 28th, on fol- lowing, complaint filed motion amend the to bill to ground divorce, intemper- strike out as a ‘‘habitual for cruelty.” ance” and insert lieu thereof ‘‘extreme application by for amendment was set the chancellor be- August 1926; purports which fore for notice of him mail have served counsel to been motion, stating copy above affidavit, ‘‘mailed a of the his 20th affidavit, Gr. on the to Frederick Chisholm notice Road, 12 Lincoln day A. D. addressed to August, envelop Brookline, postage upon Mass., with sufficient carry duly sealed, which the same to Brookline and was that said envelop deposited post at Mel- office on bourne said being date.”—same sworn to and sub- notary. scribed before a

The motion was set to be heard at Sanford, Florida, on August 26, and the hearing notice of alleged have been August mailed on 20, 1926, and according to the tes- timony of for complainant, counsel it was mailed Au- on gust Only days 21st. five August intervened between 21st August Chancery provides 26th. rule 61 that after replication, the bill shall not be by adding amended new altering original facts or or defenses the statements, ex- cept by upon leave of the court motion and cause shown “after party.” Chancery due to the notice adverse rule provides 59 that where an amendment shall be made after filed, the answer is put the defendant shall in or a new supplemental day, on next answer or before the rule unless enlarged by court, upon default, time is and like his proceedings may put be had as eases omission to an answer. chancellor, on August 26, granted 1926, the motion

to amend and if ordered that such required a amendment new or further answer that October, he be allowed until 1926, day A. D. rule same, to answer the and a true copy of the days amendment served least be at ten before said 1, October rule date. 1926, On November for solicitor complainant praecipe pro filed decree confesso rules, the November for failure plead, of the defendant to. answer or demur to the amended bill. The clerk on the rules, pro special November entered a decree and a confesso testimony appointed master take was the chan- 2, special cellor 1926. On on November December report his and on December the chan- master submitted granted divorce, a final same cellor decree of 6, 1926. entered.of record on December Boston, wrote coun- Rogers, Mr. 4, 1927, On October complainant sel for as follows: you “It has been some I time since heard from rela- your tive to the In May above-entitled ease. letter of you 31st, 1926, you you will notice told me did not just hearing know when the on this case would take you place, notify plenty would but me of time. As I I you, have not heard from would like to know what present of this time.” status at case,is replied: 10, 1927, On October counsel for “The ease of Chisholm v. Chisholm longer is no at issue, complainant having obtained a final decree during vinculo matrimonii the month December, complaint 1926. The bill of was amended and the al- legation intemperance of habitual stricken therefrom cruelty extreme added its stead. copy

“A of the amendment and notice of the motion asking for an amendment was mailed to the defendant Road, Brookline, Mass., at No. Lincoln on the 20th day August, A. D. 1926. The defendant failed to pro answer amended bill and decree was confesso subsequently testimony parte entered and taken ex granted and the final decree thereon. granted

“I it for of course that as Mr. Chis- took employed you represent him in mat- holm had this you any information he ter he would communicate to my in no doubt whatever mind There is received. notice and that received this but what Mr. Chisholm complainant has received her decree of' knew the he you placed very sorry that were I am divorce. and I knowing of the ease

position the status of not taking ad- you was with no intention assure that it notice that I sent the vantage anyone concerned you.” directly instead of to to Mr. Chisholm time, About the clerk of same defendant wrote the county, the court of follows: Brevard “Having year, I past had no notice of would ease ’’ disposition like to know has been made of same. what Upon appears the bottom of following which nota- tion : styled completed,

“The above cause has been final 6th, Froseher, decree filed December T.N. C. By C. C. J. S. D. Brooks, C.” Mr. Chisholm on the motion to vacate testified that he copy never received the of the notice and motion to amend the bill of complaint, which counsel .for tes- he, tified that mailed August on to 12 Lincoln Road, Brookline, Massachusetts; that his mother received family mail, together his, with times, there at all every day she was at her during home the months of August, September year. and October of that The testi- mony copy amend, copy shows that a- of the motion to and a of the by Guy notice and amendment was received Cur-W. rier, attorney Boston, an any part who had never taken apparently correspondence the divorce suit and had no complainant except whatever with counsel for to return the enclosures. record, part

From the evidence as shown above, appears which has been the defendant stated it nothing knew about the amendment to bill of complaint, testimony nor nor heard, when the case was when the it granted, divorce and learned nor when the taken, only special inquiry his own and afterwards, making Rogers. Rogers testi- Both and Currier that made Mr. the on to vacate hearing in the motion fied in Sanford the Mr. Chisholm’s. testimony corroborates decree and their every important divorce are least two issues There at (1) proceeding jurisdictional: that are Section (1927), provides that “the com- Comp. Gen. Laws of Ela. years in Flor- plainant must have resided two the state of ida, filing of the bill.” before “no provides that 4983 of said statutes

(2) Section following facts granted of the shall be unless one divorce fourth grounds) the (naming nine different appear” shall cruelty by complainant.” to being “extreme appellant 20, 1928, granted a motion was On November tran- part such the permitting cause use of this appeal former decree script former from the filed on apply may properly dismissed, as divorce, which was ... present appeal. alleges bill, on filed March 26,1926, bill, this a prior filing

“is now and has been of more period State of for Florida, resident years.” than two for years’ required complainant suing

Two residence legal place domicile divorce means a residence that Legal under stat- permanent or abode. residence divorce years, utes, requiring complainant to two reside the State place complainant has made the chief seat which means Wade, or home interests. Wade v. of his household affairs the law of State 93 Fla. 113 So. R. 374. Under this be one who establishes the husband is considered to domicile or residence.

1214

The issue of “period “residence” this State for a of years'’ very two case, becomes material of this view the fact that the answer of the defendant denies that the plaintiff prior has been the filing of this bill com plaint, a resident of Florida, the State of period years. two The terms “residence” and “residing,” used ‘‘ ’’ in relation eases, legal to divorce means residence. Her Passailaigue, ron v. 818, 92 Fla. 110 R. So. 539. The “residing,” terms “residence” and used relation cases, “legal means divorce residence.” Herron v. Passai- laigue, 92 818, R. Fla. 110 So.

“Legal residence” under divorce requiring statute com- plainant years to reside in the two place State means the he which has made the chief seat his household affairs or home Wade, interests. Wade v. supra. have used language could the same as

quoted years’ alleging above in if has residence, two she any years “prior been a resident Florida for to the two bill,” may filing though of the she not have been resident years; being however, allegation, practically within ten statute, may language only in the of the be sufficient as. in pleadings are ultimate facts this kind. essential In Troublefield, the divorce case of v. Troublefield 60 Fla. R. So. this Court held that after a divorce allegations had been in the decreed, defects not demurred to, may disregarded, “if appear be all the essentials ’’ fully allegations evidence sustains the the decree. fully allegation Does evidence sustain the as to cit- ¶ izenship

In hearing special ex before the in this parte master case, stating present “place after her of residence” Eau her Gallie, Florida, following questions, counsel asked the and received as follows: answers residing in State you “Q. long have How been Florida? in 1922 Florida years; I first came to four

“A. About my parents. with time? since that

Q. in Florida You resided have I “A. have. therefore, in of Florida

Q. have, resided the State You filing your bill of years the period prior of two to for a complaint ?

IA. have.” testimony in the case to

The constitutes all the as above the same residence, though parents both of testified at her hearing. testimony the uncorroborated

This Court has held that support a decree of divorce. complainant is insufficient to 242, 816; 99 Hickson v. Hick Dean, Dean v. 87 Fla. So. R. 474; 23 Fuller, Fuller v. Fla. 556, 54 Fla. 45 So. R. son, 425, 236, 426; 2 R. 9 C. L. Sec. So. R. this in sub- Wade, supra, Court

In the case of Wade v. said: stance adul

Except guilty the defendant has been where State, years’ residence tery prerequisite two this divorce, for this of the a suit State (1920) is by 3189, Rev. Gen. Stats. prescribed Sec. bill alleged in jurisdictional and must be both our have by otherwise courts proofs; established authority of divorce. Beekman v. grant no a decree 923; 43 R. Krumrine v. Beekman, 858, 53 Fla. So. R. 131. Such residence Krumrine, 368, Fla. 106 So. 90 by par thereof being an admission jurisdictional, a substitute pleadings is ineffectual-as their ties alleged requisite residence must be proof. in which is not an instance proof. This established effectually may ad jurisdiction, be going facts 1216 449; Phelan, 12 Fla. parties.

mitted Phelan v. 434; v. 12 Fla. Gredler v. Underwood, Underwood Prall, 762; Prall v. 372, R. Gredler, 36 Fla. 18 So. Fla. R. 867. So. long principle adhered to the that:

This Court has being party in in all divorce “The interest State being in- suits, public and morals and the welfare by way therein, volved, parties of the even admissions little. Proof of pro confesso, amount to but decree ’’ allegations bill made. of the must be 1020; 15 L. Hancock v. 55 Fla. 45 So. R. Hancock, S.) (N. R. A. in that: been established this State

The rule has ‘‘ appear if the defendant fails to the courts are Even formality proceed to with the same nevertheless bound maintained the present if was and such defendant ’’ opposition. keenest Wade, Wolfe, ex Dixon v. 63 supra; v. State rel. Wade 777, 841; Spencer Spencer, 61 Fla. 58 So. R. v. Fla. 55 71 So. R. attorney questions propounded complainant’s

In the questions leading to will be he asked her it observed that statutory way phraseology and the in a to cover certain ¡method merely thereto. complainant assented This testimony parte hearings in in divorce cases adducing ex disapproved. requires the witness should be law testify questions indicating the ask without and counsel to from answer desired his own witness. method, .testimony in chan- is adduced such the

Where promptly return it to the master with direc- cellor should

1217 rules the testimony in accordance with the tions to take reciting answer a solicitor from the prohibit which desired it questions requiring and the witness to admit his answering do” “I or “I or have” “Yes.” apparent

It is that the complainant had “admits” she resided in Florida 1922,” “since admits resided she years period prior filing the for a State of two to the given years prior bill. which No evidence is as to two filing bill meant. In cases wheie point directly has been raised this approved Court has averments of the bill and the evidence alleged where it was proven complainant that the had resided in State years for two filing “next before” of the Krumrine bill. v. Krumrine, Fla. 131; Burns, So. R. v. Burns 13 Fla. 369.

In the case, supra, Krumrine this Court, speaking through Mr. Justice the allegations said bill Ellis, and the evidence “show complainant that has been residing in Florida years for two next his filing before bill complaint.” case, In supra, the Burns discussing Justice Randall, point said: is,

“The statement the bill 'the is, and has been for two years, more than a resident State,’ parties this that were Jack- married at .the according State, law, 1862, sonville in this to in April, parties ‘where the have ever since lived’.” opinion “by then The adds that the bill could the not any words, posi- use of other form of have stated more tively done, than- she has she has resided in this State that space years filing of two prior the time of her bill.” that a divorce may granting not essential to the

It be allege the “resi- complaint should do more than the bill of substantially language in complainant dence” of com- that it must show evidence to sustain statute, but the bona, years for two in this State has plainant “resided” fide complaint. filing preceding bill next the date of report special appointed master to take and Before the divorce, testimony on the motion vacate decree met in suit testified that he first the defendant the divorce in they April, 1924, and were married two,, spent next Cleveland, 29, 1925, and Ohio, April Claire, Eau parents’ home at place at near her weeks they Cleveland, where returned 'to Wisconsin, and then they went to Brook- Then September, lived until 1, month, and about October line, Massachusetts, for one par- Florida, with the and lived 1925, Gallie, came to Eau four they lived in Cleveland complainant; that ents of in Florida five and months, months and one-half before defendant returned to Massachusetts. Defendant further change his testified that it was not intention to his resi- Massachusetts; his wife had lived dence from never except prior 1, 1925, to October on one or two Florida during vacation; April, visits from occasional and Wis- 29, 1925, she was in Massachusetts April until time; period of that from during the whole of that consin at Eau complainant had lived knowledge the father of his family only life; that her went Claire, Wisconsin, all his September, Gallie, Florida, about to Eau on March suit was started residing when this divorce there 26, 1926. upon the mo- taken the evidence

This was substance complain- to residence of. vacate, upon the issue as tion to complainant testified parents in this ant State. ques- they not were some reason suit, but for divorce tioned to their in the residence State Florida. Neither parent testify in called before master the hear- ing on divorce, the motion to vacate the decree of although question in in residence the State of Florida was issue, usually in view of the law that the residence of the father of his minor child. establishes the residence

It complainant is shown that had living been in Florida about six months when the bill 26, was filed on March 1926. appears It complainant and defendant were years about nineteen old, and had attending been school Massachusetts, in they when were If complain- married. continuously ant had resided years Florida for two previous bill, to filing her there would be at least have to eighteen during minority of it months her at the residence parents. her. complainant’s There is no evidence parents any previous ever resided at time Florida coming their to Eau if September, Gallie about then. This Court has held that

“The domicile of the father is the domicile of his children, minor and such minors during cannot their minority acquire a domicile Florida while their ** * father’s domicile is in another State. A minor, female whose father domiciled another upon State, a marrying man whose domicile is in Flor-

ida becomes resident of Florida from the date such marriage.

“The acquire mere intention to a new domicile, un- accompanied nothing, an removal, actual avails neither does the fact of removal without the inten- tion” establish domicile.

Beekman v. Beekman, Fla. 43 So. R. 9, 1925, When October filed her amend- on original ground struck out in- ment, it of “habitual 1220 charge the of suffer-

temperance” and inserted extreme ing as follows: Chis- defendant,

“That said Frederick G. your leave holm, upon did several occasions threaten to go country, threats were oratrix and another which your oratrix and brought through no fault of about suffering to the extent that her extreme which caused impaired.” greatly her health was that what be This Court has held deemed sufficient shall always law, of and it cause for divorce a matter is the duty to refuse divorce unless satisfied of the court sufficiency bill and the truth of evidence to of the grounds. Hancock, Hancock v. 55 one of establish R. 45 So. Fla. upon

Briefly, alleged ground for divorce relied states suffering” was caused her “extreme your threatened to leave oratrix “upon occasion he several country.” go to another Kellogg Kellogg, In the v. 93 Fla. R. case So. 637, this said: Court fundamentally a bill for divorce is defii-

“Where charge cient in that it does not the essential elements any recognized by statutes, ground for our divorce fundamental error this Court will take note such validity decree, final rendi- going one to the as assigned error, although there was tion of which is bill; in the pointing defect valid demurrer out such no granted requiring that divorce be ex- policy no public ’’ by law. upon grounds provided cept case that “extreme in the same held It was further as en- is such conduct cruelty” ground for divorce as dangers health, life or apprehension or causes reasonable bodily hurt; unhappiness, mere or in- inconvenience, compatibility temperament rendering- of disposition, or marriage disagreeable burdensome, or not even does cruelty. authorize a decree of divorce extreme In addition general charge cruelty” to the of “extreme specify the leading facts, must or at least some upon general, facts which charge the is based. alleged

“These facts be so definitely ap- must as to prise the of the defendant the of facts to be nature proved, and to prepare enable defendant to his or her defense, as may well as in order judge court the whether, being proved, they support facts will general charge.”

Kellogg Kellogg, supra; v. v. Crawford 17 Crawford, 180; R. Seddon, 48, Fla. Seddon v. 82 Fla. 89 So. ‘‘ allegations in The the instant case limit the facts relied constituting cruelty” upon allega- as extreme to mere tion that the defendant upon your “did several threaten to leave occasions ’’ go country. another

oratrix to allegation, proven, justify This if could means no granting of a even if decree the answer filed divorce, specifically deny of the did behalf this alle- not gation bill. previous

Attention is to this directed Court’s discussion alleged grounds constituting of sufficient facts as for ex- cruelty case, Kellogg in the treme well considered v. Kel- logg, supra, where several former cases before this Court are discussed and reviewed.

In the no bodily at bar actual violence charged is case Trigo Trigo,

nor shown in evidence. In the case of v. 90 Fla. said: 105 So. R. this Court ‘‘ ground on rule is well settled that divorce cruelty no extreme will be denied when there bodily violence, complained actual unless treatment damages beof such as health or renders cohabitation unsafe, are intolerable and or unless there threats such kind as to cause reasonable mistreatment abiding apprehension bodily violence so to render impracticable it discharge marital duties.” 341; Hayes Hayes, v. Hick supra; R. C. L. Hickson v. son, supra. returned

Complainant’s mother testified that when she he gone and me from defendant had “she told Miami, the ’’ to going had written he was China. any person No other testified threats of defendant as to go country,” “to to and this was what witness another hearsay says her, that told and was of complainant course competent. not and be sufficiency the corroboration will the of then,

Even the circum- by nature of the admission and the determined It is well settled that it was made. stances under which testimony required to complainant’s is not be'corroborated enough by if every particular, in but that it is corroborated alleged. testimony persons of as to the “cause” the third J. 134. C. hardly imagine dangerous prac- more fact In we could a. com- granting a of divorce when than of decree the tice that testimony only tending prove to is the evidence plainant’s alleged in “specific grounds bill.” truth the of the the a apparent is defendant to leave It threat of the country, if complainant go to and another established ground of extreme ample proof, could not constitute hy cruelty in this record that this when it is shown ease family him complainant and of trying is to relieve herself all for time. the real develops record this ease cause alleged fact,

this suit for In it is non-support. divorce complaint. ground in the bill of If were for non-support appears it evidence in State, divorce this that the this might support charge. record such a It be unfortu- may of-only nate and deplorable even students that these two years nineteen age splendid upon and of families took wife; themselves the duties and of man solemn relation they and whether were influenced some modernist’s view marriages” upon of “trial and trial reflection found a made, justify serious mistake been had does not use courts of as a medium this State to correct such mis- in disregard take of our laws which were established society. protection the better We find that the evidence before us falls far short proving' a bona “residence” of in this fide for a period years State two prior filing bill, fact, any years; allege any two that the bill fails fact constituting cruelty, extreme and the evidence fails to show cruelty suffering; extreme or together that the testimony, with hearing exhibits on motion to vacate the divorce, decree of shows that never received the copy notice and of the motion bill to amend of complaint through complainant’s fault of counsel, any and without fault part shown on the of the defendant. English

The concerning law divorce and causes of divorce it prior as existed American the Revolution was the eccle- and not the common by siastical law. It administered judges jurisdiction and courts whose never existed in this country, and law has been recognized ecclesiastical never as part of our common law. It is true some of our copied rules

American to have been from statutes seem England and which obtain in the courts of ecclesiastical courts, ap- our rules construction are and thus similar of plied statutes, prin- to such and thus some of settled the ciples practices and guides of those courts become for our “cruelty” construing* making as in courts, a statute ground of of that term. specific divorce without definition by chancery jurisdiction have

In this State courts no designated grounds and grant upon divorces statute to subject of over the Legislature power the other. The is unlimited and its dissolution marriage as a civil status limitations, of constitutional supreme in the absence and bringing prerequisites suit governing law and the statutory they being should be grounds of divorce and the 9 R. C. L. and followed. denying motion of de- the chancellor decree is to vacate and aside the decree of divorce

fendant set it and is so ordered. reversed, having this con- Per Curiam.—The cause been record Court, foregoing prepared and opinion sidered Chapter 1929, adopted Acts of under the Court by opinion, it is ordered and decreed considered, its denying mo- of the court below Court the decree tion of defendant to vacate set aside the decree of divorce, hereby, be, is the same reversed. should arid J., Bu- C. Whitfield, Ellis,

Terrell, Brown and ford, J. J., concur. J., specially. concurs

Strum, (concurring specially) : J. Strum, guilty culpable inattention The defendant below cause, progress notwithstanding the assurance this Massachusetts complainant’s counsel that defendant’s “in plenty would notified of time for trial.” counsel be complainant’s from de- receiving counsel, After letter permitted year elapse fendant and five months to without any inquiry making progress whatever as although nothing had heard from cause, he further com- plainant’s counsel. Such indifference not consistent with diligence, though due even under the Even circumstances. suit, this is divorce to which the is a constructive State party and good society, which order of I affects the think should question not now heard be sufficiency of the evidence support adduced in grounds for alleged divorce in the bill. jurisdictional infirmity complainant’s because of in Florida, however,

lack of residence decree, is fatal to the notwithstanding defendant’s inattention to the suit. Be- cause showing made I behalf, concur in the order of reversal. v. Wade Fla. 1004, 113 So. Wade, R. 374. Big Joe, alias in Error, v. State

Job Italiano, Plaintiff in Error. Florida, Defendant

Division B. Opinion January 2, filed

Case Details

Case Name: Chisholm v. Chisholm

Court Name: Supreme Court of Florida

Date Published: Dec 31, 1929

Citations: 125 So. 694; 98 Fla. 1196

Court Abbreviation: Fla.