Dean v. Dean

36 Fla. 492 | Fla. | 1895

Mabry, C. J.:

Appellant filed a bill against appellee for a divorce, the ground alleged being the habitual indulgence of violent and ungovernable temper. After alleging the marriage between the parties, which was about two years before the filing of the bill, it is averred that soon alter the marriage the defendant, indulging in violent and ungovernable temper, commenced to abuse and revile complainant about his former friends and associates, then residing in Washington, D. C., and continued to do so from time to time for months thereafter, and during the said time, and until the commencement of the suit, defendant repeatedly and constantly abused and reviled complainant about his friends- and associates residing in Key West, Florida. The bill further specifically alleges various acts of violent and ungovernable temper on the part of defendant on dates mentioned, commencing some three months after the marriage, and continuing down to the filing of the bill. It is not necessary to set out the specific acts-alleged, as it is not questioned that they are sufficient, if true, to authorize the divorce.

Defendant positively and unequivocally denied all the allegations of the bill in reference to the ground for the divorce, and also alleged various acts of violence on her by the complainant. It is alleged in the-answer that shortly after the marriage, complainant informed defendant that she was not his wife, but only his servant, and his treatment of her was only that of a servant, and various acts of violence on defendant by complainant are specifically alleged.

After issue was joined and the testimony taken, the court decreed in favor of defendant, and dismissed the-bill.

The appeal prosecuted by the complainant opens for our consideration the correctness of the decree of the chancellor on the testimony. It wras held in Palmer vs. Palmer, 26 Fla. 215, 7 South. Rep. 864, that a divorce bn the ground of habitual indulgence of a violent and ungovernable temper will not be granted, unless that temper has been displayed towards complainant habitually, and with the effect of rendering life an oppressive and intolerable burden, and making it impracticable to discharge marital duties under such burden. Occasional outbursts of passion, petulance, readiness to anger, frequent and unreasonable complaints, though made in a loud-voiced and boisterous manner, if solely calculated to render the relations between the parties unpleasant and disagreeable, or simply unhappy, do not furnish sufficient cause for divorce. It is also the settled rule that a decree of a chancellor solely on questions of fact will not be disturbed unless the evidence clearly shows that it was erroneous. Fuller vs. Fuller, 23 Fla. 236, 2 South. Rep. 426; Waterman vs. Higgins, 28 Fla. 660, 10 South. Rep. 97; Perez vs. Bank of Key West, decided at this term. After a very careful consideration of the evidence in the record before us, we are of the opinion that it does not clearly show that the chancellor erred in dismissing the bill.

No useful purpose will be subserved by detailing the evidence in this opinion, and in indulging in a general discussion of it. A portion of it is hearsay and entitled to no bearing. As is often the case in such suits the parties are in irreconcilable conflict, both in their allegations in the pleadings and in their testimony, and the court must look to other sources of information than the evidence of the parties themselves in reaching a conclusion.

Appellant directed considerable testimony to the refutation of the charges made against him by appellee, and insists that such charges were not sustained. Conceding that they were not sustained, it did not relieve appellant from the necessity of sustaining his ground for the divorce, and as to this the burden was upon him. Appellee did not file a cross-bill and ask for a divorce, but filed an answer in which she sought to defeat the suit against her. The overthrow of her charges in the sworn anstver can serve no other purpose in the present controversy than to effect her credibility, or the good faith of her defense. Much of the testimony offered by appellant tended to refute his own allegations, as well as those made by appellee. It is asserted in the bill that soon after the marriage appellee commenced to indulge in violent and ungovernable temper against appellant, and in the answer it is charged that during the same time he mistreated her. Several witnesses who remained in the same building and yard with the parties soon after their marriage, testified that they neither saw nor heard anything improper between the parties, and that they both demeaned themselves as husband and wife should do. There is testimony, however, showing that the parties on several occasions were engaged in violent conflicts with each other, and at such times very improper language was used, and, as the testimony shows, appellee used most of it. The difficulty in the way of appellant is, that with the exception of a few of such conflicts, it is impossible to say who commenced or occasioned them. Disinterested parties heard the disturbance and language of the parties, but they could not tell who was in fault in originating the violent quarrels and outbreaks between them. The parties themselves are so directly in conflict with each other in reference to such matters as to make it impossible to say which one was telling the truth about them. We have been influenced to a considerable extent in refusing to disturb the decision of the chancellor by the testimony of a witness in no way impeached, and, so far as we can see, was disinterested. This witness is Josephine Bolio. She states that she visited appellee and found her in apparent distress, and at her instance, and after listening to her alleged grievances against her husband, she (witness) went to see appellant and talked to him about the marital trouble. After discussing the temper of appellee, the witness states that appellant said that he had made up his mind that he would not live with appellee again because she was too old for him; that he was only thirty-two or thirty-four years old, and she was nearly fifty; that if it was only the age, he would not mind it, but the bad temper and age together made it so that he could not live with appellee. This witness-further states that appellant said he had made a mistake, but it was not too late to correct it; and the one he should have married, and whose disposition he knew all about, was the one he employed in his office as a copyist. The name of the copyist was given, and appellant said that be was going to get a divorce and marry her. It is disclosed by the evidence that trouble-had arisen between'appellant and appellee on account of his retaining this same young lady copyist in his office, and that appellee insisted that she should go-out, but appellant refused to displace her. Most of the statement of the witness, Josephine Bolio, is denied by appellant in rebuttal, but we can not say the-chancellor was not authorized to believe her statement, and if what appellant said to her be true, it should discredit him very much in all his efforts to obtain the-divorce. While the case is not free from doubt, we do not feel that we should, under the rule stated, disturb the decree of the chancellor on the facts of the-case.

An order will be entered affirming the decree.