134 So. 2d 277 | Fla. Dist. Ct. App. | 1961
Lead Opinion
This is an appeal from a final decree of divorce in favor of the husband which by
The husband’s complaint charged the wife with extreme cruelty and desertion, apparently on the theory that it was constructive in character. Her counter-claim for separate maintenance charged him with extreme cruelty and prayed, inter alia, for custody of their three minor children and to be awarded a sum of money for their support, as well as for her own. The decree found that the equities were with the husband on the issue of divorce, but does not elaborate thereon. It does, however, award the custody of the children to the wife, provides a monthly sum to be paid by the husband to the wife for their support, and awards to the wife “the marital abode of the parties in Norfolk, Virginia, and the furniture therein * * * in lieu of alimony.”
The husband, a native of Florida, after serving twenty-three years in the United States Navy retired in February 1959 with a net retirement income after taxes of $268.50 per month. At the time of divorce he was earning $50 per week in civilian employ. The parties were married May 12, 1941. They have three children all of whom are minors living with their mother in the family home at Norfolk, Virginia, title to which was taken in 1945 in the name of the wife. This suit was filed July 13, 1959.
On the question of desertion, the husband testified that on several occasions during his term of military service his wife refused to give up the Norfolk home and come to live with him at various places where he was from time to time stationed. It is clear, however, that the refusals on these occasions did not trigger the alleged desertion. This is so because he further testified that after he retired from service on February 1, 1959, he visited the family home at Norfolk in an unsuccessful effort to get his wife to move to Florida; that he returned to Florida and again, in May 1959, visited her in Norfolk for like purpose and with the same result, saying, “I stated to her I was moving to Florida after retirement and she refused to leave Norfolk and that is it.” He then returned to Florida and in July commenced this suit. It is therefore apparent that assuming constructive desertion commenced in May 1959, it was not continuous for a period of one year immediately prior to the filing of this suit. It further appears that on December 23, 1959, when being interrogated by the court, the husband first testified that he last cohabited with his wife in February of 1957; later that he cohabited with her iii July of 1958; and immediately supplemented that testimony with the statement that “after that I took a few days off at Christmas-time last year and lived with her last Christmas.” The court inquired, “1958?” and he answered, “Yes, sir. I explained to her my intention to retire. I had received a favorable answer from the Bureau and the date had been set for retirement and the date was set for September 1st and that is when the question concerning Florida came up.” It is evident under his version of the facts that constructive desertion, willful and obstinate in nature, was not continuous for the required statutory period of one year immediately prior to commencement of suit. The proofs are therefore insufficient to support a decree of divorce on the ground of desertion.
Turning now to the charge of extreme cruelty, it was alleged, in substance, that the defendant had been extremely cruel to the plaintiff “in many ways too numerous to recount”; that the defendant, without cause or justification, constantly provoked baseless quarrels with plaintiff and against his wishes “incurred useless and unnecessary debts.” It was further alleged that on one occasion (the date was not stated but it was developed by the evidence that the alleged facts transpired years prior to the time when, according to plaintiff’s testimony, he last cohabited with the defendant) plaintiff’s father and sister visited
The sufficiency of these allegations to state a cause of action for divorce on the ground of extreme cruelty was not challenged. The State is treated as having an interest in domestic affairs. In recognition thereof we are strongly inclined to seriously question the adequacy of the complaint in that behalf, as we have the power to do regardless of the fact that it has not been questioned by the defendant or by the trial court. We have taken no action thereon because we find another basis for the disposition of this appeal.
It would serve no useful purpose to recite the evidence in detail. Suffice it to say that considered as a whole, and interpreting it in the light most favorable to the appellee-husband, the assumption is inescapable that the chancellor’s finding in favor of plaintiff on the issue of divorce is predicated on the theory that refusal of a wife to take up her residence at the place of residence of the husband in itself constitutes extreme cruelty, and that divorce was granted on that basis. We find no Florida case supporting that proposition, though it is clear that under such circumstances and where the refusal is willful, continuous and obstinate for the statutory period of not less than one year immediately prior to the commencement of the action, divorce would be available to the injured party on the ground of desertion.
It is the rule that divorce will not be granted upon the uncorroborated testimony of the complaining party. In this case plaintiff’s sister is the only witness presented by plaintiff for that purpose. Her testimony, however, is inadequate to satisfy the rule. Considered in its entirety, the evidence adduced on behalf of the plaintiff husband stands woefully deficient as compared to that on behalf of the wife supporting her counter-claim; so much so that we find it difficult to assess the apparently contradictory conclusions of the chancellor in granting the custody of the children, who are no longer of tender age, to the wife, in providing payments to be made to the wife for their support and maintenance, and in awarding the wife an interest in certain property in lieu of alimony, and yet granting divorce to the husband.
That part of the final decree which finds the equities to be with the appellee on the issue of divorce and grants divorce to the appellee is set aside. The denial of appellant’s counter-claim for separate maintenance is affirmed.
Reversed in part, affirmed in part.
Concurrence in Part
(concurring in part and dissenting in part).
I concur in the holding of the majority that the proof adduced by appellee at the trial is insufficient to support the decree of divorce on the ground of desertion. However my examination of the evidence as a whole, and the reasonable inferences deducible therefrom, when considered in a light most favorable to the prevailing party,, leads me to the conclusion that the Chancellor did not abuse his discretion in holding that appellee has adequately sustained the burden of establishing his right to a divorce on the ground of cruelty. Martin v. Martin, (Fla.App.1958) 102 So.2d 837. Lear v. Lear, (Fla.1957) 95 So.2d 519. I would therefore affirm the decree appealed. Perry v. Perry, (Fla.App.1957) 97 So.2d 152.
