Hancock v. Hancock, 55 Fla. 680

Shackleford, C. J.

—On the 23rd day of May, 1907, the appellant filed his bill in 'Chancery in the circuit court for Escambia county against the appellee, in which he sought a divorce. The bill alleges that the appellant and appellee were married in Kansas City, Missouri, on thе 2 x¡st day of December, 1904, and the 'statutory ground upon w'hioh the divorce is sought is extreme cruelty. The specific allegations in regard to such extreme cruelty are as follows:

“That, the acts- of the defendant constituting 'the said extreme cruelty have consisted in her having from time to time and frequently during the past year and a half, at Pensacola, in the state of Florida, Beaumont, in the state of Texas, and Boydton, in the state of Virginia, entered into relations of the utmost intimacy with young men, such relatiоns consisting of love-making and secret meetings, and correspondence; and your orator has reason to believe, and does believe, and so alleges that such intercourse was not pure and was in violation of the moral standards whiсh should govern married people in their intercourse with others of the opposite sex; but your orator refrains from' making any charge of actual criminality, because he has no evidence thereof other than the faGt that the rules of sоciety which have for their purpose the protection of female virtue having been violated by clandestine meetings and secret correspondence, as aforesaid.

That, the aGts aforesaid, of the defendant, have been against the protests of your orator and in spite of his efforts to prevent and terminate them., and that their occurrence and continuance have preyed upon your orator’s mind, disturbed his peace and have so affected him1, in spite of his efforts to withstand them, that his health is impaired, and unless he can forever get rid of the situation in which he is placed, as aforesaid, by a dissolution of the bonds of matrimony between himi and the defendant, his bodily health will be impaired and his life made utterly and permanently miserable.”

The defendant was alleged to reside at Superior, Wisconsin, and service was effected on her by publication. She failed to enter any .appearance or to file any plea, answer or demurrer, and a decree pro confesso was entered against her .by the clerk of such circuit court, on the Rule day in August, 1907.

On the 7th day of October, 1907, the following decree was -rendered:

This case coming on to be heard upon application for appointment of a master to take testimony, and the court having read the bill of complaint, and being of the opinion that the allegations thereof do not present a case which entitles complainant to a decree, declines to appoint a special master.

It is further ordered, -adjudged and decreed that said bill ‍​‌​‌‌‌​​​​​​‌​‌​‌​​‌​‌​​‌​‌​​​​‌‌​‌​​​‌​​​‌‌‌​‌​‍of complaint be and the same is -hereby dismissed.

Thus done and ordered this 7th day of October. A. D. 1907, at DeFuni-ak, Florida.”

From this decree .the complainant has entered an ap.peal to this court, seeking a reversal thеreof. The appellee has not appeared in this court, nor 'have we been favored with -any brief in her behalf.

As was well said by Mr. Justice Wescott in his concurring opinion in Underwood v. Underwood, 12 Fla. 434, text 443; “It has been properly remarked that a divorce suit may be regarded as a civil suit between three distinct parties, the government, the plaintiff and defendant. It is the office of the government to protect the .interests of the public, the welfare of the entire community whose interests arе involved, and to see that public morals are .protected; and the rights of this party should never be forgotten by the court.” Also- see to the same effect 7 Ency. of Pl. & Pr. 120, and authorities cited in -note 6; 14 Cyc. 577 and authorities cited in note 36; 2 Bishop’s Marriage, Divorce and Separation, sections 480, 489 and 491'.

As was said in Moore v. Moore, 22 Texas 237, text’ 239: “The law has wisely enjoined upon the courts, the duty of watching over.these proceedings with the greatest scrutiny, and interposing to prevent abuses of the delicate and responsible power confided to- them, tc dissolve the marriagе contract. What shall be deemed sufficient cause of divorce, must ever be matter of law; and the law has made it the duty of the judge to refuse a decree, unless satisfied of the truth and sufficiency of the evidence, ■ by which those causes are established.”

' It is settled law here that it is incumbent upon a complainant to allege in 'his bill every fact, clearly and definitely, that is necessary to entitle him to- relief; and if he omits 'essentiál facts therefrom, or states such facts therein, as show that he is not entitled to relief in a court of equity, he must suffer the consequences of his so doing. Knight, Norman .& Co. v. The J. C. Turner Cypress Lumber Co., decided 'here at the present term', and authorities there cited. The facts 'and circumstances upon which a complаinant bases his claim- 'and right to the relief which he seeks are matters peculiarly within his -own knowledge and ’ he will be -presumed to have stated them as strongly and favorably to himself as he could, exercising his privilege of selecting his -own language in which ‍​‌​‌‌‌​​​​​​‌​‌​‌​​‌​‌​​‌​‌​​​​‌‌​‌​​​‌​​​‌‌‌​‌​‍to -couch .them. See discussion and citations of authority in -concurring opinion in Atlantic Coast Line R. Co. v. Benedict Pineapple Co., 52 Fla. 165, text 174 et seq,. 42 South. Rep. 529, text 532, and Anderson v. Northrop, 30 Fla. 612, text 652, 12 South. Rep. 318, text 328. It would seem that this principle w-ould be peculiarly -and especially applicable in suits for -divorce, by reаsons of the interest the- government has therein and the duty cast upo-n the courts to> protect the interests of .the public, as we have already seen.

It is also settled law here 'that the allegata and probata must reciprocally meet and -correspond, the issues being made by the pleadings, to which the proof must be Confined. Knight, Norman & Co. v. The J. C. Turner Cypress Lumber Co., supra, and authorities there cited. As was held in City of Orlando v. Equitable Building and Loan Association, 45 Fla. 507, 33 South. Rep. 986, “Even after a decree pro confesso, relief must be granted only as to the -case made by the bill, and if the bill makes no dase for equitable relief no decree ought to be entered thereon for complainant.” Also see Price v. Boden, 39 Fla. 218, 22 South. Rep. 657, and authorities there cited; Lyle v. Winn, 45 Fla. 419, 34 South. Rep. 158; Megin v. Filor, 4 Fla. 203; Phelan v. Phelan, 12 Fla. 449; Hart v. Stribling, 21 Fla. 136; Keil v. West, 21 Fla. 508, text 520; Prentiss v. Paisley, 25 Fla. 927, 7 South. Rep. 56, S. C. 7 L. R. A. 640. As- was said in Keil v. West, supra, “Suffering a decree pro confesso is an admission of the facts which are well pleaded, but the decree does not aid or 'Supplеment a bill which does not state a good cause of action.”

If these principles are applicable in all suits in equity, they áre especially so in suits for divorce, by reason of the fact that the government is a party thereto, as we have already seen. As was. quoted and approved in Moore v. Moore, 22 Texas 237^ text 239: “The remedy of divorce is, at best, but a mournful remedy; and it is one which the law will dispense with an unwilling hand. This is manifest from, the principle which runs through the whole proceedings, in the prоcess of divorce. A jealous anxiety to disregard every admission, marks every step. Hence, no judgment passes ‍​‌​‌‌‌​​​​​​‌​‌​‌​​‌​‌​​‌​‌​​​​‌‌​‌​​​‌​​​‌‌‌​‌​‍by default, without proof; and if the defendant declines to appear, the -courts are nevertheless bound to proceed with the same formality, as if he were present, and had maintained the keenest opposition.” Also see 2 Bishop’s Marriage, Divorce and Separation, section 692, and 14 Cyc. 703. As was said in Phelan v. Phelan, 12 Fla. 449, text 453 : “A decree pro confesso results from a default in pleading. What its effect may be in other cases it is needless to inquire here, but defaults in eases of this character amount to but little.”

The following headn'ote from' Johnson v. Johnson, 4 Wis. 135, is quoted in that case and approved, “When the bill ¿s so defective as to fail in setting out a legal, cause for divorce, no amount of evidence, nor the verdict of a jury, will warrant a decree upon it.” Gredler v. Gredler, 36 Fla. 372, 18 South. Rep. 762.

This being true, if the bill in the instant case fails to contain sufficient allegations, which if established by competent testimony would warrant a decree for divorce, to have referred the matter to a master in chancery for the purpose of taking testimony would have been fruitless, simply entailing useless expense. In that event the court would be fully wtarranted in' rendering a decree dismissing ffie bill, as was done.

The sole -ground alleged and relied upon by the complainant in the instant case is еxtreme cruelty, the suit being based on paragraph 4 of section 1906 of the General Statutes of 1906. Extreme cruelty has been a ground irr divorce in Florida since territorial days, forming part of 'the act of October 31, 1828, which was repealed by an aсt passed Nlovember 3, 1829, but the former act was expressly revived by chapter 849 of the laws of 1835. See section. 2 -on page 83 of Duval’s' Compilation and section 8 on page 223 of Thompson’s Digest. We have a line of decisions dealing with extreme cruelty as a ground for divorce, in which the term is defined and the sufficiency of the allegations in -the bill relating thereto is treated. See concurring opinion of Mr. Justice Westcott in Underwood v. Underwood, 12 Fla. 434, text 440; Burns v. Burns, 13 Fla. 369; Donald v. Donald, 21 Fla. 571; Williams v. Williams, 23 Fla. 324, 2 South. Rep. 768; Palmer v. Palmer, 26 Fla. 215, 7 South. Rep. 864; Beekman v. Beeknmn, 53 Fla. 858, 43 South. Rep. 923. The following cases- will also pro-ve helрful, though they deal more directly with the ground of habitual indulgence by the defendant in violent and ungovernable temper than with the ground of extreme cruelty: Phelan v. Phelan, 12 Fla. 449; Crawford v. Crawford, 17 Fla. 180; Johnson v. Johnson, 23 Fla. 413, 2 South. Rep. 834; Dean v. Dean, 36 Fla. 492, 18 South. Rep. 592; Hickson v. Hickson, decided here at the last term.

Mr. Justice Westcott in his -concurring opinion in Underwood v. Underwood, 12 Fla. 434, text 440, quotes with approval the following language of Lord Stowell in Evans v. Evans, 1 Hag. 35 :

“What merely wounds the mental feelings is in few cases to be admitted, where not accompanied with bodily injury, either actual ior menaced. Mere austerity of temper, petulance of manners-, rudeness of language, a want of civil attention- -and accommodation, even -occasional sallies o-f passion, if they do not -threaten bodily harm,“do not amount to legal cruelty. They are high moral -offenses in the marriage state, undoubtedly, not innocent surely in any state -of life, -but still they are not that cruelty against which the law can relieve. Under such misconduct of either of the parties, for it may exist on -one side as well as the other, the suffering party must bear in some degree .thе consequences of an'injudicious connection, must subdue by decent resistance or prudent conciliation, and if this oanno-t be -done both must suffer in silence.”

This doctrine has been, consistently adhered to- by this court, -as a reference ‍​‌​‌‌‌​​​​​​‌​‌​‌​​‌​‌​​‌​‌​​​​‌‌​‌​​​‌​​​‌‌‌​‌​‍to the foregoing cited decisions will show. See especially Palmer v. Palmer, supra; B-eekmlan v. Beekman, supra; Hickson v. Hickson, supra. As was said in the last cited -case, ££|i-t is -not the policy of the law to gr<ant divorces for post-nuptial causes short of marital infidelity when such causes do not in fact render one of-the parties incapable of performing the duties incident to the marriage status. Relief is given in such cases by the courts on the ground that 'the conduct of one papty renders it impracticable for one of the parties to further perform the martial duties.” As was held in Palmer v. Palmer, supra, “Divorce on the ground of extremis cruelty will be denied, where there is no actual violence, unless the treatment, or abuse, or neglect, or bad conduct complained of be such as damagеs health, or renders o> habitation intolerable and unsafe, or unless there are threats of mistreatment of such flagrant kind as to cause reasonable and abiding apprehension of bodily violence, so as to render it impracticablе to discharge marital duties.” This language was quoted and approved in Beekman v. Beekman, supra.

As was held in Johnson v. Johnson, 4 Wis. 135, which language is quoted arid approved in Phelan v. Phelan, 12 Fla. 449, text 453, “the general charge of ‘cruel and inhuman treatment,’ is not sufficient, when the facts and detаils specified as constituting the charge, fall short of sustaining it.” Also see Crawford v. Crawford, 17 Fla. 180, and Johnson v. Johnson, 23 Fla. 413, 2 South. Rep. 834. This is in line with the well established principle that in all bills in equity facts must be stated and not opinions or legal conclusions. Godwin v. Phifer, 51 Fla. 441, 41 'South. Rep. 597, and authorities there cited. For obvious reasons this principle is especially applicable to bills for divorce.,

Wie turn now to the allegations in the bill upon which the complainant relies and test them by the application of the foregoing principles. ‍​‌​‌‌‌​​​​​​‌​‌​‌​​‌​‌​​‌​‌​​​​‌‌​‌​​​‌​​​‌‌‌​‌​‍Stripping such аllegations of insinuations, intimations and innuendos, they simply charge the defendant iin the most general way with indiscreet a-nd imprudent -conduct and relations- with young men, all of which might well be embraced under the well known term, “flirting.” However reprehensible such conduct may be in a married woman, it does not constitute one of the statutory grounds for 'divorce in this state. 1 We are of the opinion -that the bill is wanting in equity in that it fails to make or state a case entitling the complainant to the relief sought, or to any relief, even if he had proved all the material allegations therein.

It follows that no- error was committed in dismissing the bill, and that the decree appealed from must be affirmed.

Cockrell and Whitfield, JJ., concur;

Taylor, Hocker, and Parkhill, JJ., concur in the opinion.

Case Details

Case Name: Hancock v. Hancock

Court Name: Supreme Court of Florida

Date Published: Jan 15, 1908

Citation: 55 Fla. 680

Court Abbreviation: Fla.