Lyon v. LyonLyon v. Lyon
This appeal is from a final decree entered in divorce proceedings instituted below by the wife against the husband on the ground of extreme cruelty. The cause was tried before a Special Master, who found that plaintiff had sustained the allegations of her complaint and recommended that her prayer for a divorce and custody of the minor child of the parties be granted. The Chancellor, however, held that the evidence was insufficient to establish the ground of extreme cruelty, and thereupon sustained the defendant‘s exceptions to the Master‘s Report and dismissed the plaintiff‘s bill. Plaintiff has appealed from the final decree of dismissal.
We will first dispose of the plaintiff‘s contention that the Chancellor is limited by the exceptions in reviewing the Master‘s findings. It appears that the defendant filed only two exceptions to the Master‘s Report: (1) that the Master erred in finding that the plaintiff was a resident of Florida, and (2) that the Master erred in finding that the plaintiff had proved the allegations of her bill of complaint and was entitled to a decree of divorce for the reason that “there is absolutely no corroboration of the Plaintiff‘s testimony concerning the alleged grounds.” It is the contention of the plaintiff that the Chancellor was limited, under the second exception, to a determination of whether there was sufficient corroborative testimony, and that it was error to review the sufficiency of the evidence as a whole. This contention cannot be sustained.
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But even if the Chancellor did not err in reviewing the evidence as a whole, he must be held in error for dismissing the plaintiff‘s complaint.
The plaintiff alleged generally that defendant was “domineering, faultfinding, critical, neglectful,” and was guilty of other misconduct of a similar nature. The specific acts of misconduct alleged and testified to by plaintiff were not denied by defendant — and, in fact, ample corroboration may be found in the defendant‘s own testimony.
While the defendant‘s attitude and conduct toward plaintiff were not such as would inevitably bring a wife to the point of severing the marriage bond, we think they are well within the tests of “extreme cruelty” as exemplified by the decisions of this court in Diem v. Diem, 141 Fla. 260, 193 So. 65; Baldwin v. Baldwin, 151 Fla. 341, 9 So.2d 717; Chestnut v. Chestnut, 160 Fla. 83, 33 So.2d 730. “In Diem v. Diem [supra] we held that any habitual indulgence on the part of one spouse that causes mental torture, undermines the health, or tends to dethrone the reason of the other is sufficient to constitute extreme cruelty as a ground for divorce. We further held in the latter case that extreme cruelty as ground for divorce is relative. What constitutes it may be determined by the degree of one‘s culture, his emotions, nervous reaction, or moral sense. Any course of conduct which meets this test is sufficient to warrant relief from the marital bonds.” Bergman v. Bergman, 145 Fla. 10, 199 So. 920, 922. Thus, in determining whether particular conduct constitutes extreme cruelty, the test is not whether the conduct should result in the infliction of pain and suffering, but whether the conduct does, in fact, have that effect upon the other spouse; and if it does, then the offending spouse continues in the indulgence in that conduct at his or her peril of destroying and bringing to an end the marital relation. See Baldwin v. Baldwin, supra.
In the instant case, there is no question as to the effect of the defendant‘s attitude and conduct upon plaintiff; the evidence is abundant to show that such had rendered further cohabitation intolerable to the plaintiff and that any further effort on her part to continue in the marriage relationship would result in a nervous breakdown. Nor can it be doubted that the defendant was well aware of the particular acts, or non-action, on his part which were so distressing to plaintiff.
From all the evidence, it seems to us that this marriage, like that discussed in McGee v. McGee, supra, is a “hopeless failure,” and that “This couple can never sail the matrimonial sea, except in storm, tempest, fog and misery. They can only wound and never comfort one another.” [149 Fla. 31, 5 So.2d 49.] Under such circumstances, and under the authority of the cases above cited, we must hold that it was error to deny to the plaintiff a divorce. No issue appears to have been made between the parties as to the custody of the minor child, and the defendant does not here contend that, in the event the decree is reversed, the plaintiff should not be given the custody of the child.
Accordingly, the decree is reversed and the cause remanded for the entry of a decree awarding to plaintiff a divorce and the custody of the minor child of the parties, an allowance for the support of the minor child, and such sums for alimony and suit money “as from the circumstances of the parties and nature of the case may be fit, equitable and just.”
TERRELL, Acting Chief Justice, ADAMS, J., and DICKINSON, Associate Justice, concur.