Smith v. SmithSmith v. Smith
Plaintiff, Clyde Devon Smith, filed suit against his wife, Ann Jacobs Smith, for a divorce based on their voluntarily living separate and apart for two years. (
It is the wife‘s position that after numerous provocations and on her husband‘s request, she left the matrimonial domicile on September 8, 1970. Plaintiff denies this, claiming his wife was at fault in refusing to hаve marital relations with him
In this case, the wife, seeking alimony under
Mrs. Smith bases her claim that she was justified in leaving the matrimonial domicile on her husbаnd‘s actions for approximately six months predating her departure. In essence she testified he spent all his free time at the home of another woman; refused tо share meals with her; would not permit her to ride in the family car; and the day before her leaving the domicile told her to find her own living quarters.
Obviously the trial judge in finding Mrs. Smith free of fault accepted these complaints as proven, otherwise he would have had tо judge her guilty of abandonment. However, in resolving the issue of the wife‘s fault, apparеntly little, if any, consideration was given to the husband‘s remaining countercomplaint of his wife‘s persistent unwillingness to engage in the sexual act.
Although Mr. Smith testified that his wife had refused marital relations since 1955, other than one isolated occasion in 1962, the judge limited his consideration of fault to acts that had transpired between the litigants for the year рrior to her departure. In this connection, Mrs. Smith admitted the cessation of marital relations for approximately five years prior to her leaving, claiming she refused to participate in sexual intercourse with her husband after he became involved with another woman. Apparently she is not referring to Mrs. Winter, the lady about whom she сomplained at length, because her husband‘s alleged involvement with Mrs. Winter was during the same year defendant left her husband.
Because Mrs. Smith carries the burden of proof, she must еstablish she was justified in terminating marital relations for a period of five years (which she аdmits) prior to the separation. We recently held that “persistent refusal of sexual union, in the absence of consent or physical sickness or grave fault on the рart of the other spouse” constitutes cruel treatment. Phillpott v. Phillpott, 285 So.2d 570 (handed down November 16, 1973). As the record stands now, Mrs. Smith has not carried this burden.
During the course of the trial when the plaintiff attempted to testify concerning the lack of marital relations since 1955, the trial judge indicated that any testimony of incidents bearing upon the issue of the wife‘s fault occurring more than 12 months before separation of the parties was irrelevant and immaterial. Since the plea of condonation was not urged by either of the spouses, we are at a loss to understand this general limitation placed on the admissibility of evidence. We feel this ruling unduly restricted the litigants in the presentation of evidence on the issue of the wife‘s fault. For this reason we are of the opinion that this matter should be remanded to permit both parties to fully adduce all admissible evidence to determine whether Mrs. Smith was guilty of abandonment or if her rejection of sexual relations constitutes fault within the purview of the Phillpott case.
Accordingly, the judgment appealed from insofar as it adjudicates fault is annulled and this matter is remanded for further proceedings consistent with the views expressed herein. Assessment of costs is to await the final determination of this cause.
Annulled in part; remanded.