Anders v. Anders
| Decision Date | 21 May 1943 |
| Citation | 153 Fla. 54,13 So.2d 603 |
| Parties | ANDERS v. ANDERS. |
| Court | Florida Supreme Court |
Rehearing Denied June 12, 1943.
Appeal from Circuit Court, Leon County; E. C. Love, Judge.
Clyde W Atkinson and J. Lewis Hall, both of Tallahassee, for appellant.
William Blount Myers, of Tallahassee, for appellee.
This appeal brings for review a decree disallowing a divorce to the appellant husband on the ground of desertion.
The parties were married in 1933. The wife abandoned the home in October of 1936 and filed a statutory suit for separate maintenance. Section 65.10, Florida Statutes, 1941, F.S.A. § 65.10. That suit terminated by a final decree in December, 1937, in favor of the husband. In the separate maintenance suit, it was the wife's contention based upon legal advice, that she was justified in remaining separate and apart from her husband unless he would force his sister to depart from the home. After termination of the separate maintenance suit, the wife unreservedly offered to return. However, by that time the period of one year for desertion had run. When the husband refused to take her back, she then, upon further advice of her attorney, returned and remained under the roof without her husband's approval. Thereupon the husband brought suit for divorce charging desertion under Section 65.04 Florida Statutes 1941, F.S.A. § 65.04.
It is apparent that the Chancellor was governed largely by testimony relative to desertion which transpired prior to the decree in the separate maintenance suit. Was not the determination in such suit sufficiently conclusive to estop either party to further litigate the question of who was at fault in the separation.
It is true that an adjudication in the separate maintenance suit is not res judicata in a proceeding for divorce on the ground of desertion, for in the latter case the desertion must have existed for a period of one year, whereas in the former there is no required time limit. In other respects, the issues are so similar that other courts have held that an adjudication in the former would estop the parties to relitigate the same issue in another proceeding. Harding v. Harding, 198 U.S. 317, 25 S.Ct. 679, 4 L.Ed. 1066; Freeman on Judgments 5th Edition, Vol. 2, page 1910; Vol. 31 C.J.S., Estoppel, § 7, page 194.
The wife absented herself from the home and made an issue of who was at fault for the separation. The issue was concluded adversely to her and we hold that she is now estopped to go behind that decree and show that the husband was responsible for the separation.
It is claimed by appellee that the record and decree of the Court in the separate maintenance suit was not plead and proven in this case. The answer to this is found in the wife's answer in the divorce suit wherein she admits the facts relating to the separate maintenance suit and the decree therein.
The wife also claims that even though she was at fault in attaching conditions to her offer to return up until the final decree in the separate maintenance suit, that thereafter she unreservedly offered to return and the husband refused to take her back. By that time, however, a ground for divorce existed in favor of the husband and the question arises whether the husband was obliged to take her back.
Condonation is a conditional forgiveness of a matrimonial offense by the aggrieved party. It presupposes the existence of a ground for divorce and the privilege of forgiving the wrongful act rests with the innocent party and not with the offending party. Vol. 27 C.J.S., Divorce, § 59, page 608.
Once the statutory ground for divorce because of desertion has occurred, the right to divorce becomes vested and it cannot be taken from the injured party except by his own act. 27 C.J.S., Divorce, § 37, page 571; Tremarco v. Tremarco, 117 N.J.Eq. 50, 174 A. 898, 95 A.L.R. 231; McKay v. McKay, 172 Ark. 918, 290 S.W. 951.
The fact that the wife in this case might have acted in the best of faith on advice of her counsel in remaining away subject to the condition stated will not alter her case. Neither will her plea be stronger because she insisted on returning and remaining in the home on advice of counsel. It all adds up to the proposition that if a successful marital status is dependent upon cohabitation on advice of counsel, it is unquestionably doomed to failure. When the evidence is considered in its entirety, it shows beyond a question of doubt that the marriage relation was and would remain intolerable.
It therefore appears that the Chancellor misconceived and erroneously applied the law to the facts of the case. The decree should have been for a divorce to the husband as prayed. No other issues are involved. The decree is reversed with instructions for a decree not inconsistent with this opinion.
Reversed.
The record in this case discloses that Mattie Elizabeth Atkinson and John (Judge) C. Anders, both of Leon County, Florida, married at Camilla, Georgia, on October 14, 1933, and a son was born to the marriage, and the parties cohabited together until about October 9, 1936. On August 31, 1936, Mattie Elizabeth Anders filed a suit for divorce against John C. Anders in the Circuit Court of Leon County, Florida, and on September 12, 1936, voluntarily caused a dismissal thereof. On October 9, 1936, under the provisions of Section 4989, C.G.L., F.S.A. § 65.10, she filed a bill of complaint in the same court and sought a decree for separate maintenance, awarding her the custody of their child, and for support money for the child, counsel fees, and other relief.
The cause was presented to the lower court on the bill of complaint, the answer of the defendant praying for affirmative relief, and testimony submitted in support of the issues made by the pleading of the respective parties; and, after hearing argument of counsel on December 21, 1937, the lower court held: (a) that Mary Elizabeth Anders was not living apart from her husband through his fault and therefore not entitled to maintenance under the provisions of Section 4989, C.G.L.; (B) Mattie Elizabeth Anders was awarded the custody of the child, with visitation privileges to the father; (c) the defendant was required to pay $25 per month for the support of the child; and (d) the costs of the suit and her counsel fees in the sum of $100 were taxed by the court against John (Judge) C. Anders.
On October 24, 1939, John C. Anders filed in the Circuit Court a bill of complaint seeking a divorce from Mattie Elizabeth Anders on grounds: (a) desertion; (b) ungovernable temper; and (c) extreme cruelty. The bill of complaint was attacked by her on the ground of want of equity, and the court, after a hearing of counsel, entered an order on April 5, 1940, sustaining the motion to dismiss for want of equity, and did order a dismissal thereof, but in the same order allowed counsel for the plaintiff ten days in which to file an amended bill of complaint.
Pursuant to the provisions of the order, the plaintiff filed an amended bill of complaint. While the prayer of the amended bill sought considerable relief, the relevant and material portions thereof are the allegations charging the wife with wilful, obstinate and continuous desertion of the plaintiff for a period of more than one year, as provided by Subsection 7 of Section 4983, C. G. L., F.S.A. § 65.04(7). Legal desertion is alleged to have occurred between 'shortly prior to October 9, 1936' and October 17, 1939.
They are:
'* * * they lived together as man and wife until a short time prior to the 9th day of October, A. D. 1936, the exact date being unknown to your plaintiff except that it was prior to the 9th day of October, A. D. 1936, when the defendant, Mattie Elizabeth Anders, wilfully, obstinately deserted your plaintiff without any justification or excuse and continued to wilfully, obstinately and continually desert and abandon your plaintiff from some months prior to the 9th day of October, A. D. 1936, the exact date being unknown to your plaintiff and said wilful, obstinate and continued desertion on the part of the defendant continued without any justification or excuse until the 17th day of October, A. D. 1939, although your plaintiff at the time of the desertion and for more than a year thereafter was ready, able and willing to live with the defendant as husband as she well knew, if the defendant would conduct herself as a wife should.
* * *
* * *
'* * * that during the past two years and four months after deserting your plaintiff she lived separate and apart from your plaintiff, after having wilfully and obstinately deserted him and has continued to live separate and apart from him with the said child living first at one place and then at another until on Sunday, the 8th day of October, A. D. 1939, she returned to your plaintiff's home at about ten o'clock at night with the said child and advised your plaintiff that she was returning on legal advice.
'Your plaintiff further alleges that since the return of said defendant he has not lived or cohabited with her, but that notwithstanding their living apart, as aforesaid, the defendant has continued to reside in your plaintiff's home and has frequently flew into fits of anger and rage, exhibiting towards your plaintiff and also towards your plaintiff's sister, who is residing with them and who has resided with him since he was deserted by the said defendant.
'Your plaintiff further respectfully requests this Honorable Court to take judicial notice of the testimony given by the respective parties in that certain suit which terminated on the 21st day of December, A. D. 1937, in determining whether it...
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Field v. Field
...that the wife is living apart from the husband under a valid and binding separate maintenance decree of the court. In Anders v. Anders, 153 Fla. 54, 13 So.2d 603, we held that where the husband's responsibility for separation from his wife had been determined adversely to the wife in separa......
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...of the parties at the inception was due to the fault of the husband and constituted on his part a desertion of the wife. Anders v. Anders, 153 Fla. 54, 13 So.2d 603; Baptist v. Baptist, 130 Fla. 702, 178 So. 846. The husband maintains, however, that since the rendition of the decree he has ......
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