Bagwell v. Bagwell
| Decision Date | 03 August 1943 |
| Citation | 14 So.2d 841,153 Fla. 471 |
| Parties | BAGWELL v. BAGWELL. |
| Court | Florida Supreme Court |
Rehearing Denied Sept. 13, 1943.
Appeal from Circuit Court, Leon County; W. May Walker Judge.
John I Kelley, of Atlanta, Ga., Keen & Allen, and A. Frank O'Kelley, Jr., of Tallahassee, for appellant.
B. K Roberts, W. K. Whitfield, and Talbot Whitfield, all of Tallahassee, for appellee.
J. C. Bagwell, Jr. by bill of complaint filed in the Circuit Court of Leon County, Florida, on April 4, 1941, against Evelyn P. Bagwell prayed for a divorce on grounds: (a) extreme cruelty by the wife against the husband; and (b) the habitual indulgence by the wife of a violent and ungovernable temper. On September 13, 1941, pursuant to stipulation, counsel filed an amendment to the original bill in which he charged the wife with the additional statutory ground of willful, obstinate and continuous desertion by the defendant of the plaintiff for a period of one year.
The grounds for divorce, as alleged in the bill of complaint and amendment thereto, were by appropriate allegations of an answer filed by the defendant, each specifically denied. The answer interposed a further defense as a bar to the relief sought to the effect that J. C. Bagwell, Jr., filed suit against the defendant in the Superior Court of Fulton County; Georgia, in which he charged the answering defendant with cruel treatment. The wife by answer denied the allegations of the petition filed in the Fulton County Court and, after the issues were settled, and on December 9, 1940, the tendered issues were submitted to a jury and evidence adduced by the parties in support thereof, and, after considering all the evidence and the charge of the Court upon the law, the jury returned into court and rendered a verdict in behalf of the wife against the husband, J. C. Bagwell, Jr. An appropriate judgment was entered thereon and it is contended that the legal effect of the verdict and judgment so rendered and entered makes the ground of cruel treatment by the wife against the husband, as alleged in the bill of complaint, matters res adjudicata, and J. C. Bagwell, Jr., is estopped as a matter of law from litigating in the suit at bar the issues placed at rest by the judgment entered in the Superior Court of Fulton County, Georgia.
Cruel treatment, under Section 2946 of the 1926 Georgia Code, may be a ground for total divorce, in the discretion of the jury. It has many counterparts in our ground of extreme cruelty recognized as a ground for divorce. See Subsection (4) of Section 65.04, Fla. Stats. 1941, F.S.A. § 65.04(4). In the case of Wilkinson v. Wilkinson, 159 Ga. 332, 125 S.E. 856, cruel treatment was defined as a willful infliction of pain, bodily and mentally, upon the complaining party, such as reasonably justifies an apprehension of danger to life, limb or health. In the case of Henderson v. Henderson, 137 Fla. 770, 189 So. 24, this court held that extreme cruelty as a ground for divorce is not confined to paysical violence, but includes such conduct as produces continuous, intense mental pain and suffering, dangerous to health and the current health of the party against whom the misconduct is directed.
The record discloses that the parties were heard by the Superior Court of Fulton County, and after submitting the issues to a jury, received a verdict and entered a judgment, and we therefore conclude that the cruel treatment provided for in the Georgia Code, supra, and the extreme cruelty recognized by the Florida Laws as ground for divorce are similar, and that the record of judicial proceedings of the Superior Court of Fulton County, Georgia, dated December 9, 1940, introduced in the case at bar, recognized by Section 1 of Article IV of the Federal Constitution, shall and must be recognized by the Courts of Florida and given or awarded full faith and credit. See Herron v. Passailaigue, 92 Fla. 818, 110 So. 539; Beckwith v. Bailey, 119 Fla. 316, 161 So. 576; Givens v. Givens, 121 Fla. 270, 163 So. 574; Thompson v. Thompson, 226 U.S. 551, 33 S.Ct. 129, 57 L.Ed. 347; Williams v. North Carolina, 317 U.S. 287, 63 S.Ct. 207, 87 L.Ed.279.
The Chancellor, when considering the cause on its merits and in the entry of the final decree, failed and otherwise omitted to state or recite therein he granted ground or grounds upon which he granted the divorce, although the bill of complaint charged: (1) extreme cruelty; (2) an ungovernable temper; and (3) desertion for a period of more than one year. It cannot be successfully contended on appeal here that the failure of the decree to recite the exact ground or grounds upon which the divorce was granted was error. See Coslick v. Coslick, 133 Fla. 698, 182 So. 835.
Appellant contends (1) that the evidence fails to establish obstinate, willful and continued desertion by the appellant of the appellee for a period of one year, as required by the statute; (2) that the evidence appearing in the record establishing or tending to establish extreme cruelty by the appellant tow...
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