Baker v. Baker

• Decision Date: 06 December 1927
• Citation: 114 So. 661,94 Fla. 1001
• Parties: BAKER v. BAKER.
• Court: Florida Supreme Court

114 So. 661

94 Fla. 1001

BAKER v. BAKER.

Florida Supreme Court, Division B.

December 6, 1927

Suit by Robert Clarence Baker against Anna Etteene Baker for divorce. From a decree for the complainant, defendant appeals.

Affirmed.

Syllabus by the Court

SYLLABUS

'Extreme cruelty' as ground for divorce under statute is not confined to physical violence; 'extreme cruelty' as ground for divorce includes conduct by either spouse producing in other continuous, intense mental pain and suffering, danger to health, or forced abnegation of marital relation; if mental pain and suffering or physical violence is not of itself sufficient to show cause for divorce, either may supplement other to show such cause (Rev. Gen. St. 1920 § 3191). 'Extreme cruelty,' as ground for divorce under our statute, is by no means confined to physical violence. It includes, in addition to physical violence, such conduct on the part of either spouse as would produce in the other continuous, intense mental pain and suffering, danger to health, or a forced abnegation of the marital relation. If mental pain and suffering or physical violence is not of itself sufficient to show cause for divorce, either may supplement the other to show such cause. [Ed. Note.--For other definitions, see Words and Phrases, First and Second Series, Extreme Cruelty.]

Occasional outbursts of passion, nagging, petulance, readiness to anger frequent and unreasonable complaints, though boisterously made, only rendering relations disagreeable, are not sufficient cause for divorce (Rev. Gen. St. 1920, § 3191). Occasional outbursts of passion, nagging, petulance readiness to anger, frequent and unreasonable complaints, though made in a loudvoiced, boisterous manner, if only calculated to render the relations between the parties unpleasant and disagreeable, or unhappy, do not afford sufficient cause for divorce.

Party relying on extreme cruelty for divorce must show physical violence, or treatment damaging health or causing constant apprehension of physical violence, rendering cohabitation intolerable, or discharge of marital duties impractical (Rev. Gen. St. 1920, § 3191). If extreme cruelty is relied on, physical violence or such treatment or abuse as damages health, or causes a constant apprehension of physical violence, renders cohabitation intolerable, or makes it impractical to discharge marital duties, must be shown.

Habitual violent and ungovernable temper as grounds for divorce must be shown to be displayed towards complainant habitually, injuriously affecting health, personal safety, and comfort, or rendering life intolerable burden, making performance of marital duties impracticable (Rev. Gen. St. 1920, § 3191). If habitual indulgence in a violent and ungovernable temper is relied on, it must be shown that defendant's temper was displayed towards complainant habitually so as to injuriously affect health, personal safety, and comfort, or to render life an oppressive and intolerable burden, making it impracticable to perform marital duties under such burden.

Decree in divorce suit, supported by conflicting evidence, will not be reversed. In divorce an in other proceedings, where the testimony is conflicting, but there is ample evidence to support the finding of the chancellor, the decree will not be reversed.

Irregularities in procedure, not causing prejudice, are not cause for reversing decree in divorce suit. Mere irregularities in procedure are not cause for reversal, where no showing is made that either party was prejudiced thereby.

Wife divorced for adultery is not entitled to alimony; where wife, not guilty of adultery, sues for divorce, all orders touching allowance to her or security therefor are vested in chancellor's discretion (Rev. Gen. St. 1920, § 3195). We construe this statute (section 3195, Rev. Gen. Stats. of Fla.) to mean that under no circumstances shall alimony be granted to an adulterous wife, but, in all other cases where suit for divorce is by the wife, all orders touching alimony, suit money, maintenance, or any allowance to her, or security for the same, is, considering the nature of the case and the circumstances of the parties, vested in the discretion of the chancellor.

Divorced wife, awarded custody of minor children, is entitled to reasonable allowance for their support; allowance to divorced wife for support of minor children may be changed in chancellor's discretion according to faculties of husband. Where a divorced wife is awarded the custody of the minor children of herself and divorced husband, she is entitled to a reasonable allowance from the income of the husband for the care and support of their children. The allowance so made may be increased or decreased from time to time as the faculties of the husband and the judgment of the chancellor may seem meet and proper.

Evidence of wife's extreme cruelty and violent temper held to justify divorce (Rev. Gen. St. 1920, § 3191). In husband's suit for divorce, evidence of extreme cruelty of wife and habitual indulgence in violent and ungovernable temper held to justify granting divorce to husband under Rev. Gen. St. 1920, § 3191. Appeal from Circuit Court, Palm Beach County; Elwyn Thomas, judge.

COUNSEL

M. D. Carmichael and R. K. Lewis, both of West Palm Beach, for appellant.

Abbott & Gaulden, of West Palm Beach, for appellee.

OPINION

TERRELL J.

This appeal is from a final decree entered October 4, 1926, dissolving the bonds of matrimony heretofore existing between appellant and appellee, awarding alimony to appellant in the sum of $250 per month, decreeing the home in which appellant and appellee had lived to be the place of appellant's residence, and decreeing the custody of their three minor children to be in appellant, with permission to visit said children at stated times on the part of appellee. The said final decree also awards attorney's fees to appellant in the sum of $1,000, and finds the title to certain lands described in a deed recorded in Deed Book 53, at page 395, Public Records of St. Lucie county, Fla., to be in appellant.

The bill for divorce was brought by appellee, and is grounded on (1) 'extreme cruelty by defendant to complainant,' and (2) 'habitual indulgence by defendant in violent and ungovernable temper'; either of which is cause for divorce in this state. Section 3191, Revised General Statutes of Florida.

A demurrer to the bill of complaint was overruled. It is first contended by appellant that this was error, because the exhibitions of violent and ungovernable temper on the part of defendant as charged in the bill were directed to other persons than the complainant, and that there is insufficient showing of extreme cruelty to warrant a divorce; it being insisted that 'extreme cruelty' as ground for divorce contemplates physical violence.

Extreme cruelty as ground for divorce under our statute is by no means confined to physical violence. It includes, in addition to physical violence, such conduct on the part of either spouse as would produce in the other continuous, intense mental pain and suffering, danger to health, or a forced abnegation of the marital relation. If mental pain and suffering or physical violence is not of itself sufficient to show cause for divorce, either may supplement the other to show such cause. Donald v. Donald, 21 Fla. 571; Williams v. Williams, 23 Fla. 324, 2 So. 768; Palmer v. Palmer, 26 Fla. 215, 7 So. 864; Wethington v. Wethington, 57 Fla. 551, 49 So. 549; Prall v. Prall, 58 Fla. 496, 50 So. 867, 26 L. R. A. (N. S.) 577; Hooker v. Hooker, 65 Fla. 53, 61 So. 121, 43 L. R. A. (N. S.) 964; Erdmans v. Erdmans, 90 Fla. 858, 107 So. 188; Kellogg v. Kellogg (Fla.) 111 So. 637.

This court is committed to the doctrine that occasional outbursts of passion, nagging, petulance, readiness to anger, frequent and unreasonable complaints, though made in a loud-voiced, boisterous manner, if only calculated to render the relations between the parties unpleasant and disagreeable, or unhappy, do not afford sufficient cause for divorce. Palmer v. Palmer, supra. An examination of many cases where divorce was sought on the ground of extreme cruelty or habitual indulgence in a violent and ungovernable temper, or both, suggest this test to determine the sufficiency of the bill and the proofs to warrant the relief. If extreme cruelty is relied on, physical violence or such treatment or abuse as damages health or causes a constant apprehension of physical violence, renders cohabitation intolerable, or makes it impractical to discharge marital duties, must be shown. If habitual indulgence in a violent and ungovernable temper is relied on, it must be shown that defendant's temper was displayed towards complainant habitually so as to injuriously affect health, personal safety, and confort, or to render life an oppressive and intolerable burden, making it impracticable to perform marital duties under such burden. Palmer v. Palmer, supra; Beekman v. Beekman, 53 Fla. 858, 43 So. 923; Hancock v. Hancock, 55 Fla. 680, 45 So. 1020, 15 L. R. A. (N. S.) 670; Hickson v. Hickson, 54 Fla. 556, 45 So. 474; Taylor v. Taylor, 63 Fla. 659, 58 So. 238; Kellogg v. Kellogg, supra.

Inspection of the bill of complaint discloses that, a few years after the marriage of complainant and defendant in 1912 differences arose between them, and from then to the time of their separation it is charged that defendant constantly upbraided complainant, charging him with infidelity to her by having immoral illicit relations with various and sundry white and colored women, and repeatedly calling him all kinds of vile and nasty epithets (naming them) too indebcent to enumerate. It is also...