Benson v. Benson

• Decision Date: 24 April 1958
• Docket Number: No. 57-356,57-356
• Citation: 102 So.2d 748
• Parties: Mark E. BENSON, Appellant, v. Mildred Estella BENSON, Appellee.
• Court: Florida District Court of Appeals

Page 748

102 So.2d 748

Mark E. BENSON, Appellant, v. Mildred Estella BENSON, Appellee.

No. 57-356.

District Court of Appeal of Florida, Third District.

April 24, 1958.

Rehearing Denied June 4, 1958.

Gustafson, Persandi & Vernis, Coral Gables, for appellant.

Ferrell & Young, Miami, for appellee.

CAROLL, CHAS., Chief Judge.

This appeal is from a divorce decree rendered by the Circuit Court of Dade County. The appellant, who was the plaintiff below, filed suit for divorce against his wife on October 31, 1956, charging cruelty, ungovernable temper and adultery. The appellee answered denying the husband's allegations and counterclaimed for divorce charging him with cruelty, intemperance and adultery. There were no children involved. The parties owned their furnished home as tenants by the entireties.

Following trial of the suit before him, the chancellor found the equities were with the defendant wife, denied the plaintiff's prayer for divorce, and granted the defendant wife a divorce and other relief on her counterclaim, including permanent alimony of $50 a week, and awarded her the husband's interest in the home. The final decree is not lengthy, and reads as follows:

'The court has considered carefully the evidence submitted at the trial of the cause, and finds that the equities are decidedly with the defendant wife and that she is entitled to the relief accorded by this decree.

'The bonds of matrimony between the plaintiff, Mark, E. Benson, and the defendant and counterclaimant, Mildred Estella Benson, are dissolved and such parties are divorced, each from the other, absolutely and forever.

'The plaintiff is required to make and execute, and to deliver to the defendant and counterclaimant, immediately on the entry of this decree, a good and sufficient deed in and by which he shall convey to her all his right and title to, and interest in, that certain real property mentioned and referred to in the paragraph numbered 9 of his complaint (located at 5831 Southwest Fifteenth Street in the City of Miami, Dade County, Florida) and a good and sufficient instrument of assignment in and by which he shall assign and transfer to her all his right and title to, and interest in, all furniture, furnishings and equipment now in the dwelling on such real property.

'The plaintiff is further required (a) to pay to the clerk of this court, for the use and benefit of the defendant and counterclaimant, and for her maintenance and support, the sum of $50 on May 17, 1957, and a like sum on Friday of each week thereafter until she dies or remarries; (b) to pay to Messrs. Ferrell and Young, her attorneys, immediately on the entry of this decree, the sum of $500 to compensate them reasonably for the professional services rendered by them in her behalf in this suit; and (c) to pay all unpaid costs of this suit and to reimburse the defendant and counterclaimant for such costs, if any, as she has paid.

'This is a case in which the court would prefer to award 'a lump sum' as permanent alimony (pursuant to the provisions of section 65.08 of the Florida Statutes); but the resources of the plaintiff are not such as to enable him to make an adequate lump sum payment. The court, therefore, has substituted the foregoing financial requirements.'

The appeal as presented and argued to this court is restricted to challenging the allowance of alimony and the granting of the husband's interest in the residence premises to the wife.

It is shown that the sparation of the parties occurred in July of 1955, when the husband moved out and left the wife. By agreement the wife was allowed the use of the home, and the husband furnished her an automobile and $50 a week for her support, and undertook to pay her medical and dental expenses. Her mother, who had been living with them, continued to live with the defendant wife in the home. Some time in August the defendant wife was joined in the home by a doctor who continued to live there in the household. Early in September the defendant's father also moved into the house. The four of them continued to live there in the two-bedroom house, until October of the next year when the defendant wife and the doctor moved to a home owned by him in Coral Gables, where she and he continued to reside until some time after the divorce suit was commenced.

The appellant argues that as the wife's alleged adultery was established on the record, she was barred from receiving alimony by section 65.08, Fla.Stat., F.S.A. The appellee contends that for this court to determine from the record whether the wife was shown to have been guilty of adultery would be substituting its judgment for that of the chancellor on the evidence. While the position taken by the appellee is correct to the effect that an appellate court should not substitute its judgment for that of a jury or chancellor arrived at by resolving conflicts of sufficient evidence, that point is not applicable here. This is so, because the chancellor did not make any findings of fact, one way or the other, relating to the issue as to adultery of the wife.

The finding made by the court was 'that the equities are decidedly with the defendant wife and that she is entitled to the relief accorded by this decree.' As the relief accorded her included alimony, and as the reason or basis on which it was granted is not shown in the decree, we must assume that the trial court either (1) determined that the wife was not guilty of adultery, or (2) found that the wife was guilty of adultery but that the husband could not take advantage of her adultery, which in turn would require a finding that the conduct and circumstances relating to the husband were sufficient to invoke and apply against him the doctrine of connivance.

We need devote title time to the question of whether adultery on the part of the wife was shown and established on the record. If the trial court concluded, on this record, that the wife was free from adulterous conduct, then such a finding was plainly wrong and contrary to the manifest weight of the evidence. So clearly and definitely is the adultery of the wife established on the record, for the period from August 1955, one month after the separation, until the time of the filing of the divorce suit on October 31, 1956, that there is no necessity to specify the details of the evidence, which could not reasonably be interpreted as showing other than that the defendant wife and her doctor lived, during the time in question, openly in a state of adultery. To the contrary there was only the protestation of the defendant wife that the relationship with her paramour was not adulterous, which under the circumstances was unacceptable.

'To prove adultery the law does not require that specific acts be attested by eyewitnesses. The rule approved by the weight of authority is that if the circumstances proven are such as to lead the guarded discretion of a reasonable and just man to the guilt of the participants that is sufficient. Heath v. Heath, 103 Fla. 1071, 138 So. 796, 82 A.L.R. 537; Thayer v. Thayer, 101 Mass. 111, 100 Am.Dec. 110. In Atha v. Atha, 94 N.J.Eq. 692, 121 A. 301, it was held that if desire and opportunity were proven adultery would be presumed.' McMillan v. McMillan, 120 Fla. 209, 162 So. 524, 525. See also Engebretsen v. Engebretsen, 151 Fla. 372, 11 So.2d 322; Blue v. Blue, Fla.1953, 66 So.2d 228; Parker v. Parker, Fla.App.1957, 97 So.2d 136; Goslinowski v. Goslinowski, Fla.App.1957, 97 So.2d 723.

Assuming that the court found that the wife was guilty of adultery after the separation, the question then to be determined is whether the prohibition in section 65.08, Fla.Stat., F.S.A., to the effect that 'no alimony shall be granted to an adulterous wife,' is eliminated in the wife's favor under the doctrine of connivance.

If the husband was guilty of acts constituting grounds for divorce, and if the separation of the parties was the result of his misconduct towards the wife, the court was justified in refusing to grant the husband's prayer for divorce and in granting the wife a divorce against him, even though she was clearly shown to have been guilty of adultery after the separation. See Stewart v. Stewart, 158 Fla. 326, 29 So.2d 247, 170 A.L.R. 1073. But the discretion thus reposed in the chancellor to excuse the wife for her adultery in determining the equities of the parties as they relate to the granting or denial of a divorce, does not permit excusing the adultery for the purpose of enabling a grant of alimony, because of the statutory interdiction.

The doctrine of connivance is dealt with at length in 17 Am.Jur., Divorce and Separation, §§ 250-259, pp. 431-438. See also Keezer on the Law of Marriage and Divorce, 3d Ed., §§ 299, 516. It has...