Cadieux v. Cadieux

• Decision Date: 12 November 1954
• Citation: 75 So.2d 700
• Parties: Joseph Jean CADIEUX, Appellant, v. Evelyn Mae CADIEUX, Appellee.
• Court: Florida Supreme Court

Page 700

75 So.2d 700

Joseph Jean CADIEUX, Appellant, v. Evelyn Mae CADIEUX, Appellee.

Supreme Court of Florida, Division A.

Nov. 12, 1954.

Joseph C. Black, Jacksonville, for appellant.

J. C. Sapp, Green Cove Springs, for appellee.

SEBRING, Justice.

The defendant below has appealed from a final decree entered by the Circuit Court for St. Johns County, Florida, in a proceeding by bill in the nature of a bill of review to set aside a final divorce decree on the ground that it was obtained through fraud

In her suit below the plaintiff alleged that in a former divorce action the defendant, who was and is a member of the armed forces of the United States, had falsely sworn that her residence and address was unknown to him and that on this false assertion he had obtained the decree which is the subject of attack. The prayer of her complaint was that the final decree of divorce thus obtained be vacated and set aside and that she be given an opportunity to file her defenses to the alleged cause of action.

Service was had upon the defendant by publication and in due course he filed his answer. On the same day the answer was filed, the attorneys of record for the defendant filed an unsworn and unsupported motion to stay the proceedings, under the 1940 Soldiers' and Sailors' Civil Relief Act, on the ground that 'the defendant (who) is * * * in the United States Navy and stationed at * * * San Diego, California * * * is under military orders and it will be impossible for him to adequately prepare his defense in the above entitled cause.'

The circuit court denied the motion and appointed a special examiner to take and report the testimony of the parties. Subsequently, a hearing was had before the examiner at which the plaintiff appeared and adduced evidence to sustain her complaint, but at which defendant neither appeared nor offered proofs in support of his answer.

After the testimony had been taken before the examiner the attorneys of record for defendant filed a second unsworn and unsupported motion to stay the proceedings on the same grounds as were alleged in the original motion. This motion was denied by the trial court and a final decree in favor of the plaintiff was entered.

Three weeks after the entry of the decree the defendant filed a motion in which he sought a rehearing on his motions for stay which had been filed prior to the rendition of the final decree. In the motion he set up the same grounds that had been included in his original motion and averred, in addition, that he had 'applied for emergency leave to come to Florida, when this cause was set for the taking of testimony, so he could confront the witnesses testifying against him, offer testimony in his own behalf, and confer in person with his solicitors; but that his application was denied because shortly theretofore (he) had been forced to obtain emergency relief because of the death of his brother.' The trial court denied this motion for rehearing and this appeal followed.

The only question on the appeal is whether or not under the facts that have been stated, the trial court abused its discretion in refusing to stay proceedings under the Soldiers' and Sailors' Civil Relief Act of 1940, 50 U.S.C.A. Appendix, § 501 et seq.

The applicable statutory provision, title 50, U.S.C.A. Appendix, § 521, is as follows:

'Stay of proceedings where military service affects conduct thereof. At any stage thereof any action or proceeding in any court in which a person in military service is involved * * * shall, on application to it by such person * * * be stayed * * * unless, in the opinion of the court, the ability of (the service man) to * * * conduct his defense is not materially affected by reason of his military service.' (Emphasis supplied.)

In applying this statute, as an Act of Congress, the generally accepted rule is that a state supreme Court will be guided by decisions of the highest federal courts in their interpretations of the various provisions. Semler v. Oertwig, 234 Iowa 233, 12 N.W.2d 265; Gates v. Gates, 197 Ga. 11, 28 S.E.2d 108. Although there have been numerous and sometimes inconsistent decisions under the statute in the various states, the leading case of Boone v. Lightner, decided by the U. S. Supreme Court in 1943, 319 U.S. 561, 63 S.Ct. 1223, 1228, 87 L.Ed. 1587, would appear to be of controlling importance in disposing of this appeal.

The appellant's contention is that, when the statute is invoked by motion for continuance, a stay is mandatory and the court has no...