Carducci v. Carducci

• Decision Date: 14 September 1955
• Citation: 82 So.2d 360
• Parties: Alfred A. CARDUCCI, Appellant, v. Josephine CARDUCCI, Appellee.
• Court: Florida Supreme Court

Page 360

82 So.2d 360

Alfred A. CARDUCCI, Appellant, v. Josephine CARDUCCI, Appellee.

Supreme Court of Florida, en Banc.

Sept. 14, 1955.

Alexander S. Gordon, Miami, Beach, for appellant.

Berick, Shapiro & Fried, Miami Beach, for appellee.

PER CURIAM.

Affirmed.

DREW, C. J., and TERRELL, SEBRING, HOBSON, ROBERTS and THORNAL, JJ., concur.

PARKS, Associate Justice, dissents.

PARKS, Associate Justice (dissening).

This is an appeal from a final decree dismissing with prejudice the husband's complaint as amended in a suit for divorce against his wife charging in the original bill the ground of desertion and by amendment the ground of habitual indulgence in violent and ungovernable temper toward him. The complaint was filed October 6, 1952. The wife answered denying the charges in the complaint and cross claimed for alimony unconnected with divorce and further set up the defenses of res adjudicata and estoppel by judgment arising out of certain proceedings in two causes between them had in the Probate Court of Middlesex County, Massachusetts. In one of these causes, she alleges she filed her petition against him praying that he be 'prohibited from imposing any restraint on her personal liberty and making such order as deemed expedient concerning her support and determine that she was justified in living separate and apart from her husband because of his cruel and abusive treatment toward her and grant her separate support.' In the other cause she alleges that plaintiff filed suit for divorce against her alleging the ground of 'cruel and abusive treatment' toward him and the further ground of 'violent and ungovernable temper;' that the facts established in the defense of that case are the same facts alleged in the complaint in this cause and that said action was dismissed after hearing on the merits; that no appeal was taken from this judgment of dismissal, which is therefore res adjudicata between the parties and is also an estoppel by judgment. In this record there is no copy of her complaint nor of his answer in the separate maintenance suit, but there is an exemplified copy of the judgment dated May 6, 1947, which purports to recite the substance of her complaint and further finding and decreeing that she was justified in living apart from him because of his cruel and abusive treatment and granting support. It is certified that this decree is still in force and effect except modified to the extent of eliminating support.

In the divorce action it appears from an exemplified copy of the complaint the husband alleged, without specification of any facts, the ground of 'cruel and abusive treatment' toward him, but there is no ground of 'violent and ungovernable temper' alleged, as averred in her answer in this case. The record, in addition to a copy of his complaint for divorce, includes an exemplified copy of the docket sheet of that cause, showing that the complaint was filed on February 1, 1947, and the defendant answered March 20th following (other entries unnecessary to the disposition of this cause omitted), and thereafter under date of May 6th appears the entry 'libel dismissed after hearing.' There is no copy of her answer in that cause, no transcript of evidence in either of the causes, nor any copy of the judgment entered by the Court in the divorce action. The only evidence, if it may be so termed, that judgment was entered, is the aforesaid notation on the docket sheet 'libel dismissed after hearing.' Such docket entry in legal terminology does not connote a dismissal of the cause with prejudice, as alleged in her answer. In his amendment to his complaint, as above noted, the plaintiff charged habitual indulgence in violent and ungovernable temper and not cruel and abusive treatment as charged in his complaint in the Massachusetts Court, and since there is no transcript of the evidence, it may not be assumed that the facts proved in evidence in that cause are the same as those charged in the plaintiff's bill of complaint; however, in his bill of particulars to the complaint, the plaintiff admits that some, but not all, of the evidence he would introduce in the cause, was 'presented before the Probate Court' in...