Chisholm v. Chisholm

• Citation: 141 So. 302,105 Fla. 402
• Parties: CHISHOLM v. CHISHOLM.
• Decision Date: 03 May 1932
• Court: Florida Supreme Court

141 So. 302

105 Fla. 402

CHISHOLM v. CHISHOLM.

Florida Supreme Court

May 3, 1932

En Banc.

Suit by Marjorie Chisholm against Frederick G. Chisholm. Judgment for complainant, and defendant appeals.

Affirmed. Appeal from Circuit Court, Brevard County; W W. Wright, judge.

COUNSEL

Eugene M. Schwarzenberg, of New York City, for appellant.

George P. Garrett, of Orlando, for appellee.

OPINION

ELLIS J.

Frederick Chisholm appealed from a decree of divorce obtained by his wife in Brevard county on June 4, 1930.

Appellant contends that the complainant failed to show proof of a legal residence in Florida for two years next preceding the institution of her suit. This bill was filed January 29 1930, and the ground alleged was desertion, willful obstinate, and continuous for one year. It is also contended that the evidence does not establish such ground, that there can be no desertion of complainant pending a prior suit for divorce by her; that the complainant was living with another man as his wife during the period of alleged desertion by the defendant, therefore it cannot be said that his absence was desertion of his wife; and that the chancellor committed reversible error in not reopening the case to permit the defendant to introduce in evidence the 'judgment roll of the former trial.' The latter point relates to the first suit by Mrs. Chisholm in which the decree was held to be void for lack of jurisdiction because of complainant's lack of two years' residence in Florida. Chisholm v Chisholm, 98 Fla. 1196, 125 So. 694.

In the first proceeding, the final decree was entered December 6, 1926. The judgment of this court holding the decree to be void was filed December 31, 1929. Mrs. Chisholm married again within six months after the date of the decree of divorce. There is some confusion in the record about the date. She said it was March, 1926, which was impossible if the marriage occurred after the decree of divorce in December, 1926. She married her solicitor, Mr. Watts, while the appeal from the decree was pending in this court. She lived with her second husband about three months, and obtained a divorce from him. It does not appear when that proceeding began and terminated nor whether it was a divorce upon some statutory ground or whether it was a proceeding for an annullment of the so-called marriage. Neither party nor their solicitors appear to have been interested in the point. In any event, the separation occurred before the decision of this court in the Chisholm Case, supra, was rendered.

Assuming that such conduct of Mrs. Chisholm may technically be regarded as bigamy, there is no suggestion of immorality in her conduct, and she quickly relieved herself of the undesirable situation, presumably upon discovering the questionable legality of it, and then, when free from it, brought the present suit within a month after the decision of this court was rendered.

Counsel for appellant refer to the first decree as having been obtained by fraud perpetrated upon the court by Mrs. Chisholm. We do not regard her conduct nor her testimony as properly to be described by that term in its offensive or worse sense, nor did this court so characterize it. The decree was merely declared to be void because the jurisdictional fact of two years' residence was held to be not established, and that material fact could not be established by the complainant alone, that there was not sufficient corroborating evidence.

While it was highly imprudent for her to marry again while the appeal was pending, she doubtless relied upon the opinion of her counsel, whom she married, and whose importunity probably outweighed his legal acumen, and there was therefore nothing of a meretricious character in her act so far as the moral aspect of it is involved.

We do not regard her act, therefore, as constituting adultery such as would preclude her from maintaining a suit for divorce upon statutory grounds against her husband whose status as such is purely technical, depending upon the legally insufficient proof of the wife's legal residence in Florida for the requisite two years next before beginning her suit. Whatever of technically adulterous conduct the wife may have been guilty by her marriage and cohabitation with Watts pending the appeal, there is present the element of her husband's continuous misconduct amounting to abandonment and desertion of his wife, his failure to provide a home for them, or to supply her with funds to maintain herself, and leaving her for a long period of time without means of support.

In the case of Moore v. Moore, 102 Tenn. 148, 52 S.W. 778, it was held that, where a husband leaves his wife even for just cause, but makes no provision for her, thereby leaving her without means of support, he is not entitled to a divorce on the ground of adultery committed after the separation. There seemed, however, to be a statutory ground for that view.

It has also been held that, when a husband willfully deserts his wife whom he had seduced before the marriage, he thereby conduces to adultery thereafter committed by her. Moss v. Moss, 2 Ired. (24 N. C.) 55; Tew v. Tew, 80 N.C. 316, 30 Am. Rep. 84. That state, however, in later years seems to have reversed its former position. Other states hold to the more reasonable and perhaps sounder doctrine that, when one party commits an act affording grounds for divorce against the other, the court will not grant the prayer of such an one for divorce from the other. Wilson v. Wilson, 89 Neb. 749, 132 N.W. 401; Church v. Church, 16 R.I. 667, 19 A. 244, 7 L. R. A. 385.

In the two North Carolina cases cited above, however, the same reason lies behind the decision; in the former behind the statute on which the decision rests. That doctrine is: A marriage may not be dissolved at the instance of the party to whom default in any of the essential duties of married life is fairly imputable. When, therefore, a divorce is sought for a cause supervening separation, it must be inquired whether that cause probably grew out of the separation and whether the separation was the act, and...