Chisholm v. Chisholm

• Decision Date: 31 December 1929
• Parties: CHISHOLM v. CHISHOLM.
• Court: Florida Supreme Court

125 So. 694

98 Fla. 1196

CHISHOLM v. CHISHOLM.

Florida Supreme Court

December 31, 1929

Commissioners' Decision.

Suit for divorce by Marjorie Chisholm against Frederic G Chisholm. From an order denying defendant's motion to set aside a decree of divorce granted to plaintiff, defendant appeals.

Reversed.

Syllabus by the Court

SYLLABUS

Delay in moving to vacate judgment will not usually bar right thereto, if parties had no notice of judgment and no rights of innocent parties intervened. Delay in moving to have a judgment vacated, so long as the party had no notice of the judgment and no rights of innocent third parties have intervened, will not usually bar his right to the relief prayed for.

Ordinarily lapse of time will not affect right to vacate decree for lack of court's jurisdiction; if party knows judgment against him is merely voidable, he must exercise reasonable diligence in procuring its vacation; generally judgment absolutely void can be set aside at any time. Ordinarily lapse of time will not affect the right to vacate a decree on the ground that the court never had the jurisdiction to enter it, but, if a party actually knows that a judgment rendered against him is not simply void, but merely voidable, he must exercise reasonable diligence in procuring its vacation. A judgment absolutely void can as a general rule be set aside at any time.

Final decree obtained on false allegations of jurisdictional facts and decree pro confesso on which based, may be vacated if defendant is free from laches. Where the jurisdiction of a court of equity has been wrongfully invoked and a final decree obtained upon false allegations of jurisdictional facts, the defendant, being free from laches, may obtain relief by way of motion to vacate such final decree and the decree pro confesso upon which it was based.

Defendant to secure relief by motion to vacate decree, must show deceit, surprise, or irregularity, reasonable diligence, and meritorious defense. Without the existence of strong and unavoidable circumstances excusing such neglect and laches the decree should not be opened. Such power should not be exercised upon a mere desire to let in a defense upon the merits. The facts established must show deceit, surprise, or irregularity in obtaining the decree; that the defendant has acted bona fide, and with reasonable diligence, and has a meritorious defense; and the facts constituting such defense must distinctly and satisfactorily appear, and the proposed answer should be exhibited.

After replication, complaint should not be amended by adding new facts or grounds except by leave of court on motion and cause shown after notice to adversary; where amendment is allowed after answer is filed, defendant must file new answer before next rule day unless further time is allowed by court (Chancery Rules 59, 61). After replication, a bill of complaint should not be amended by adding new facts or grounds except by leave of the court upon motion and cause shown after due notice to the adverse party; and, where an amendment is allowed after answer filed, the defendant is required to file a new or supplemental answer on or before the next rule day, unless further time is allowed by the court, and, upon defendant's default, like proceedings may be had as in cases of omission to put in an answer.

Failure to establish complainant's actual two years' residence in state, except in case of adultery, and sufficient allegation of statutory grounds, may be sufficient to set aside divorce decree (Comp. Gen. Laws 1927, §§ 4981 4983). There are at least two jurisdictional issues in suits for divorce: (1) Two years' actual residence of the complainant in the state of Florida (when not based upon ground of adultery); and (2) a sufficient allegation of the statutory 'grounds' for divorce. The absence of the establishment of either may be sufficient grounds to set aside a decree.

'Residence' required of complainant in divorce suit means legal residence, place of domicile, or permanent abode (Comp. Gen Laws 1927, § 4981). Two years' residence required of a complainant in suit for divorce means a legal residence, a place of domicile, or permanent abode; a place which complainant makes the chief seat of his household affairs or home interests. [Ed. Note.--For other definitions, see Words and Phrases, First, Second, and Third Series, Residence.]

Presumption is that father establishes domicile or residence of minor children, in absence of anything to contrary; female minor from another state may become 'resident' of state within divorce statute, on marriage to resident (Comp. Gen. Laws 1927, § 4981). The legal presumption is that the father establishes the domicile or residence of his minor children, in the absence of anything to the contrary; and a female minor child from another state may become a 'resident' of Florida upon her marriage to a man whose legal residence is in this state.

After divorce decree is entered, defective allegations of bill not demurred to, when not jurisdictional, may be disregarded, if essential facts appear and evidence fully sustains them. After a decree of divorce has been entered, defects in the allegations of the bill not demurred to, when not jurisdictional, may be desregarded, if all the essential facts appear and the evidence fully sustains them.

Statutory residence requirement of complainant in divorce suit, except in adultery case, is jurisdictional, and must be alleged and proved; admission in pleadings of requisite residence of complainant in divorce suit is ineffectual as substitute for proof (Comp. Gen. Laws 1927, § 4981). The prerequisite two years' residence in this state of the complainant in a suit for divorce, except when the cause is based upon adultery of defendant, is jurisdictional, and must be both alleged in the bill and established by proof, and an admission thereof by the parties in their pleadings is ineffectual as a substitute for proof, and it is not an instance in which facts going to the jurisdiction may be effectually admitted by the parties.

Admissions of parties to divorce suit, even by way of decree pro confesso, amount to little, but proof of allegations of complaint must be made. The state being a party in interest in all divorce suits, and the public welfare and morals being involved, admissions of the parties therein, even by way of decree pro confesso, amount to but little. Proof of the allegations of the bill must be made.

Even if defendant in divorce suit fails to appear, courts must proceed with same formality as if he were present and maintained keenest opposition. Even if the defendant in divorce proceedings fails to appear, the courts are nevertheless bound to proceed with the same formality as if such defendant were present and maintained the keenest opposition.

Proof to sustain allegation of complainant's residence must show bona fide residence in state for two years next preceding date of filing divorce suit (Comp. Gen. Laws 1927, § 4981). While it may be sufficient to allege the residence of complainant substantially in the language of the statute, the proof to sustain such allegation must show that complainant has resided bona fide in this state for the two years next preceding the date of filing suit.

Asking leading questions in ex parte divorce proceedings in way that may be answered 'Yes' or 'No' to cover statutory phraseology, especially on jurisdictional issue, is improper. The asking of leading questions in ex parte divorce proceedings before a master, in a way that may be answered by 'Yes' or 'No' or their equivalent, to cover statutory phraseology, especially upon a jurisdictional issue in the case, is improper, as a decree of divorce should not be granted upon 'admissions' but upon the sufficiency of the testimony of those testifying.

Amendment of divorce complaint by abandoning first ground and substituting another constitutes complete change in cause of action. Where complainant amends his bill of complaint by abandoning the first ground of divorce and substitutes another, there is in effect a complete change in the cause of action, and should be disposed of accordingly.

What constitutes sufficient cause for divorce is matter of law; court should refuse divorce unless satisfied of sufficiency of grounds alleged in bill and truth of evidence establishing said grounds (Comp. Gen. Laws 1927, § 4983). What shall be deemed sufficient 'cause' or grounds for divorce is always a matter of law, and the court should refuse a divorce unless satisfied of the sufficiency of the grounds of divorce alleged in the bill and the truth of the evidence to establish the grounds alleged.

Extreme 'suffering' is not ground for divorce, and is not analogous to extreme 'cruelty' (Comp. Gen. Laws 1927, § 4983). Extreme 'suffering' is not a ground for divorce in this state, and the term is not analogous to extreme 'cruelty,' which applies only to the actor or agency, while 'suffering' signifies merely the bearing of pain. [Ed. Note.--For other definitions, see Words and Phrases, First, Second, and Third Series, Cruelty; Suffer.]

Appellate court notes fundamental error in divorce bill not charging essential elements of any statutory ground, though there is no valid demurrer (Comp. Gen. Laws 1927, § 4983). Where a bill for divorce is fundamentally insufficient, in that it does not charge the essential elements of any ground for divorce recognized by our statutes, this court will take note of such fundamental error as one going to the validity of the final decree, rendition of which is assigned as error although there was no valid demurrer pointing out such defect in the bill, public policy requiring that no divorce be granted except upon grounds designated by statute....