Clark v. Clark

Decision Date11 April 1947
Citation30 So.2d 170,158 Fla. 731
PartiesCLARK v. CLARK.
CourtFlorida Supreme Court

Rehearing Denied April 12, 1947.

Appeal from Circuit Court, Dade County; Ross Williams, Judge.

William J Pruitt and William F. Brown, Jr., both of Miami, for appellant.

Weintraub & Martin, of Miami, for appellee.

TERRELL, Justice.

In November 1946 appellee as complainant, filed a sworn bill of complaint praying for divorce from appellant as defendant, on the ground of extreme cruelty. The bill also prayed for custody of his minor child, Patricia Carol Clark, and for an accounting of moneys sent defendant while he was in military service. Summons in chancery was directed to defendant at 7616 N.W. 5th Court, Miami, and a copy thereof was left with her father November 17, 1945, at that address. On December 4 1945, decree pro confesso was entered against defendant for failure to plead, answer, or demur to the bill. A special master was appointed, testimony was taken and on January 14 1946, the chancellor entered a final decree, granting the divorce and awarding the custody of the minor child to complainant. A rehearing was denied and this appeal was prosecuted from the final decree.

Several questions are urged but we have reached the conclusion that the service on defendant was insufficient so nothing more than slight reference need be made to the other questions raised.

The bill of compaint alleges that complainant and defendant were married at Fort Lauderdale in October, 1932, and lived together until complainant enlisted in the Army in December 1942; that one child Patricia Carol Clark, was born to this union in May 1943; that soon after said child was born, complainant left for overseas duty in the European sector where he was stationed for two and one-half years; that complainant and defendant corresponded regularly during that time and complainant made defendant regular allotments from his compensation; that defendant lived with her mother, Mrs. John Walters, at 7616 5th Court, Miami, while complainant was in the foreign service; that when he was about to embark for home in October 1945, he wrote her two letters, advising the boat he was leaving on and when he expected to arrive in the United States.

Complainant arrived in New York November 2, 1945, and went at once to Camp Kilmer, from thence he went to Camp Blanding, where he was discharged November 8th, and from there he went immediately to Miami. He sent defendant a message from New York and one from Jacksonville, and when he arrived at Miami, he went at once to the home of his mother-in-law at 7616 N.W. 5th Court, where he expected to find defendant and his baby waiting for him, but ot his dismay, defendant had left about three days previous, leaving the baby with her mother, Mrs. Walters. He was advised by the latter that defendant left her home three days before to go to work and had not returned, but that she had sent a telegram from Jacksonville November 5th, as follows: 'Forgive waiting for him, but to his dismay, defendant later. Keep Tricia.' Defendant was next heard from in Seattle, Washington, by letter, marked 'General Delivery,' stating among other things, that she was on the move.

Complainant filed his bill for divorce November 16, 1945, which in addition to the foregoing, alleges that he has made diligent search for defendant but has not been able to locate her that he had no idea of her intention to desert him, and he gave her no cause for doing so. Under...

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6 cases
  • Shurman v. Atlantic Mortg. & Inv. Corp.
    • United States
    • United States State Supreme Court of Florida
    • September 6, 2001
    ...Fla. 496, 195 So. 145, 147 (1940); see also Klosenski v. Flaherty, 116 So.2d 767, 768 (Fla.1959) (quoting Heffernan); Clark v. Clark, 158 Fla. 731, 30 So.2d 170, 171 (1947) ("The purpose of constructive or substituted service is to bring knowledge of the pending litigation to the defendant ......
  • Valle v. Mador, 85-1075
    • United States
    • Court of Appeal of Florida (US)
    • November 5, 1985
    ...the person of the defendant and, by informing the defendant of pending litigation, signals him to defend his interests. Clark v. Clark, 158 Fla. 731, 30 So.2d 170 (1947); Conde v. Professional Mediquip, 436 So.2d 322 (Fla. 4th DCA 1983); Haney v. Olin Corp., 245 So.2d 671 (Fla. 4th DCA 1971......
  • Morrison v. Morrison
    • United States
    • United States State Supreme Court of Florida
    • April 25, 1947
  • Home Life Ins. Co. v. Regueira, 69--674
    • United States
    • Court of Appeal of Florida (US)
    • December 16, 1970
    ...Insurance Company v. Maddox (Fla.App.1970), 238 So.2d 154, 156.3 See, e.g., Lear v. Lear (Fla.1957), 95 So.2d 519; Clark v. Clark (1947), 158 Fla. 731, 30 So.2d 170; and State ex rel. Merritt v. Heffernan (Fla.1940), 142 Fla. 496, 195 So. 145.4 (Fla.App.1962), 135 So.2d 867, affirmed on cer......
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