Colby v. Colby, 1379

• Decision Date: 20 May 1960
• Docket Number: No. 1379,1379
• Citation: 120 So.2d 797
• Parties: Benjamin COLBY, Appellant, v. Sarah P. COLBY, sometimes known as Sarah P. Appleby, and Scott Appleby, Appellees.
• Court: Florida District Court of Appeals

Page 797

120 So.2d 797

Benjamin COLBY, Appellant, v. Sarah P. COLBY, sometimes known as Sarah P. Appleby, and Scott Appleby, Appellees.

No. 1379.

District Court of Appeal of Florida, Second District.

May 20, 1960.

Mabry, Reaves, Carlton, Fields & Ward, Tampa, for appellant.

Dart & Bell, Sarasota, for appellees.

KANNER, Judge.

The circuit court of Sarasota County entered a final decree dismissing the amended complaint of Benjamin Colby, hereinafter referred to as 'Colby', he having declined to further amend. Colby has appealed from that decree, urging that the amended complaint is adequate of entitle him to the relief sought under the declaratory decree act which he has invoked, Chapter 87, Florida Statutes, F.S.A.; and likewise that, independent of the declaratory statute, his complaint justifies equitable relief.

According to the factual environment of this dispute as revealed in the amended complaint, the plaintiff, Colby, is a resident and citizen of Maryland; while the defendant, Sarah P. Colby, otherwise known as Sarah P. Appleby, hereinafter referred to as 'Sarah', is legally also a resident of Maryland now residing in Sarasota, Florida, and the defendant, Scott B. Appleby, hereinafter referred to as 'Appleby', formerly a resident of Washington, D. C., is now a resident of Florida. Further averments of the amended complaint are that Appleby and Sarah claim to be husband and wife and are living together as such; that Colby and Sarah were husband and wife and that Sarah, in 1955, secured a Nevada divorce decree which is invalid because of lack of jurisdiction, since neither Sarah nor Colby was a resident of Nevada and since Colby was not served with process in Nevada, nor did he appear in the suit; that Colby subsequently attacked the Nevada divorce decree in a Maryland suit which resulted in a decree declaring the Nevada decree to beinvalid for lack of jurisdiction and granting Colby a divorce a mensa et thoro because of abandonment by Sarah; that Sarah was served with process and defendant the Maryland suit on the basis that the marriage relationship had been terminated through the Nevada divorce decree and, therefore, the Maryland court had no jurisdiction to grant the divorce sought by Colby; that the Court of Appeals for the State of Maryland, upon appeal by Sarah, affirmed the lower court via the case of Colby v. Colby, 1958, 217 Md. 35, 141 A.2d 506; that during the pendency of the Maryland suit, Sarah and Appleby went through a marriage ceremony in Nevada, illegal for the reason that the Nevada decree of divorce was void.

The complaint asserts that Sarah and Appleby, by living together as husband and wife, are necessarily denying that Colby and Sarah are husband and wife; and that the status of Appleby and Sarah as purported husband and wife is inconsistent with the husband and wife relationship of Colby and Sarah. It is stated that, in effect, there exists a controversy between the parties as to marital status as a result of the relationship between Sarah and Appleby.

Colby alleges that, following the adverse Maryland decree, Sarah and Appleby fled from Maryland to Massachusetts; that litigation was there instituted by Colby for similar relief as sought here and is still pending; and that after being served in the Massachusetts suit, they moved to Florida.

It is also averred that the Maryland decree provided that each of the parties should live chastely during their separation and that the custody of the then minor children was given to Sarah. Colby complains that Sarah has disregarded the Maryland decree and has continued to live in a bigamous relationship with Appleby and thus has created a bad influence upon the eighteen year old daughter of Sarah and Colby, and further, that Sarah and Appleby have prejudiced this daughter against Colby. Stating that he did not believe Sarah is consciously leading a bigamous life, Colby alleged that she has been victimized by Appleby and that she continues to be deceived as to the validity of the Nevada decree of divorce. Additionally, there are claimed property rights involved; these will be considered later in this opinion.

Colby then prayed that the court accord full faith and credit to the Maryland decree and that such decree be established and enforced in all respects as a Florida court decree; or in the alternative that the court enter its own decree declaring that Colby and Sarah are husband and wife, that Sarah and Appleby be restrained from holding themselves out as husband and wife and from living together in that relationship, and also that Sarah be enjoined from using the name, Appleby, or any married name other than that of Colby.

A motion to dismiss was directed against the amended complaint. Several grounds were stated, among which it was asserted that a cause of action is not stated against Sarah or Appleby or either of them, and that no property rights are involved and that the relief sought is not such as could be properly granted under the declaratory act, or for any reason or cause by any Florida court.

In analyzing Colby's assertion that he is entitled to invoke the declaratory decree statute, we see that the pith of his action is to obtain a declaration of the marital status in Florida of himself and Sarah. The object of the declaratory act is to settle and to afford relief from insecurity and uncertainty with respect to rights, status, and other equitable or legal relations. Section 87.11, Florida Statutes, F.S.A.; and 9 Fla.Jur., Declaratory Actions, section 5, pp. 549-550. There must be a bona fide dispute between the adversaries as to a present justiciable question. Bryant v. Gray, Fla.1954, 70 So.2d 581; and Local No. 234, etc. v. Henley & Beckwith, Inc., Fla.1953, 66 So.2d 818. The test to activate jurisdiction under the act is whether or not the moving party shows that he is in doubt as to the existence or non-existence of some right, status, immunity, power, or privilege. Ready v. Safeway Rock Co., 1946, 157 Fla. 27, 24 So.2d 808. Nor can the act be invoked by a mere colorable dispute to obtain the opinion of the court upon a question of law where, in fact, there is no real controversy. Lieber v. Lieber, Fla.1949, 40 So.2d 111. Thus it is seen that the dispute must be justiciable in the sense that it is based upon some definite and concrete assertions of right, the contest thereof involving the legal or equitable relations of parties having adverse interests with respect to which the declaration is sought.

Colby predicates his right to relief upon the Maryland decree, contending that a justiciable controversy exists as to his marital status due to Sarah's relationship with Appleby and because of her allegedly erroneous belief in the efficacy of the void Nevada decree. He is making no attack here upon the validity of any decree. Instead, he subscribes to the fact that the Maryland decree is in all respects valid, raising no question as to doubt or uncertainty regarding any aspect of the Maryland decree of itself. His grievance is that after the Nevada divorce decree, sarah married Appleby in Nevada before the rendition of the Maryland decree and afterwards continued living with him, for a time in Massachusetts and presently in Florida.

We have just indicated, essentially, principles required in order for one to invoke the declaratory decree act and have also indicated the basis upon which Colby relies to fulfill the test necessary to bring him within the scope of the statute. However, in addition to the principles already set forth, there is a further important aspect which must be considered, due to the contents of the amended complaint and the relief sought. That aspect is that a purpose of statutes affording declaratory relief is to adjudicate the rights of parties who have not theretofore had those rights determined. Travelers Ins. Co. v. Wechsler, 1940, 34 F.Supp. 721, and Phelps County v. City of Holdrege, 1937, 133 Neb. 139, 274 N.W. 483. For domestic relations cases holding that a declaratory judgment as to marital status is unnecessary and is precluded by a prior judgment determining such status, see Leitman v. Leitman, 1954, 284 App.Div. 959, 135 N.Y.S.2d 518; Metlis v. Metlis, Sup.1951, 104 N.Y.S.2d 407; Pignatelli v. Pignatelli, 1938, 169 Misc. 534, 8 N.Y.S.2d 10; Pantelides v....