Coleman v. Coleman

• Decision Date: 31 May 1946
• Citation: 157 Fla. 515,26 So.2d 445
• Parties: COLEMAN v. COLEMAN.
• Court: Florida Supreme Court

26 So.2d 445

157 Fla. 515

COLEMAN v. COLEMAN.

Florida Supreme Court

May 31, 1946

Rehearing Denied June 21, 1946.

Appeal from Circuit Court, Dade County; Marshall C wiseheart, judge.

George C Simpson, of Miami, for appellant.

Henry K Gibson, of Miami, for appellee.

CHAPMAN, Chief Justice.

The appellant Francis F. Coleman, filed in the Circuit Court of Dade County, Florida, a bill of complaint seeking a divorce against his wife, Rose Marcella Coleman, on the grounds (a) extreme cruelty; (b) desertion; and (c) by an amendment to the original bill the wife was charged with the habitual indulgence in a violent and ungovernable temper. The parties were married in 1925 at Cincinnati, Ohio, where they lived together when the husband, on December 1, 1942, because of the wife's alleged conduct, withdrew cohabitation and on August 1, 1944, became a resident of Miami, Dade County, Florida.

The defendant below (appellee here) by an appropriate answer to the bill of complaint and amendment denied (a) the charge of desertion; (b) the charge of extreme cruelty; and (c) alleged that on March 20, 1943, she filed in the Court of Common Pleas of Hamilton County, Ohio, a petition against her husband (appellant here) in which she alleged that the husband had deserted and abandoned her without cause and prayed for an award of alimony for her support and maintenance and an allowance for the support of their minor son about eleven years of age.

The defendant husband in the Ohio suit answered the petition and by cross petition alleged that the wife (appellee here) had violated her marital duties and had been guilty of gross neglect of duty and extreme cruelty and in the same pleading prayed for a divorce and the custody of their child. On December 18, 1944, the issues were joined, witnesses adduced and testimony heard, and the Court then decided the several issues in favor of the wife and against the husband and entered a decree and judgment finding, among other things, that the cross-plaintiff husband had violated his marital duties and had been guilty of wrong doing toward his wife and ordered the husband to pay a named sum monthly to the wife; that said adjudication by the Court of Common Pleas of Hamilton County, Ohio, put at rest and repose all matters and things alleged in the bill of complaint and amendment, and in law constitutes res adjudicata. Copies of the pleadings filed in the Ohio Court between the parties were attached to and made a part of the answer of the wife.

An order of reference was made and entered with the direction that the Special Master take all the testimony offered by the parties and to make findings and recommendations as to an appropriate decree. The Special Master held that the plaintiff had sustained the allegations of the bill of complaint and the amendment thereto and that the husband be granted a divorce. It was his conclusion that the Ohio Court had adjudicated the charge of gross neglect of duty and extreme cruelty, but not the charge of habitual indulgence by the wife in a violent and ungovernable temper prior to the date of separation on December 1, 1942.

Exceptions were filed to the Special Master's Report on the grounds (1) the testimony failed to establish extreme cruelty since August 14, 1943; (2) the facts establishing extreme cruelty since August 14, 1943 are immaterial; (3) the Special Master erred in finding that the defendant wife had been guilty of habitual indulgence in a violent and ungovernable temper toward her husband; (4) that the issue of a violent and ungovernable temper was res adjudicata as appears by the record; (5) The Special Master disregarded and failed to recognize the decree of the Court of Common Pleas of Hamilton County, Ohio, dated December 18, 1944, between the parties and to give it full faith and credit to which it was entitled under Section 1 of Article 4 of the Federal Constitution. The Chancellor below sustained the exceptions and dismissed the suit, and plaintiff appealed.

The residence of the plaintiff in Florida for a period of ninety days, or more, prior to filing the suit is established by the testimony of the plaintiff and a Mrs. Spears. Plaintiff Coleman testified that his wife would get mad and 'fly off the handle' at things he had nothing to do with and frequently about things occurring in his absence and on his return home she would take her spite out on him; that she would abuse, curse and berate him and keep him awake at all hours of the night. 'She just kept it up and kept it up--I never argued back with her'. 'Her pet names for me for about twenty years ranged from a 'damn fool' to a '___ ___ _____."

He testified that she failed to discharge her duties as a wife in that she failed to assist his mother in the preparation of the family meals; she slept late in the morning--often as late as noon; she went out in the evenings without her husband and sometimes stayed over night without giving an explanation of her whereabouts. She nagged the plaintiff continuously and frequented bingo games and gambled on horse races. She had fits of anger and called plaintiff vile and unspeakable names. On one of these occasions she took an alarm clock--the nearest thing to her--and threw it at plaintiff's head. She threatened to shoot plaintiff on many occasions.

The plaintiff by profession was a pharmacist and employed in his father's drug store. She went to the store where plaintiff was employed and engaged in heated arguments with him. She went through plaintiff's personal mail and that of his employer. When plaintiff objected to her activities, she resorted to profanity and called him insulting names in the presence of others. She continued to nag and pester the plaintiff and continuously interfered with the duties of his employment. She failed to keep house and plaintiff testified that 'if there was any cooking to be done I had to do it and I had to do all the cleaning'. Her conduct and attitude toward plaintiff continuously from the time of marriage until he left Ohio in August, 1944, affected his nerves and health and rendered life burdensome and intolerable. He testified, 'it was just impossible to live with her.'

The testimony of plaintiff's father and mother was taken by deposition and appears in the record. The plaintiff was employed during most of his married life as a pharmacist in his father's drug store. The parties after marriage moved into an apartment but later moved into the home with his father and mother. Their testimony corroborates that of their son on many important points, and in fact, is not disputed...