Diem v. Diem

Citation141 Fla. 260,193 So. 65
PartiesDIEM v. DIEM.
Decision Date05 January 1940
CourtUnited States State Supreme Court of Florida

Rehearing Denied Jan. 25, 1940.

Divorce proceeding by Albert Diem against Erma Diem. From a judgment of divorce, defendant appeals, and plaintiff files cross-assignments of error.

Affirmed. Appeal from Circuit Court, Volusia County; H B. Frederick, judge.

COUNSEL

Joseph Ginsberg, of Daytona Beach, and Scarlett & Futch, of De Land for appellant.

Francis P. Whitehair and Hull, Landis & Whitehair, all of De Land for appellee.

OPINION

TERRELL Chief Justice.

Appellant and appellee were married in October, 1929, and lived together as man and wife until November, 1934. A former suit for divorce by appellee having been dismissed without prejudice, this suit was instituted by him in December, 1936 and the final decree was entered in January, 1939. The defendant appealed and the plaintiff filed cross assignments of error. It is the usual case in which an old man possessed of a sizable wad of filthy lucre got messed up with a young woman and, as usual, the old man's wad caused trouble.

Appellant contends that since extreme cruelty is the sole ground relied on for divorce, the final decree should be reversed because the bill of complaint fails to allege that any of the acts relied on to constitute extreme cruelty were done with the deliberate intent to inflict pain and suffering, that none of them were cruel per se, and that none of them were continued and of such ruthless character as to prevent the injured spouse from performing his marital duty.

It is quite true that in the criminal law, intent is an important element and must be shown, but the statute granting a divorce on the ground of extreme cruelty, Section 4983(4), Compiled General Laws of 1927, does not require the bill to allege or the evidence to show that the acts of defendant were done with a deliberate intent to cause mental pain and suffering to the complainant. If it alleges a course of conduct that is shown to have met the terms of the Statute, that is sufficient.

The bill of complaint in this case alleges such a course of conduct on the part of defendant. The evidence in support of the allegations of the bill is conflicting but it was all taken by the chancellor and he found it to be sufficient. He found appellee to be a mild mannered gentleman, a kind, faithful, and indulgent husband. He found appellant to be hyper sensitive, self-centered, and petulant, and guilty of directing her emotional outbursts and sudden tantrums toward appellee frequently and without provocation. Indeed, the major portion of their married life appears to have been frequently by domestic squalls that sometimes reached cyclone proportions.

Extreme cruelty as ground for divorce is relative. What constitutes it may be determined by the degree of one's culture, his emotions, nervous reaction or moral sense. It may also be tested by acts or social conduct to which the spouse affected is allergic. The rapid change in social conventions may generate conditions that bring on extreme cruelty. One spouse may indulge a hibit to which the other is allergic that would be extremely painful, depending on the nature of the affected spouse. A wife that chews tobacco may strain the connubial relation and the husband that dips snuff may do likewise. Any habitual indulgence on the part of one spouse that causes mental torture, undermines the health, or tends to dethrone the reason of the other, is sufficient to constitute extreme cruelty as ground for divorce.

From all the record discloses, the parties to this cause were so far at variance in age, emotions, aspirations, and outlook that there was no common ground on which their differences could be fused. The hymeneal vow counted for nought. They reached the point that everything the one did irritated the other, both wound up in the hospital, they annoyed each other to distraction talking about their ailments, and when this appeal was taken, she had been treated by twelve different doctors.

But this often happens when an old man plunges into the matrimonial pool with a young woman. They are the product of different cultures and experience teaches that their natures do not always fuse easily. He lives in the past; she lives in the future. She chews gum while he smokes his pipe. At the table, she calls for calories and vitamins; while he calls for hog and hominy. She likes rag time but he prefers 'In...

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