Engebretsen v. Engebretsen

• Decision Date: 24 March 1942
• Citation: 151 Fla. 372,11 So.2d 322
• Parties: ENGEBRETSEN v. ENGEBRETSEN.
• Court: Florida Supreme Court

11 So.2d 322

151 Fla. 372

ENGEBRETSEN v. ENGEBRETSEN.

Florida Supreme Court

March 24, 1942

On Rehearing Dec. 18, 1942.

Appeal from Circuit Court, Martin County; Alto Adams Judge.

C. D Abbott, of West Palm Beach, for appellant.

Liddon & Fee, of Fort Pierce, and Arthur R. Clonts, of Stuart for appellee.

CHAPMAN, Justice.

From a final decree entered by the Circuit Court of Martin County, Florida granting plaintiff below a divorce on the ground of adultery and awarding to him the custody of their two children, ages eight and eleven, respectively, with the privilege of visitation to the mother, defendant below, an appeal has been perfected here. The plaintiff husband charged his wife with adultery and extreme cruelty, which by an appropriate answer the defendant wife denied. The wife defendant in a counter claim charged her husband with extreme cruelty, which was denied in an answer thereto. The Chancellor, on final hearing after hearing all the testimony concluded that the plaintiff below failed to establish his charge of extreme cruelty against the wife, and that the wife likewise failed to carry the burden of proof by establishing extreme cruelty on the part of the husband, and dismissed her counter claim. It is here contended that the evidence adduced by her in support of the charge of extreme cruelty on the part of the husband overwhelmingly sustains the said allegations thereof. It is necessary to examine the testimony to determine this controverted issue.

The testimony discloses that the plaintiff below, Toley Engebretsen, by birth is a Norwegian. His first wife died and left one child. On August 17, 1927, he married the appellant in Jacksonville, Florida. She, at the date of their marriage, was approximately 20 years of age, while her husband was about 28. He at the time was an employee of the Arundel Corporation and stationed at Salerno, a small community located three miles south of Stuart, in Martin County, Florida. The parties went to live some three miles in the country and west of Salerno. The appellant discharged the duties of a wife, inclusive of feeding, milking and caring for the cows, as well as chickens and ducks, and generously contributed her labor to the upkeep of the country home. The appellee's son by a former marriage was taken into the home and cared for by the appellant, as the appellee's employment took him from home during the day time.

It is not clear from the record that the appellant, in addition to her household duties, discharged the family weekly washing, but it is clear that in the early days of her married life but little, if any, help in the household duties was required or demanded by the wife or supplied by the husband. About one year after marriage a son was born. Her confinement resulted in the loss of only two or three days from household duties. This was her only illness at that time subsequent to her marriage. The plaintiff below resigned his position with the Arundel Corporation and immediately opened a small marine hardware business at Salerno. He ran also a repair business and did not return to his home for the noon meal. He was thrifty and industrious; carried out fishing parties, and owned and operated suitable fishing boats, which provided splendid revenues. It is shown that when this suit was filed he owned six or seven fishing boats and his daily income, frequently, was from $100 to $150 per day. They accumulated money and property rapidly.

The wife, appellant here, after her home duties were dispatched, would go from her home to Salerno and there work in the store, booking fishing parties, wait on trade and attend to other assignments incidental to the business, and would leave Salerno in the afternoon and return to her home, pen and milk the cows, feed the chickens and ducks and do other chores, and then prepare the evening meal for the family. The husband would continue his labors until dark, close the business and go home some three miles in the country. The husband studied aviation and learned to control a plane, and had an agency or some planes for sale about his business at Salerno. An apartment was constructed above the garage and the family moved from the country in about 1929 or 1930 to the apartment at Salerno. A long flight of steps lead from the ground to the home or apartment built over the garage. The wife continued all her household duties and in addition worked in the store and cared for a considerable portion of the trade about the business. The husband frequently would be away on fishing parties and customers at the business would call, ring a bell, and the appellant would cease her household duties and go to the store and accommodate them.

When the parties were struggling to get ahead in a financial way, they were happy and contented. Wealth, accumulations and prosperity, according to the wife, brought trouble, disagreements, personal clashes, violence, and ultimately the filing of this suit. She stated that her husband just couldn't accumulate money without it affecting his head. He often would become angry with some one about the place and would go upstairs and strike, beat and abuse her. When she was carrying her second child and two or three days prior to its birth, her husband threw her down the steep steps leading from the garage apartment and inflicted a blow or wound over the lower part of her breast bone. The attending physician testified about the tenderness at this point in her breast upon the birth of her child, and testified that some five or six years thereafter there was a tenderness in her breast near the same place, but he could not state whether it was chronic or not. The wife testified that she has suffered pain continuously since he threw her down the long flight of steps leading from the ground to their apartment. This is not contradicted.

The record shows violence to the wife by the husband, viz.: (1) In February or March, 1939, the husband beat her, knocked her down and threw her about the garage. Her eye was blacked and left a scar. (2) Shortly thereafter he accused her of meeting some one on the corner and beat her again. (3) On June 8, 1939, she attended with his approval, a beach party and on returning home the door was locked but she managed to gain admittance, when he beat and threw her down the apartment steps. (4) She went to Fort Pierce one night in December, 1939, and on her return he struck and beat her, knocked her down, applied unspeakable epithets, and one of the blows from his fist struck her in the mouth, knocking out a tooth and rendering her unconscious for a short time. He threatened to kill her. (5) The following night he assaulted her, threw a gun on her and threatened to shoot her; he threw her out of their home in the night time and would not let her re-enter; she slept in their truck in the garage during the night; the following morning she cooked breakfast, when he again cursed, abused and threatened her life. (6) He wanted her signature to get money on deposit in her name and when she refused, he cursed, threatened and abused her and drawing a pistol on her again threatened to kill her. (7) On December 13, 1939, he would not let her enter his home and she was forced to sleep in the truck in the garage under the apartment. (8) The next night she entered the home in the appellee's absence and went to bed and on his return he found her and drew a pistol on her and said: 'Didn't I tell you not to come in this house or I would kill you?' 'and he then opened the door and threw me out of the door down the long flight of steps and I fell on some boxes. He locked the door to his car and I could not get in it and had to sleep in the truck'. (9) While he had given her some money, she had left it in the home and he would not give it to her or let her stay in her home and she was locked out of her home and was without money. (10) She wanted to see her children and in going to see them he would meet her, curse and abuse her and pointed a gun at her and threatened to shoot her. (11) She went to see her children and appellee told her 'Didn't I tell you I was going to kill you if you ever put foot on this land again?' and she told him: 'I came here to see the children. He threw a shot gun on me and his oldest son beat me while his father held the gun on me. I ran and as I did he fired one shot at me.' (12) 'The appellant and his son caught me, threw me in a car and Ted Preston drove while they held and beat me, and DeLoach got in the car and they took me to jail at Stuart.' (13) 'Appellee beat me repeatedly while my stepson held me on the way from Salerno to Stuart, and he had a shot gun in the car near his hand while beating and taking me to jail; (14) he put me in jail at Stuart because I went to our home to see my children; (15) he tried to pull the rings off my fingers; he called me vile and vulgar name and spat in my face.' (16) They placed her in jail and while she was in a cell the appellee again cursed, abused, threatened to kill and called her vile and filthy names. (17) She was placed in jail without a warrant because she went to her home to see her children contrary to the views of her husband. (18) The husband weighed 180 pounds and, armed with a shot gun and aided by his son and two men, placed the appellant in a car and took and placed her in jail at Stuart. (19) Appellant went to Dr. Parker for treatment and he testified that on examination he found several blue spots on her body and limbs. (20) She complained of tenderness over the lower part of her breast bone and he bandaged her for the chest pain. (21) She was examined in September, 1940, by two doctors for a return of the chest pain. (22) She had had a continuous menstrual flow since the previous December, 1939; her body disclosed...