Erdmans v. Erdmans

• Decision Date: 18 December 1925
• Citation: 90 Fla. 858,107 So. 188
• Parties: ERDMANS v. ERDMANS.
• Court: Florida Supreme Court

107 So. 188

90 Fla. 858

ERDMANS v. ERDMANS.

Florida Supreme Court

December 18, 1925

En Banc.

Suit by Hattie Erdmans against R. M. Erdmans, her husband, for maintenance, attorney's fees, injunction, and writ of ne exeat. From a decree denying leave to complainant to file a supplemental bill for an increase in the allowance of alimony and attorney's fees, and reinstating a final decree previously entered, and increasing alimony to be paid by defendant, and directing payment of fees to complainant's counsel, complainant appeals.

Affirmed.

Syllabus by the Court

SYLLABUS

Complaint by wife against husband for maintenance, showing that both parties had resided in state more than 2 years next preceding filing of bill, sufficiently showed 2 years' residence by husband prerequisite to his cross-complaint for divorce. Where it appears in a bill of complaint by the wife against her husband for maintenance that both she and her husband had resided in the state of Florida for more than 2 years next preceding the filing of the bill, and the husband personally appears to such proceedings, and exhibits his cross-bill against his wife, and prays for divorce, the jurisdictional prerequisite as to the cross-complainant's residence in the state of Florida for 2 years next preceding the filing of his cross-bill sufficiently appears.

Extreme cruelty may be shown by continued, persistent abuse by one spouse of other's parents, and false accusations of illicit sexual relations with a brother or sister. Extreme cruelty as a ground for divorce may be shown by the continued, persistent abuse by one spouse of the parents of the other, and false accusations of illicit sexual intercourse between that other and a brother or sister.

Appeal from Circuit Court, Dade County; H. F Atkinson, judge.

COUNSEL

Bart A. Riley, of Miami, for appellant

Price Price & Neeley, of Miami, for appellee.

OPINION

ELLIS J.

In January, 1923, the appellant exhibited her bill in chancery against the appellee for 'maintenance temporarily during the pendency of this suit,' attorney's fees, injunction to restrain the defendant from disposing of his property, and a writ of ne exeat. There was a clause following the prayer for subpoena that may be treated as a prayer for general relief.

During that month the court made an order requiring the defendant to pay to the complainant $25 each week until the further order of the court, and to pay her attorneys $200.

The defendant answered in February following. The cause was referred to a special master to take testimony.

In May of that year the defendant filed a cross-bill and prayed for a divorce. Mrs. Erdmans not answering nor demurring to that cross-bill, a decree pro confesso was entered against her. The cross-bill contained no allegation that the cross-complainant had resided in the state of Florida for 2 years next preceding the filing of the bill. Another and different person as special master was appointed to take testimony in the cross-suit.

In October the special master in the cross-suit submitted his report.

Nineteen days before the special master submitted his report of the testimony in the cross-suit the chancellor made and entered his final decree in that cause dissolving the bonds of matrimony existing between R. M. Erdmans and his wife, Hattie, and requiring Mr. Erdmans to pay her as alimony $1,300 annually, in weekly installments of $25, to be used by Mrs. Erdmans for the support of herself and the daughter, Lucille, who was about 13 years of age. The decree recited that Mr. Erdmans had already provided his wife with a suitable residence in the city of Miami, and that Mr. Erdmans should 'protect and save the said home from any and all liens then existing against the same.' The custody of Lucille was awarded to Mrs. Erdmans.

During the same month Mrs. Erdmans filed her petition for a rehearing, and on November 23d she filed an answer and demurrer to the cross-bill of complaint. This answer contains the allegation that both Mr. and Mrs. Erdmans have been residents of the state of Florida for more than 2 years last past. The answer denies the allegations of cruelty and ungovernable temper which are made the grounds for the cross-complainant's cross-bill for divorce, and concludes with a prayer for a reasonable allowance for attorney's fees, court costs, and alimony.

The chancellor granted the petition for rehearing, and set aside the decree pro confesso and final decree, and the cause was referred to the special master in chancery 'heretofore appointed' to take testimony.

In March, 1924, the special master first appointed appears as counsel for the complainant, Hattie Erdmans.

In May 1924, the complainant and cross-defendant, Hattie Erdmans, filed her petition for leave to file a...