Fekany v. Fekany

• Decision Date: 12 March 1935
• Citation: 118 Fla. 698,160 So. 192
• Parties: FEKANY v. FEKANY.
• Court: Florida Supreme Court

160 So. 192

118 Fla. 698

FEKANY v. FEKANY.

Florida Supreme Court, Division B.

March 12, 1935

Suit by Olga Fekany against Louis Fekany. From the decree, defendant appeals and plaintiff cross-appeals.

Affirmed in part, and reversed in part. Appeal from Circuit Court, Orange County; Frank A. Smith, judge.

COUNSEL

Pleus, Williams & Pleus, of Orlando, for appellant.

Clark W. Jennings, of Orlando, for appellee.

OPINION

TERRELL Justice.

Complainant Olga Fekany, exhibited her bill of complaint in the circuit court of Orange county praying for divorce, the custody and care of the six children of herself and the defendant, Louis Fekany, temporary and permanent alimony, attorney's fees, injunction restraining the defendant from interfering with her or her property, confirmation of her right and title in and to certain property, and for general relief.

A general and a special demurrer to the bill of complaint were overruled, and defendant filed his answer in which he admitted the marriage and the birth of the children, but denied all the other material allegations of the bill. In the thirteenth and fourteenth paragraphs of his answer he sets up as affirmative matter of defense grounds for a divorce against complainant and a scheme on her part to defraud him of his property therein described. A demurrer to the ninth tenth, and thirteenth paragraphs of the answer was sustained but it was overruled as to the fourteenth paragraph. A special master was appointed, testimony was taken, and on final hearing the master found the evidence insufficient to grant the divorce, alimony, or attorney's fees, as prayed for by complainant, and that it was insufficient to grant the affirmative relief prayed for by defendant.

The complainant filed exceptions to the report of the master, but the chancellor overruled said exceptions and confirmed the master's report. The chancellor then entered his final decree in which he denied a divorce to both parties, and denied alimony to complainant, but awarded her attorney's fees and costs, and confirmed her title in and to certain lands more specifically described in the bill of complaint. From this final decree defendant appealed, and complainant filed crossassignments of error.

On the main appeal nine questions are argued, but they all turn on the sufficiency of the bill to state a cause of action for divorce, whether or not the bill is duplicitous or multifarious, and whether or not, on the grounds stated, the complainant should have been awarded costs and attorney's fees. On the cross-appeal three questions are argued, but they turn on the question of whether or not the chancellor erred in refusing to award the appellee a divorce and support for her children.

The challenge to the sufficiency of the bill of complaint is grounded on the charge that it sets up only isolated acts of cruelty, temperamental outbursts, and mistreatment on the part of the defendant to the complainant, none of which were habitual nor had they been so frequent as to cause mental anguish, pain, or suffering to the complainant, nor were they of such degree as to make the marital state an intolerable burden to her.

The divorce of complainant is sought on the ground of cruel and inhuman treatment and frequent indulgence in a violent and ungovernable temper. Adultery and later impotency are thrown in as an aggravating ground. It is, in substance, alleged that at various and sundry times throughout their married life complainant has been compelled to live in the house with defendant's father and mother and other relatives, that she was compelled by defendant to obey them and wait on them, that his mother cursed and abused her, that defendant abused her, struck her frequently, and called her and her mother opprobrious and vile names, denied her privileges and comforts that she was entitled to, cursed and slapped her at various and sundry times, and conspired with one named Homes to intimidate and compel her into giving up certain real estate belonging to her and described in the bill of complaint.

It is alleged that this course of conduct was indulged in for practically all their married life of nineteen years. True no specificact is alleged to have been committed from start to finish, but like the fox in the fable he had a bag full of tricks, exploiting first one and then the other to humiliate his wife. On the whole, the allegations and the proof show that the defendant was not only cruel and inhuman in the treatment of his wife, but had little or no appreciation for his marital duty and responsibility. His conduct toward her was reprehensible, and barely rises above that which is said to have prevailed among his remote forebears when they swung by their tails from limb to limb in the far reaches of the jungle enforcing a crude discipline by tooth and claw. He was just turned forty. It may be that his alleged impotency was an instance of condign punishment imposed to intercept the spread of his progeny. We are told that Ananias was struck dead for a lesser offense. It would be difficult to form a feminine concept clothed in the habiliments of civilization who would not be enraged at such course of treatment or whose marital state would not be rendered oppressive, humiliating, and an intolerable burden thereby. The bill of complaint met all the...