Field v. Field

• Decision Date: 31 July 1953
• Citation: 68 So.2d 376
• Parties: FIELD v. FIELD.
• Court: Florida Supreme Court

Page 376

68 So.2d 376

FIELD v. FIELD.

Supreme Court of Florida, Division B.

July 31, 1953.

On Rehearing Nov. 6, 1953.

Rehearing Denied Dec. 10, 1953.

Loftin, Anderson, Scott, McCarthy & Preston, George F. Gilleland and Francis W. Sams, Miami, for appellant.

Redfearn & Ferrell, Miami, for appellee.

DREW, Justice.

George C. Field, Jr., appellee (hereafter called the husband), filed a complaint for divorce in the Circuit Court of Dade County against his wife, Florence Dill Field, appellant (hereafter called the wife), charging desertion. On receiving notice of the suit, the wife, then residing in New Jersey, through her New Jersey counsel, by letter, advised the presiding Judge of the Circuit Court of the Eleventh Judicial Circuit that the husband had been indicted in New Jersey for criminal desertion and assault and battery (on the wife) and that she (the wife) had obtained a judgment of separate maintenance in her favor in the New Jersey courts prior to the time the Florida action was filed and that the New Jersey Court had enjoined the husband from prosecuting his Florida action. On refusal of the Florida Court to recognize such proceedings the wife appeared and answered the husband's complaint. The answer denied the husband's Florida residence and the desertion, and alleged the entry of the New Jersey decree.

The cause was referred to a master and voluminous testimony was taken, culminating in a recommendation that the bill of complaint be dismissed because 'the plaintiff [had] not established statutory desertion * * *.'

When the matter reached the chancellor on exceptions to the master's report he decreed that the bill be 'dismissed' and that prayer for divorce be denied for the lack of proof of one of the elements of the charge of desertion. We do not find sufficient disparity between the recommendation and the decree to warrant an exploration of the law on the points attempted to be raised. Obviously the appellant won the suit when the bill was dismissed regardless of the fact that the master thought no element of desertion had been established, the chancellor thought one had not been proved.

Later, and by a separate order, the lower court, pursuant to the prayer of a petition filed by the husband, ordered the wife to join with the husband:

'* * * in the execution of a warranty deed with the said George C. Field, Jr., for the purpose of conveying said property to said purchaser and that in the event the defendant fails within ten (10) days from the date of this order to execute said deed, then the plaintiff is hereby authorized and directed to execute to said purchaser a deed in the name of himself and his said wife conveying the fee simple title thereby and all rights, title and interest therein of the said George C. Field, Jr., and Florence Dills Field, his wife, to the said purchaser, including all dower rights of the said defendant.'

The same order further provided:

'It Is Further Ordered, Adjudged and Decreed that the transaction whereby said sale shall be consummated shall be handled through petitioner's attorneys. Redfearn & Ferrell, of Miami, Florida, and that said attorneys are hereby authorized and directed to collect and receive the funds due under said sale and to disburse from said sum so received the amounts heretofore decreed to be paid by the order of this court dated November 5, 1952, or any other order, and also to pay all taxes, insurance premiums, and other items required for the protection of the properties now held in the name of George C. Field, Jr. and in the name of Capstone Manufacturing Company, a corporation in which George C. Field, Jr. is a majority stockholder.

'It Is Further Ordered, Adjudged and Decreed that said Redfearn & Ferrell are authorized and directed to pay to themselves out of said sum the reasonable fees now due to them by the said George C. Field, Jr., and that after said sums shall have been paid the said Redfearn & Ferrell shall report to the court the sums so paid out and the balance of moneys remaining in their hands to the credit of George C. Field, Jr. at which time the court will enter such further order concerning the disposition of the balance of the money on hand as may seem meet and proper. No adjudication is being made of the wife's right of dower or on the proceeds of said sale.'

It is from both the final decree and the order from which we have just quoted that this appeal is taken.

The order requiring the wife to join in the conveyance is obviously erroneous.

The purpose of ordering the wife to join in the conveyance was, of course, to divest her of her dower right in the property in order that an effective conveyance thereof could be made. Had the Chancellor granted a divorce in the cause the husband would have been free to make such conveyance. But the effect of what he did was to leave the parties just where they were (so far as the marital status was concerned) before the suit was instituted. The lower court's order was clearly erroneous under the ruling of this Court in the case of Pawley v. Pawley, Fla., 46 So.2d 464, 472, 28 A.L.R.2d 1358, rehearing denied, Fla., 47 So.2d 546 where, in footnote No. 2, it is said:

'In this, if not in every jurisdiction, right of dower can never be made the subject of a wholly independent issue in any divorce suit. It stands or falls as a result of the decree which denies or grants divorce. It arises upon marriage, as an institution of the law. The inchoate right of dower has some of the incidents of property. It partakes of the nature of a lien or encumbrance. It is not a right which is originated by or is derived from the husband; nor is it a personal obligation to be met or fulfilled by him, but it is...