Fletcher v. Fletcher

• Decision Date: 21 May 1970
• Docket Number: No. L-378,L-378
• Citation: Fletcher v. Fletcher, 235 So.2d 520 (Fla. App. 1970)
• Parties: Dorothy Christina FLETCHER, Appellant, v. Henry Lamar FLETCHER, Appellee.
• Court: Florida District Court of Appeals

Page 520

235 So.2d 520

Dorothy Christina FLETCHER, Appellant, v. Henry Lamar FLETCHER, Appellee.

No. L-378.

District Court of Appeal of Florida, First District.

May 21, 1970.

Elliott, Tindell & Van Voorhees, Daytona Beach, for appellant.

Sherrill & Moore, Pensacola, for appellee.

WIGGINTON, Judge.

Plaintiff wife seeks review of a final judgment denying her prayer for divorce and dismissing her complaint. The primary thrust of the appeal challenges the correctness of the trial court's application of the law of condonation to the facts established by the evidence. At issue also is the sufficiency of the amount awarded by the court for child support and attorney's fees for plaintiff's counsel.

Appellant wife and appellee husband were married in 1962 and lived together until their first separation in June, 1966. During this period of cohabitation two children were born of the marriage. Because of appellee's alleged acts of cruelty toward appellant, she separated from him in June, 1966, taking with her the children and returning to live with her mother. During this period of separation she instituted this action seeking a divorce on the grounds of cruelty, alimony, custody of the children and support for them. During the pendency of this action the parties became reconciled, agreed to forgive each other for all past offenses and to resume cohabitation at a home purchased by appellee in Pensacola. The marital relationship was resumed in October, 1967, but listed for a period of only two months terminating in a second and final separation by appellant from appellee on December 8, 1967. Following this last separation appellant filed an amended complaint alleging the reconciliation of the parties, their resumption of cohabitation as husband and wife, and the final separation in December, 1967. The amended complaint contained the same prayers for relief as the original complaint filed by her. Appellee's answer denied the material allegations of the complaint and counterclaimed for a divorce alleging as grounds in support thereof acts of adultery on the part of appellant. It was the issues drawn by the foregoing pleadings that were tried before the court and resulted in the rendition of the judgment appealed herein.

The final judgment contains the trial court's findings and conclusions. After reciting the history of the case commencing with the first separation of the parties, the institution of this action and the reconciliation of the parties, the court found and concluded:

'(3) That said period of cohabitation existed for approximately two months and evidence in support of a cause for divorce occurring during said period of cohabitation does not preponderate in favor of either party. That evidence of wrongdoing on the part of either party during said period of resumed cohabitation is insufficient to revive any cause of action which might have accrued prior to said condonation.'

Based upon the foregoing findings and conclusion the trial court held that neither party sustained by a fair preponderance of the evidence the cause of action alleged in the complaint filed by appellant and the counterclaim filed by appellee, therefore, both parties were denied their respective prayers for divorce.

Appellant contends that the above-quoted legal conclusion reached by the trial court misconceived the correct principle of law applicable to the facts in this case in that its effect is to hold that acts of cruelty committed by the appellee toward appellant were condoned by the reconciliation between the parties and were not revived by the acts of misconduct committed by appellee during the period of reconciliation because they were not sufficient to constitute independent grounds for divorce. The abstract principle of law espoused by appellant is correct and conforms to the established law of this state. In the early case of Ringling v. Ringling ¹ the Supreme Court adopted the well settled rule recited in 9 R.C.L. 384, as follows:

"It is well settled that condonation of past matrimonial offenses is impliedly conditioned upon the future good behavior of the offending spouse, and it follows that if after condonation the offenses are repeated the right to make the condoned offense a ground for divorce revives. To constitute a revival of the condoned offense the offending spouse need not be guilty of the same character of offense as that condoned; any misconduct is sufficient which indicates that the condonation was not accepted in good faith and upon the reasonable conditions implied."

And in Kollar v. Kollar ² the Supreme Court said:

'* * * Moreover, by the weight of authority, a condoned marital offense may be revived by misconduct of the offending spouse which, though perhaps not sufficient in and of itself to constitute ground for divorce, is of such a grave nature as to raise a reasonable probability that the condition upon which forgiveness was given was not accepted in good faith, or that if the marriage relation is continued a new cause for divorce will arise. * * *'

From the foregoing the principle seems to be firmly established that acts of an offending spouse constituting grounds for divorce which are condoned by reconciliation of the parties may be revived by acts of misconduct committed by the offending spouse during the period of reconciliation, which acts need not be of such character or gravity as to constitute independent grounds for divorce, but may be of a much milder nature and even different in character from those originally committed.

If...