Gill v. Gill

• Citation: 145 So. 758,107 Fla. 588
• Parties: GILL v. GILL.
• Decision Date: 09 January 1933
• Court: Florida Supreme Court

145 So. 758

107 Fla. 588

GILL v. GILL.

Florida Supreme Court

January 9, 1933

Rehearing Denied Feb. 7, 1933.

En Banc.

Suit by Richard Spencer Gill against Ruth Bowden Gill for divorce, in which defendant filed a cross-suit for alimony. From a final decree granting complainant a divorce and denying defendant's prayer for alimony, defendant appeals.

Affirmed in part, and reversed in part. Appeal from Circuit Court, Palm Beach County; C. E. Chillingworth, judge.

COUNSEL

E. M Baynes and E. A. Lake, both of West Palm Beach, for appellant.

O. E Falls, of West Palm Beach, for appellee.

OPINION

TERRELL J.

Appellee as complainant below brought suit against appellant for divorce. Appellant as complainant then countered with a suit against appellee for alimony. The two causes were consolidated on stipulation of the parties, and on final hearing appellee's prayer for divorce was granted and appellant's prayer for alimony was denied. This appeal is from that final decree.

The suit for divorce was predicated on extreme cruelty and frequent indulgence in a violent and ungovernable temper. The evidence on this point is in hopeless conflict, but the finding of the chancellor is amply supported by the record and will not be disturbed. We are of the view, however, that his finding on the question of alimony was erroneous.

In its original inception, alimony was the means by which the spiritual courts enforced the husband's common-law duty to support his wife. In its current use it signifies nourishment or sustenance, and has reference to that allowance which the husband may be required to pay his wife for her maintenance when living separate from him by reason of divorce or for other causes. It differs from dower, in that it continues only to the death of the husband, at which time the wife comes into possession of the latter to provide for her after his decease. R. C. L. 864 and 867.

Alimony will not ordinarily be granted after a valid decree of divorce has been entered, but it may be granted pendente lite, or in connection with divorce or unconnected with divorce, or unconnected with cause for divorce. Section 3194 et seq., Revised General Statute of 1920 (section 4986 et seq., Compiled General Laws of 1927). The settled rule in most states is to the effect that the jurisdiction of equity courts to award alimony is not merely incidental to suits for divorce or separation, but is inherent, and that alimony may be awarded in an independent suit therefor. The law of this state makes no exception to that rule, except that it commands that no alimony shall be granted to an adulterous wife. Sections 3195 and 3196 Revised General Statute (Comp. Gen. Laws, §§ 4987, 4988), supra.

Under section 3197, Revised General Statutes of 1920 (section 4989, Compiled General Laws of 1927), the right to apply for alimony without any reference whatever to divorce is granted the wife. She may in this case be living with the husband, or apart from him through his fault. The application at bar is clearly within this statute; the record disclosing that the parties lived together continuously till the wife went to Atlanta to be treated by a bone specialist, that the husband furnished her the means to make this trip, corresponded with her for a while, but, before her return, he made up his mind to separate from her, and refused to live with her on her return and continued to do so.

In Phinney v. Phinney, 77 Fla. 850, 82 So. 357, this court held that our statute did not warrant permanent alimony to the former wife in a suit for divorce by the husband when she was wholly at fault. This rule is approved in other states when there are no mitigating circumstances and the husband has committed no breach of marital duty, but it does not apply when the husband has not been entirely free from blame, or when the husband and wife have acquired property jointly, or when the wife has contributed personally to the husband's estate, either from her industry or from her own property. Erdmans v. Erdmans, 90 Fla. 858, 107 So. 188; Carlton v. Carlton, 78 Fla. 252, 83 So. 87; Raborn v. Raborn, 81 Fla. 51, 87 So. 50; Baker v. Baker, 94 Fla. 1001, 114 So. 661.

In the case at bar, the husband was not wholly free from fault. A careful reading of the record leaves one of impartial mind with the feeling that incompatibility existed between the parties; that such incompatibility was intensified by medding on the part of relatives and maybe others; that, recoiling from the sting of such meddling and for other causes, the wife browbeat, tongue-lashed, insinuated, and goaded the husband with charges of unfaithfulness and incontinence that baffle one's credulity, and no doubt made the marital relation intolerable. In addition to this, she at times victimized her husband by resorting to physical violence, and thereby made herself a nuisance as a wife. The husband, though at times acquiescent, was often a contributing factor to these domestic cyclones. There were instances in which he retaliated in kind, he condoned the conduct of his wife in ways not necessary to relate, and, at the time he made up his mind to sever the marital relation, she was under treatment by a bone specialist in Atlanta for injuries to her hand that he had inflicted, and it may be that these injuries are permanent, though that remains to be seen.

At the time of the marriage of the parties hereto, his wife was a trained nurse and a graduate musician. She was without means of support except as made in this way. It is contended on behalf of the husband that such acts of violence as he committed on his wife were committed in his self-defense, but, be that as it may, it was not necessary that his self-defense be exercised in a manner to maim his wife and, for a while at least, seriously impair her ability to earn a living; it being shown that in one of their encounters he broke one of the bones in the little finger of her left hand and wrenched the wrist so severely that the bones in it were dislocated and the hand still not flexible.

Under the common law, absolute divorce precluded the granting of alimony, as the duty of support no longer existed; neither had the wife a right of action against the husband to recover for her support. In some jurisdictions the matter of granting alimony is regulated entirely by statute, while in some it is held that, aside from statute, the better-reasoned rule is that it is matter inherently of equitable cognizance, and may be awarded at the discretion of the chancellor according to the facts of the particular case. We approve that rule in this state.

It would be manifestly inequitable to hold the husband not liable for the payment of alimony under the facts in this case. No question of property rights is involved, but he has materially impaired his wife's capacity to make a living and should therefore...