Givens v. Givens

• Decision Date: 19 October 1935
• Citation: 121 Fla. 270,163 So. 574
• Parties: GIVENS v. GIVENS.
• Court: Florida Supreme Court

163 So. 574

121 Fla. 270

GIVENS v. GIVENS.

Florida Supreme Court

October 19, 1935

Suit by Darwin C. Givens against Clara Pugh Givens. From an order dismissing the bill, the plaintiff appeals.

Reversed. Appeal from Circuit Court, Hillsborough County Harry N. Sandler, judge.

COUNSEL

Morris M. Givens, Anthony A. Fernandez, and John H. Bledsoe, all of Tampa, for appellant.

OPINION

BUFORD Justice.

This case is before us on appeal from an order dismissing a bill for divorce on final hearing after testimony taken.

The bill of complaint alleged as ground for divorce that the defendant secured from the complainant a divorce in the state of Virginia on the 17th day of June, 1932, and that therefore complainant is entitled to have a decree of divorce from the defendant under paragraph 8 of section 3191, R. G. S section 4983, par. 8, C. G. L.

Decree pro confesso was entered after service by publication. Thereupon a master was appointed, testimony taken and presented to the court with motion for final decree.

The master's report was lengthy and showed due consideration in the matter presented and thereupon made the following recommendation to the court:

'On the evidence in this case and under the law above cited the master, therefore, finds and recommends that the care, custody and control of said minor boy, Morris Hudson Givens, be awarded to the complainant, his father, Darwin C. Givens.

'It is further recommended that the complainant pay all the costs of this procedure.'

The decree of divorce entered in the state of Virginia was in the following language:

'In the Corporation Court for the City of Charlottesville, Virginia.

'June 29th, 1932.

'Clara Belle Givens

v.

Darwin Creyon Givens.

'This cause came on this 17th day of June, 1932, to be heard upon the plaintiff's bill and exhibit filed therewith; upon the answer of the defendant thereto and general replication to said answer; upon the depositions on behalf of the plaintiff, and the exhibits filed therewith; and was argued by counsel.

'Upon consideration whereof, it appearing to the court independently of the admissions of either party in the pleadings or otherwise, that said parties were lawfully married on the 15th day of November, 1911; that continuously from the date of said marriage until June 2nd, 1931, complainant and respondent lived together as husband and wife, in Charlottesville, Virginia; that complainant has resided in said City of Charlottesville, and has therefore been domiciled in said State of Virginia, from the date of the aforesaid marriage to the date of this decree, and is now domiciled in said State of Virginia, and is and has been an actual bona fide resident of this State for at least one year preceding the commencement of this suit; and that said complainant last cohabited with said respondent in said City of Charlottesville; and that on the 2nd day of June, 1931, said respondent deserted and abandoned said complainant voluntarily, wilfully and without justification; and that although complainant undertook to effect a reconciliation with said respondent, such reconciliation was refused by said respondent, so that the court is of the opinion that said complainant is therefore entitled to the relief prayed for in her said bill, it is adjudged, ordered and decreed that said plaintiff and said defendant be and they are hereby divorced from each other, from bed and board.

'And it is further adjudged, ordered and decreed that said complainant be and is hereby given the custody of the two infant children of said marriage, Darwin Greyon Givens, Jr. and Morris Hudson Givens; and that the property rights of each of the parties hereto in the property of the other be, and are hereby extinguished both as to property, real and personal, heretofore or hereafter acquired by either of them.

'As no prayer appears in the bill with reference to alimony or to suit money, no order is entered with reference thereto; and nothing further remaining to be done in this suit, it is further ordered that the same be removed from the docket, but leave is reserved to the parties, or either of them, to make application to this Court for such further orders and decrees as are authorized by law.

'[Signed] A. B. Dabney, Judge.

'A Copy-Teste: C. E. Moran, Clerk.'

The decree appealed from was in the following language:

'This cause came on this day to be heard on the application of the plaintiff for a divorce a vinculo matrimonii, upon the bill of complaint and the master's report of the testimony submitted in support of the allegations of the bill of complaint and his recommendations thereof. A decree pro confesso for want of appearance was entered against the defendant.

The ground for divorce set forth in the bill of complaint is that the defendant secured a divorce from the plaintiff in the State of Virginia on or about the 17th day of June A. D. 1932. In support of this the plaintiff offered in evidence what purports to be a certified copy of the decree of divorce entered in the State of Virginia. The sufficiency of this copy is not now decided.

'The purported copy sets forth that 'Said plaintiff and said defendant be and they are hereby divorced from each other, from bed and board.' Section 4982, Compiled General Laws of Florida, 1927, provided, 'No divorce shall be from bed and board, but every divorce shall be from bonds of matrimony.' In view of this section, this court is of the opinion that the ground for divorce contemplated by our statutes is a divorce a vinculo matrimonii and not a divorce from bed and board. To hold otherwise, would in this case be to give greater effect to the decree of the Virginia Court than that court itself gives. It would require this court to enter a decree based on a decree of inferior dignity, rendered by a court of another state. It is thereupon ordered, adjudged and decreed, that the recommendations of the master in this cause be and the same are hereby overruled and the bill of complaint is dismissed at the cost of the plaintiff.'

The question presented is whether or not a divorce in another state or country 'a mensa et thoro' is a divorce within the purview and meaning of paragraph 8 of section 3191, R. G. S., section 4983, par. 8, C. G. L.

Section 3190, R. G. S., section 4982, C. G. L., provides: 'No divorce shall be from bed and board, but every divorce shall be from bonds of matrimony.' This was originally contained in the Act of February 14, 1835.

The...