Gordon v. Gordon

• Decision Date: 02 May 1952
• Citation: 19 A.L.R.2d 1428,59 So.2d 40
• Parties: GORDON v. GORDON.
• Court: Florida Supreme Court

Page 40

59 So.2d 40

GORDON v. GORDON.

Supreme Court of Florida, Division A.

May 2, 1952.

Rehearing Denied May 21, 1952.

Blackwell, Walker & Gray, Miami, for appellant.

Robineau, Budd, Levenson & Van Devere, Miami, for appellee.

HOBSON, Justice.

This is the second appearance of the instant suit in this Court. The citation of our opinion on the prior appeal is 160 Fla. 838, 36 So.2d 774, 4 A.L.R.2d 102. On the former appeal we reversed the decree of divorce which was entered in favor of Miriam Gordon, appellee in this as well as in the earlier appeal. Our judgment was predicated upon the fact that the said Miriam Gordon had on January 18, 1946, instituted an action for divorce in the Court of Common Pleas in and for Cambria County, Pennsylvania, which culminated in a final decree adverse to her. The ground which she asserted in the Pennsylvania court was that of 'indignities to the person.' While that case was pending Miriam Gordon came to Florida and without dismissing the Pennsylvania action, although she attempted unsuccessfully to do so, instituted this suit for divorce in the Circuit Court in and for Dade County alleging the grounds, cruelty and desertion. Her husband, Morris Gordon, through counsel, first filed a motion to dismiss the bill asserting in his motion the pendency of the Pennsylvania action. Thereafter he filed an answer in which he specifically pleaded the final decree rendered by the Pennsylvania court and alleged and proved that after a hearing, notice of which had been duly given to Miriam Gordon, the Pennsylvania court entered a final decree on the merits approving the Master's recommendation that Miriam Gordon's prayer for a divorce be refused and dismissing her Pennsylvania action.

The lower court failed to give full faith and credit to the decree of the Pennsylvania court and on appeal we reversed the Chancellor's ruling, and, of course, the final decree of divorce which he had entered in favor of Miriam Gordon was necessarily set aside and held for naught. We pause at this juncture to dispose of the contention made by appellant that said final decree should now be held to operate as res adjudicata on the question of desertion which was reasserted by an amendment after our judgment of reversal. Counsel's position is bottomed upon the fact that the special master originally appointed in this suit recommended a final decree of divorce in favor of Miriam Gordon and that such final decree be granted upon the ground of extreme cruelty. Counsel patently mean by this it should be inferred that in the final decree which approved and adopted the special master's recommendations but which was reversed by this Court, a divorce upon the ground of desertion was expressly denied appellee. Such inference [we indulged it originally] was proper so long as that final decree remained in full force and effect. However, the contention that res adjudicata could be predicated upon said final decree after its reversal is untenable, particularly in view of the fact that the pleadings have been revamped and additional testimony taken. This is the same suit--not a suit which was instituted subsequent to prior litigation in which a valid final decree was entered which continued, as such, to subsist. The original decree which was reversed has never had any validity or efficacy whatsoever since our judgment of reversal. It is apodictic that without a valid subsisting decision in an earlier stage of the same suit or a final decree or judgment entered in a former action there is no foundation for invocation of the doctrine of res adjudicata or the principle of estoppel by judgment. The only decision or final decree now extant so far as this suit is concerned is that with which we are now dealing. The situation in this regard at present is not different from that which would have existed if the Chancellor, after entering the first final decree, upon a petition for rehearing had granted same and subsequently, upon a re-reference and the taking of additional testimony, had changed his ruling upon the subject of whether Morris Gordon had been guilty of desertion.

It was our opinion and judgment upon the first appearance of the instant suit in this Court that the Pennsylvania Court's final decree should have been given full faith and credit because we determined that both suits were predicated upon the same cause of action after concluding that the testimony which was presented by the appellee in her Florida suit was 'essentially the same as that which she would have been required to present to establish her charge of 'indignities to the person', had she pursued her action in Pennsylvania where she was given ample notice and opportunity to be heard.'

Upon remand to the Circuit Court appellee amended her bill of complaint. In and by her amendment she reiterated her charge of extreme cruelty and elaborated thereon. She also reasserted that the appellant had been guilty of desertion which she contends was constructive in character.

The final decree from which this appeal is prosecuted granted unto Miriam Gordon a decree of divorce a vinculo matrimonii. In and by said decree it was determined Miriam Gordon had established that her husband was guilty of desertion and of extreme cruelty which was expressly declared to have been of a physical nature.

It was the Chancellor's view that full faith and credit need not now be given to the final decree of the Pennsylvania court. It was his opinion that the evidence which was produced by the appellee established extreme cruelty of a physical nature and that her action in Pennsylvania was not based upon a ground which contemplated physical cruelty. He further reached the conclusion that appellee's suit in this State was not foreclosed by the final decree of the Pennsylvania court because appellee did not in that court assert desertion as a ground for divorce. Moreover the Chancellor followed the suggestion of counsel to the effect that she could not have charged desertion at the time she filed her action in Pennsylvania under the law of that State because the Pennsylvania statute requires desertion for a period of two years and such period had not then run.

We will first deal with the question whether the Pennsylvania decree should have been given full faith and credit and whether it operates as a bar to the entry of the final decree now under review.

Apparently some lawyers and text book authors believe there is confusion in the law of this jurisdiction upon the question, under what circumstances does the doctrine of res adjudicata or the principle of estoppel by judgment become operative. In all probability the confusion which apparently exists stems from a failure clearly to comprehend the difference between the doctrine of res adjudicata and estoppel by judgment and to understand the test proper to be applied in determining which, or whether either, may be appropriately invoked. Estoppel by judgment has its counterparts or at least its quasi counterparts, in 'estoppel by verdict' and 'conclusiveness of verdict.' Either res adjudicata or estoppel by judgment furnishes the primary test in determining the applicability of the full faith and credit clause of the Federal Constitution, art. 4, § 1. This Court has at least indicated that full faith and credit need not be given to a final decree of a sister state when estoppel by judgment is the appropriate test unless the 'precise facts' offered by the plaintiff in the Florida action were heard and determined in the former suit which was adjudicated in the foreign jurisdiction. See Bagwell v. Bagwell, 153 Fla. 471, 14 So.2d 841.

The adjudications in other jurisdictions which we have considered in connection with this case lead us to the conclusion that there is an absence of uniformity with respect to the test which should be employed to determine whether a final decree or judgment of a foreign jurisdiction should be accorded full faith and credit in a subsequent action between the same parties. Some courts hold, so we believe, as we held in Gordon v. Gordon, supra, that is to say that the determining factor in deciding whether the cause of action asserted in the first suit was the same as that relied upon in the second suit, is whether the evidence necessary to sustain the latter action was essentially the same as that which was given or would have been required had the complaining party testified in the prior suit. Buder v. Fiske, 8 Cir., 174 F.2d 260; Griggs v. Griggs, 214 S.C. 177, 51 S.E.2d 622; Whelan v. Connolly, 192 Misc. 382, 80 N.Y.S.2d 691; Band v. Reinke, 230 Iowa 515, 298 N.W. 865; Jackson v. Pepper Gasoline Co., 284 Ky. 175, 144 S.W.2d 212. See also 4 A.L.R.2d 107 et seq. Other courts are of the opinion that full faith and credit should be given and that a final decree of a court of competent jurisdiction of a sister state should operate as a bar to a subsequent action as to all matters which were or might have been litigated originally. Ashton v. Ashton, 192 Ark. 774, 94 S.W.2d 1033; Bowen v. Bowen, 219 Iowa 550, 258 N.W. 882; Ball v. Ball, 189 Ark. 975, 76 S.W.2d 71; 27 C.J.S., Divorce, § 326, page 1271; 4 A.L.R.2d 114.

We have held as a general proposition that when a final decree or judgment of a court of competent jurisdiction becomes absolute it puts at rest and entombs in eternal quiescence every justiciable, as well as every actually adjudicated, issue. This pronouncement is considered by us as controlling only when res adjudicata is the proper test. By this we mean it is not controlling except in an instance wherein the second suit is between the same parties and is predicated upon the same cause of action as was the first. If the second suit is bottomed upon a different cause of action than that alleged in the prior case estoppel by judgment comes into play and only those matters actually litigated and determined in the initial action are foreclosed--not other matters which 'might have been,...