Goslinowski v. Goslinowski, 57-109

• Decision Date: 29 October 1957
• Docket Number: No. 57-109,57-109
• Parties: Christine GOSLINOWSKI, Appellant, v. George S. GOSLINOWSKI, Appellee.
• Court: Florida District Court of Appeals

Page 723

97 So.2d 723

Christine GOSLINOWSKI, Appellant, v. George S. GOSLINOWSKI, Appellee.

No. 57-109.

District Court of Appeal of Florida, Third District.

Oct. 29, 1957.

David Levine, Miami, for appellant.

Long, Crouch & Ward, Hallandale, for appellee.

HORTON, Judge.

The appellant wife filed suit for divorce on the grounds of extreme cruelty and sought custody of the minor children, alimony and suit money. After the filing of the bill of complaint and upon notice and hearing, the lower court granted the appellant temporary custody of the minor children, ordered the appellee to pay $40 per week for her support and that of the children, and enjoined the appellee from annoying or harassing the appellant. Appellee filed an answer to the complaint denying the material allegations and a counter-complaint for divorce charging the appellant with extreme cruelty and adultery. The appellant answered the counter-complaint by a denial and as to the charge of adultery, alleged that any such acts on her part had been condoned by the appellee by reason of subsequent cohabitation, and the Chancellor ruled accordingly. ¹

Upon the issues made by the complaint, the answer, counter-complaint and reply thereto, the cause was tried. The trial judge granted the appellee a divorce upon findings that the appellant had been guilty of extreme cruelty and adultery on two occasions; in Tucson, Arizona and subsequently in Florida, about the time the cause was heard. Custody of the children was awarded the appellee, the appellant was denied alimony and directed to convey her interest in the home to the appellee.

It is from this final decree that the appellant has appealed. She claims the lower court erred in a finding of adultery contrary to the evidence, and in requiring the appellant to reconcile with the appellee or to suffer an adverse decree if she did not comply.

The chancellor in the lower court was faced with a gargantuan if not an insurmountable task of attempting to bring a semblance of order and stability out of the chaos and confusion that had been built up over the years by a multitude of matrimonial storms. The chancellor's efforts in attempting to reconcile the differences between the parties were commendable, but we feel from his own statement and our analysis of the evidence that he failed to apply the applicable principles of law to the evidence.

This court can see no useful purpose that would be served in rehashing the differences, discord and unfortunate circumstances that brought this marriage to a divorce court. The record is replete with acts of indifference and marital indignities committed by each of the parties toward the other. When viewing all of the evidence, we can only conclude that both parties were to blame for the lamentable situation that eventually culminated in separation. The chancellor below seemed to be of a like mind for he indicated that he felt neither party was deserving of having custody of the minor children. ² The decree in this case obviously was based upon an alternative which the lower court gave to the parties with which the appellant refused to comply. In refusing the court's ultimatum to reconcile with the appellee, she thereupon suffered an adverse decree. ³

Under the circumstances reflected by the record, we conclude that the lower court was in error in finding on the basis of the evidence that the appellant had been guilty of adultery. The affair in Tucson was clearly condoned and the chancellor so found. The incidents in Florida were reported by two private investigators and consisted of certain questionable fishing trips in the Florida Keys. The facts proffered are wholly inadequate to support a finding of adultery. Although the nature of the alleged act is such that it is usually impossible to establish by direct testimony, there must be sufficient facts to justify a reasonable conclusion that such acts were committed. See Engebretsen v. Engebretsen, 151 Fla. 372, 11 So.2d 322. Cf. Ingraham v. Ingraham, 80 Fla. 75, 85 So. 666; Crews v. Crews, 130 Fla. 499, 178 So. 139; Coffee v. Coffee, 151 Fla. 771, 10 So.2d 431; Schuberth v. Schuberth, Fla., 1951, 52 So.2d 332.

The appellee announced in the lower court upon the conclusion of the taking of testimony that he did not want a divorce and he has, through his counsel, repeated that position to this court. It thereupon becomes obvious that no predicate existed for the relief granted. Although we are of the view that the evidence does not support a finding of adultery on the part of the appellant, we do not conclude that she is entitled to relief on her...