Grossman v. Grossman

• Decision Date: 24 October 1956
• Citation: 90 So.2d 115
• Parties: Thelma M. GROSSMAN, Appellant, v. Martin GROSSMAN, Appellee.
• Court: Florida Supreme Court

Page 115

90 So.2d 115

Thelma M. GROSSMAN, Appellant, v. Martin GROSSMAN, Appellee.

Supreme Court of Florida, Division B.

Oct. 24, 1956.

Leo M. Alpert, Miami, for appellant.

L. J. Cushman, Miami, for appellee.

ROBERTS, Justice.

The appellee, Martin Grossman, filed a suit for divorce against his wife, Thelma, appellant here, alleging extreme cruelty. The wife counterclaimed for divorce on the same ground and asked that the custody of their two children, aged 4 and 3, be awarded to her, together with temporary and permanent alimony, support money, counsel fees and suit money. At the hearing on the wife's petition for temporary attorney's fee and suit money, the husband's attorney moved orally that the husband's suit be dismissed without prejudice. The motion was granted, and the cause was tried before the Chancellor on the wife's counterclaim for divorce. Thereafter, the Chancellor entered an order finding that the wife had failed to prove her counterclaim and dismissing her complaint. This appeal by the wife followed.

Unless the Chancellor misapplied a settled rule of law or misapprehended the legal effect of the evidence as a whole in arriving at his conclusion that the wife failed to prove her claim, his decree must be affirmed. McDade v. McDade, 107 Fla. 552, 146 So. 228.

The parties were married in 1947 and have two children, born in 1950 and 1951. The wife testified that from the very first her husband criticized everything she did and that 'there was nothing that I could do that was right. He seemed to dislike me.' On one occasion, he threw across the room a plate of eggs that were not cooked to suit him. Another time, he threw away a screen that the wife had painted and of which she was very proud. Again, he threw away an article of wearing apparel that he did not approve of. When the wife was pregnant with her first child, there was an argument about an overnight fishing trip and, when he returned to find that the wife was not home (she was spending the night with a girl friend), he packed up his clothes and moved. He stayed away almost two weeks on this occasion. About two years before the divorce suit, after an argument over a trip to New Jersey, he moved out again. This time he came back in four or five days. When the wife had been home from a European trip (taken at her mother's expense) about two weeks, he moved out again--saying that he 'was through playing games' and was gone for good this time. He then filed the suit for divorce which initiated the instant litigation, alleging that the wife 'over a period of several years * * * has pursued a course of conduct calculated and intended by her to cause Plaintiff great and excruciating anguish in mind and body and she well knows that her said conduct has said effect upon Plaintiff; she has repeatedly stated to Plaintiff that she does not love him; that she cares nothing for him and that she wants a divorce and wants to be free or to be rid of him; that for many, many months she has repulsed every advance made by Plaintiff toward her and has constantly exhibited toward Plaintiff a cold, cruel, heartless disposition and has refused to take any care of her household affairs and duties; * * *' As noted, he dismissed his complaint, without prejudice, during the first hearing; and during the trial on the wife's cross complaint, he testified that until his wife came back from her European trip she had been kind, loving, indulgent and affectionate.

The wife's testimony as to her husband's constant criticism of her was corroborated by her mother, who lived in the home with them. The husband testified that he 'thought' he treated his wife with consideration. When asked if he had been 'constantly critical of everything she had done,' he said 'I don't think I have been. In fact, I know I haven't been.' He explained the screen incident by stating that it did not allow enough passage way between the kitchen and dining room and was in his way, so he threw it away. He said he did not rip the article of wearing apparel (a halter top, worn with shorts) from his wife's body (as stated by her) but merely threw it away because it was 'too exposing.' He did not explain the egg incident. He said he did not leave his wife after the fishing trip incident--that he moved out of the house so that she would come back to the house, 'so she wouldn't be elsewhere unattended.' He said his wife moved back the next day, but does not explain why he stayed away twelve days. As to the argument over the New Jersey trip, he stated that his wife was angry because he wouldn't take her to New York to visit while he attended a business conference in New Jersey; that she wouldn't cook his meals for two or three days and that he moved out because he 'couldn't live with a woman who wouldn't feed me and wouldn't be a wife to me.' He explained his third and last defalcation by stating that his wife was very cool toward him...