Hancock v. Hancock

• Decision Date: 04 March 1908
• Citation: 45 So. 1020,55 Fla. 680
• Parties: HANCOCK v. HANCOCK.
• Court: Florida Supreme Court

45 So. 1020

55 Fla. 680

HANCOCK v. HANCOCK.

Florida Supreme Court, Division A.

March 4, 1908

Appeal from Circuit Court, Escambia County; J. Emmet Wolfe, Judge.

Bill by Robert O. Hancock against Leah M. Hancock. Decree for defendant, and complainant appeals. Affirmed.

Syllabus by the Court

SYLLABUS

Although upon its face the complainant and defendant only in a suit for divorce are parties thereto, the government in a sense is also a party, whose duty it is to see that public morals and the welfare of the entire community are protected; and the rights of this third party should never be forgotten by the court.

The law has wisely enjoined upon the courts the duty of watching over divorce proceedings with the closest scrutiny and interposing to prevent abuses of the delicate and responsible power confided to them to dissolve the marriage contract. What shall be deemed sufficient cause of divorce must ever be a matter of law, and it is the duty of the court to refuse a decree, unless satisfied of the sufficiency of the allegations, as also the truth of the evidence to establish one of the statutory grounds for divorce.

It is incumbent upon a complainant to allege in his bill every fact clearly and definitely that is necessary to entitle him to relief; and if he omits essential facts therefrom, or states such facts therein as show that he is not entitled to relief in a court of equity, he must suffer the consequences of his so doing. The facts and circumstances upon which a complainant bases his claim and right to relief which he seeks are matters peculiarly within his own knowledge, and he will be presumed to have stated them as strongly and favorably to himself as he could, exercising his privilege of selecting his own language in which to couch them.

In a suit for divorce, no decree can be made without proof of the allegations of the bill, and, even if the defendant fails to appear, the courts are nevertheless bound to proceed with the same formality as if he were present and maintaining the keenest opposition; hence the entry of a decree pro confesso in such a suit amounts to but little. When the bill is so defective as to fail in setting out a legal cause for divorce, no amount of evidence will warrant a decree upon it.

In a suit for divorce, where a decree pro confesso has been entered against the defendant, and the complainant applies to the court for an order of reference to a master in chancery for the purpose of taking testimony, if the bill fails to contain sufficient allegations, which, if established by competent testimony, would warrant a decree, no error is committed by the court in refusing to grant such order and in rendering a decree dismissing the bill.

It is not the policy of the law to grant divorces for postnuptial causes short of marital infidelity, when such causes do not in fact render one of the parties incapable of performing the duties incident to the marriage status. Relief is given in such cases by the courts on the ground that the conduct of one party renders it impracticable for the other party to perform the marital duties.

Divorce on the ground of extreme cruelty will be denied, where there is no actual violence, unless the treatment, or abuse, or neglect, or bad conduct complained of be such as damages health, or renders cohabitation intolerable or unsafe, or unless there are threats of mistreatment of such flagrant kind as to cause reasonable and abiding apprehension of bodily violence, so as to render it impracticable to discharge marital duties. The general charge of cruel and inhuman treatment is not sufficient, when the facts and details specified as constituting the charge fall short of sustaining it.

Mere indiscreet or imprudent conduct and relations with young men on the part of a married woman, all embraced under the general term 'flirting,' is not cause for divorce.

COUNSEL Avery & Avery, for appellant.

OPINION

SHACKLEFORD C.J.

On the 23d day of May, 1907, the appellant filed his bill in chancery in the circuit court for Escambia county against the appellee, in which he sought a divorce. The bill alleges that the appellant and appellee were married in Kansas City, Mo on the 21st day of December, 1904, and the statutory ground upon which the divorce is sought is extreme cruelty. The specific allegations in regard to such extreme cruelty are as follows:

'That the acts of the defendant constituting the said extreme cruelty have consisted in her having from time to time and frequently during the past year and a half, at Pensacola in the state of Florida, Beaumont, in the state of Texas and Boydton, in the state of Virginia, entered into relations of the utmost intimacy with young men, such relations consisting of love making, and secret meetings, and correspondence; and your orator has reason to believe, and does believe, and so alleges, that such intercourse was not pure, and was in violation of the moral standards which should govern married people in their intercourse with others of the opposite sex. But your orator refrains from making any charge of actual criminality, because he has no evidence thereof, other then the fact that the rules of society, which have for their purpose the protection of female virtue, have been violated by clandestine meetings and secret correspondence as aforesaid.

'That the acts aforesaid of the defendant have been against the protests of your orator, and in spite of his efforts to prevent and terminate them, and that their occurrence and continuance have preyed upon your orator's mind, disturbed his peace, and have so affected him in spite of his efforts to withstand them, that his health is impaired, and, unless he can forever get rid of the situation in which he is placed, as aforesaid, by a dissolution of the bonds of matrimony between him and the defendant, his bodily health will be impaired and his life made utterly and permanently miserable.'

The defendant was alleged to reside at Superior, Wis., and service was effected on her by publication. She failed to enter any appearance, or to file any plea, answer, or demurrer, and a decree pro confesso was entered against her by the clerk of such circuit court on the rule day in August, 1907.

On the 7th day of October, 1907, the following decree was rendered:

'This cause coming on to be heard upon application for appointment of a master to take testimony, and the court having read the bill of complaint, and being of the opinion that the allegations thereof do not present a case which entitles complainant to a decree, declines to appoint a special master.

'It is further ordered, adjudged, and decreed that said bill of complaint be and the same is hereby dismissed.

'Thus done and ordered this 7th day of October, A. D. 1907, at De Funiak, Florida.'

From this decree the complainant has entered an appeal to this court, seeking a reversal thereof. The appellee has not appeared in this court, nor have we been favored with any brief in her behalf.

As was well said by Mr. Justice Westcott in his concurring opinion in Underwood v. Underwood, 12 Fla. 434, text 443: 'It has been properly remarked that a divorce suit may be regarded as a civil suit between three distinct parties, the government, the plaintiff, and defendant. It is the office of the government to protect the interests of the public, the welfare of the entire community whose interests are involved, and to see that public morals are protected; and the rights of this party should never be forgotten by the court.' Also see, to the same effect, 7 Ency. of Pl. & Pr. 120, and authorities cited in note 6; 14 Cyc. 577, and authorities cited in note 36; 2 Bishop's Marriage, Divorce, and Separation, §§ 480, 489, 491.

As was said in Moore v. Moore, 22 Tex. 237, text 239: 'The law has wisely enjoined upon the courts the duty of watching over these proceedings with the greatest scrutiny, and interposing to prevent abuses of the delicate and responsible power confided to them to dissolve the marriage contract. What shall be deemed sufficient cause of divorce must ever be matter of law; and the law has made it the duty of the judge to refuse a decree, unless satisfied of the truth and sufficiency of the evidence by which those causes are established.'

It is settled law here that it is incumbent upon a complainant to allege in his bill every fact, clearly and definitely, that is necessary to entitle him to relief; and if he omits essential facts therefrom, or states such facts therein, as show that he is not entitled to relief in a court of equity, he must suffer the consequences of his so doing. Horne et al. v. J. C. Turner Cypress Lumber Co. (decided here at the present term) 45 So. 1016, and authorities there cited. The facts and circumstances upon which a complainant bases his claim and right to the relief which he seeks are matters peculiarly within his own knowledge, and he will be presumed to have stated them as strongly and favorably to himself as he could, exercising his privilege of selecting his own language in which to couch them. See discussion and citations of authority in concurring opinion in Atlantic Coast Line R. Co. v. Benedict Pineapple Co., 52 Fla. 165, text 174 et seq., 42 South 529, text 532, and Anderson v. Northrop, 30 Fla. 612, text 652, 12 So. 318, text 328. It would seem that this principle would be peculiarly and especially applicable in suits for divorce, by reason of the interest the government has therein and the duty cast upon the courts to protect the interests of the public, as we have already seen.

It is also settled law here that the allegata and probata must reciprocally meet and correspond; the issues being made by the pleadings, to which the proof must be confined. Horne et...