Hohweiler v. Hohweiler

• Citation: 167 So.2d 73
• Decision Date: 04 September 1964
• Docket Number: No. 4474,4474
• Parties: Ruth HOHWEILER, Appellant, v. Edward HOHWEILER, Appellee.
• Court: Court of Appeal of Florida (US)

Page 73

167 So.2d 73

Ruth HOHWEILER, Appellant, v. Edward HOHWEILER, Appellee.

No. 4474.

District Court of Appeal of Florida, Second District.

Sept. 4, 1964.

Russell K. Peavyhouse and Benjamin C. Sidwell, of Sidwell & Cheatwood, Tampa, for appellant.

Howard L. Garrett, of Garrett & Garrett, Tampa, for appellee.

SHANNON, Judge.

The appellant, defendant below, appeals from the chancellor's final decree granting the appellee, plaintiff below, a divorce and denying the appellant alimony and attendant expenses.

From the first final decree, which was dated May 17, 1963, we gather these facts. The parties were married in 1928 and lived together until July 19, 1950, at which time the husband left the wife and moved to Tampa, Florida, and began divorce proceedings against the wife, obtaining a final decree of divorce dated October 29, 1951. It was subsequently found that constructive service on the wife was based on false affidavit executed by the husband, and the divorce decree was set aside. In 1953 the parties appeared before a Superior Court of New Jersey in proceedings initiated by the wife for nonsupport. The New Jersey Court found that the husband had unjustifiably deserted the wife and infant child and ordered him to pay $37.50 per week for support of the wife and child. In 1962 the husband brought divorce proceedings in Tampa against the wife, who resided in New Jersey, charging desertion and extreme cruelty. The wife defended on the grounds that the husband was precluded from obtaining a divorce by his unclean hands. The chancellor originally denied the husband a divorce, but upon a rehearing, granted the divorce for the reason that the husband's acts constituting unclean hands occurred subsequent to the separation which had been caused by the extreme cruelty of the wife. The husband had been paying support money for the wife and child as ordered by the New Jersey Court until the time of these proceedings. The child is now 27 years old and has been self-supporting since he became 21 years old. The chancellor denied the wife's petition for travel and maintenance expenses for the reason that 'it would be inequitable to grant her same because of her collection from plaintiff of child support for a period of six years subsequent to said child's majority and marriage.'

The wife is appealing on three grounds, that: 1) The chancellor erred by holding that the defense of unclean hands was inapplicable. 2) The court erred by failing to give effect to the New Jersey decree which found that the husband caused the separation of the parties. And 3) The chancellor erred in not granting the wife alimony, along with travel and maintenance expenses.

The court ruled that the defense of unclean hands was inapplicable after hearing the testimony of the parties, which was conflicting. It appears to be a close question, but we cannot say that the chancellor abused his discretion under the circumstances as shown by the record, and so the granting of the divorce is affirmed.

The appellant contends that the issue of who was at fault regarding the separation of the parties, was decided by the New Jersey Court and it is res adjudicata, or, alternatively, there is estoppel by judgment. In order for the doctrine of res adjudicata to be applicable the subsequent proceedings must involve the same cause of action. Under res adjudicata the first decree or judgment is conclusive...