Kellogg v. Kellogg

• Decision Date: 15 February 1927
• Citation: 93 Fla. 261,111 So. 637
• Parties: KELLOGG v. KELLOGG.
• Court: Florida Supreme Court

111 So. 637

93 Fla. 261

KELLOGG v. KELLOGG.

Florida Supreme Court, Division A.

February 15, 1927

Rehearing Denied March 8, 1927.

Suit by F. W. Kellogg against Edna A. Kellogg for divorce. From a decree of divorce, defendant appeals.

Reversed and remanded for further proceedings.

Syllabus by the Court

SYLLABUS

Denying motion to amend demurrer to bill for divorce, interposed some months before, not made until at or about time of final hearing, is not abuse of discretion. The chancellor will not be held to have abused his discretion in denying a motion to amend a demurrer which had been interposed to the bill some months before, and such motion to amend was not made until at or about the time of final hearing.

Supreme Court will notice that bill does not charge essential elements for divorce, regardless of lack of valid demurrer pointing out such defect; public policy requires that divorce shall not be granted except on legal grounds. Where a bill for divorce is fundamentally insufficient, in that it does not charge the essential elements of any ground for divorce recognized by our statutes, this court will take note of such fundamental error as one going to the validity of the final decree, rendition of which is assigned as error, although there was no valid demurrer pointing out such defect in the bill; public policy requiring that no divorce be granted except upon grounds provided by law.

Party cannot have divorce, unless allegations of bill are adapted to case proved; it is established rule of chancery that allegata and probata must correspond, and court pronounces its decree secundum allegata et probata. Although a party may by evidence make out a case which entitles him to relief, yet he can have no decree, unless the allegations of the bill are adapted to the case proved; it being an established rule of chancery practice that the allegata and probata must correspond, and the court pronounces its decree secundum allegata et probata.

Habitual indulgence in ungovernable temper is not ground for divorce unless displayed toward complainant habitually, rendering life intolerable, making marital duties impracticable occasional outbursts of passion and petulance, frequent and unreasonable faultifinding and complaining, but not endangering life or health of complainant, are not cause for divorce. A divorce will not be granted on the grounds of habitual indulgence in violent and ungovernable temper unless that temper has been displayed towards the complainant habitually, and with the effect of rendering life an oppressive and intolerable burden, making it impracticable to discharge marital duties under such burden. Occasional outbursts of passion or petulance, frequent and unreasonable faultfinding and complaining, if only calculated to render the relation between the parties unpleasant and disagreeable or unhappy, but not endangering the safety or health of the complainant, do not furnish sufficient cause for divorce.

Appeal from Circuit Court, Hendry County; George W. Whitehurst, judge.

COUNSEL

Guy M. Strayhorn and E. M. Magaha, both of Ft. Myers, for appellant.

Louis O. Gravely, of Ft. Myers, for appellee.

OPINION

BROWN J.

This appeal is taken by the defendant wife from a decree of divorce awarding the custody of the older children, boys 11 and 15 years of age, to the complainant husband, and awarding the custody of the youngest child, a boy of tender years, to the defendant, and decreeing an allowance to be paid by the husband to the wife of $30 per month for the support and maintenance of said child.

One of the paragraphs of the bill charged:

'That during a greater portion of the last 7 or 8 years prior to the bringing of this bill of complaint defendant frequently indulged in violent and ungovernable temper towards your complainant and his neighbors, frequently indulging in violent sallies of violent and ungovernable temper towards your complainant and his said neighbors, constantly without provocation or excuse quarreling with complainant and his said neighbors, upon one occasion striking your complainant with a stick of stove wood, upon another occasion striking him with a board, and frequently striking complainant with her hand.'

These allegations are not sufficient to constitute a proper charge of 'habitual indulgence by defendant in violent and ungovernable temper,' as provided by the statute (Rev. Gen. St. 1920, § 3191) as one of the grounds for divorce. The word 'frequently' is not synonymous with 'habitually.' It is true that habitual indulgence in violent and ungovernable temper would necessarily imply frequency in the repetition of such conduct; but the mere fact that a person has frequently indulged in such conduct does not necessarily mean that such indulgence has become habitual. If the bill had alleged that the defendant had 'customarily' indulged in violent and ungovernable temper, it would have approached more nearly the full meaning of the word 'habitual,' as used in the statute.

The allegations regarding conduct towards complainant's neighbors are of course irrelevant, and should not have been embraced in the bill.

The point first above mentioned was raised by demurrer interposed by the defendant, which was not supported by affidavit of the defendant that it was not interposed for delay, as required by our rules of procedure. On final hearing, the defendant moved the court for permission to amend this demurrer in this respect, which motion was denied, and the demurrer was stricken on motion of the complainant. In these rulings there was no reversible error. The time for filing demurrer had long since passed, and the laches of the defendant in applying for leave to amend was so great that we cannot hold that the court abused its discretion in denying the motion. This, however, does not change the fact that the bill was fundamentally insufficient in the respect above pointed out, such insufficiency being plainly manifest upon the face of the bill, and the bill, therefore, did not afford a sufficient basis to warrant the chancellor in considering the testimony introduced under the paragraph pointed out as a ground upon which to base his decree. The error being fundamental, this court must take note of it, though not pointed out by a valid demurrer. Public policy requires that no divorce be granted except upon the grounds provided by law, and these grounds must not only be proven, but they must be alleged in the bill. See 19 C.J. 36. Such a defect in the bill goes to the correctness of the decree, and the rendition of the decree here is attacked by one of the assignments of error.

This court is committed to the doctrine that, although the complainant may make out by proof a case which entitles him to relief, yet he can have no decree unless the allegations of the bill are adapted to the case proved, for the court pronounces its decree secundum allegata et probata. If a party intends to rely upon matter as constituting a ground for relief in equity, it ought to be set up in the bill; and if not so set up, though it appears by the evidence in the record to have been proven, it should not be considered at the hearing. See St. Andrews Bay Land Co. v. Campbell, 5...