Kennedy v. Kennedy

• Decision Date: 16 April 1931
• Parties: KENNEDY v. KENNEDY.
• Court: Florida Supreme Court

134 So. 201

101 Fla. 239

KENNEDY v. KENNEDY.

Florida Supreme Court

April 16, 1931

Commissioners' Decision.

Suit by Mabel Kennedy against Louis Kennedy, wherein defendant filed a cross-bill. Decree for the complainant, and the defendant appeals.

Decree reversed in part, with directions, and in part affirmed. Appeal from Circuit Court, Sarasota County Paul C. albritton, judge.

COUNSEL

H. S Glazier, of Tampa, for appellant.

Frank Redd, of Sarasota, for appellee.

OPINION

ANDREWS C.

This cause is here for review from a decree awarding a divorce custody of two minor children, and monthly support for them, also solicitors' fees and costs, to appellee, based upon her bill of complaint as amended.

To complainant's original bill alleging desertion as the only ground, defendant filed his answer denying the facts set up by complainant and at the same time filed a cross-bill seeking a divorce from complainant on the ground of desertion.

After taking the testimony of two witnesses before the chancellor, complainant's solicitor moved to amend her bill by adding the ground of 'extreme cruelty,' and on the same day an amendment was presented and filed over the objections of defendant, containing not only the additional ground of extreme cruelty, but a third ground of 'habitual intemperance.' This furnishes the basis of the two first assignments of error.

The ground of desertion being apparently abandoned, the decree was necessarily based either on the ground of extreme cruelty or habitual intemperance as contained in the amendment.

Courts of this state have a broad discretion in allowing amendments, and, where no settled rule of law or procedure is plainly violated, or a sound judicial discretion abused, the action of the court in permitting amendments will not be disturbed. Guggenheimer & Co. v. Davidson, 62 Fla. 490, 56 So. 801; Warren v. Warren, 73 Fla. 764, 75 So. 35, L. R. A. 1917E, 490. As to chancery causes, see section 4902, Compiled General Laws of Florida 1927, and, as to other civil causes, see section 4295, Compiled General Laws of Florida 1927. See, also, the case of Town of Punta Gorda v. Charlotte Realty & Inv. Co., 93 Fla. 253, 111 So. 631. Application should be made promptly after the necessity for the amendment has been discovered. Griffin v. Societe Anonyme La Floridienne J. Buttgenbach & Co., 53 Fla. 801, 44 So. 342.

Appellant contends that the amendment in substance is the institution of a new suit, because the grounds for divorce relied upon in the amendment are based upon entirely different grounds to that designated in the original bill. The general rule heretofore announced by this court is that, where the amended bill of complaint in effect seeks the same relief and the allegations do not assert an entirely different and inconsistent cause of action, which is so palpably inconsistent with or repugnant to the original bill that no decree can properly be entered upon the amended bill, the amendment should be allowed. Atlantic Coast Line R. Co. v. Feagin, 93 Fla. 1015, 113 So. 89; Guggenheimer & Co. v. Davidson, supra.

Where the original bill of complaint charges desertion and seeks to obtain a divorce, support, attorney's fee, and costs, and the amended bill seeks the same relief, but based upon different grounds, such amended bill is not in effect the institution of a new and materially different suit which is so palpably inconsistent with or repugnant to the original bill that no decree can properly be entered upon such amended bill. This would especially be true where the original ground of desertion is based upon allegations that plaintiff was driven away from the home, in that testimony adduced in support of either of the grounds would be of a kindred nature tending to render marital life intolerable. The procedure was irregular but not necessarily erroneous or prejudicial.

'Mere irregularities in procedure are not cause for reversal, where no showing is made that either party was prejudiced thereby.' Baker v. Baker, 94 Fla. 1001, 114 So. 661, 662.

It is observed that, in support of the amended ground of extreme cruelty, there are alleged only two rather isolated special instances: (1) On or about August 25, 1925, while attending a 'box supper' (after which marital relations were resumed); and (2) December 13, 1927, when a misunderstanding resulted in some violence on both sides, both apparently equally blamable, at which time complainant again left the home with both children, ages about 5 and 9 years, respectively, at the time of the separation.

In the case of Hayes v. Hayes, 86 Fla. 350, 98 So. 66, the ground was 'extreme cruelty,' and the instances relied upon occurred in 1917 and 1918; this court held that a single act of violence is not 'nor are isolated instances of cruelty repeated at long intervals sufficient grounds for divorce.' In that case this court said that our statute permits the dissolution of the marriage contract only in cases where the purpose of the relation has failed or 'been defeated by grave and serious misconduct'; also that on application for divorce 'such misconduct should be established by competent evidence of a full and satisfactory nature.'

In a similar case of Williams v. Williams, 23 Fla. 324, 2 So. 768, this court said: 'In this state and others the rule is extended to mental as well as bodily injuries. If the mental injury is not of itself sufficient to constitute cause of divorce, it may serve to aid bodily injury to constitute such cause.'

There does not appear to be any serious mental injury to complainant involved here.

This rule may be further affected and more strictly applied where the welfare of minor children is most seriously affected by the separation of parents, for causes over which the children have no control. This court has held that the proper custody of children is a legitimate subject for the chancellor at any time, as that power, even after final decree, is reserved to alter or modify the decree in this respect. Meadows v. Meadows, 78 Fla. 576, 83 So. 392; McGill v. McGill, 19 Fla. 341; Harris v. Harris, 65 Fla. 50, 61 So. 122. Such children are and continue to be virtually wards of the court, and the court not only has the power, but it is its duty, to supervise their welfare, when the matter is properly brought to its attention. 19 C.J. 341, § 789, and page 349, §§ 808 and 809.

The final decree awards custody of the two minor boy children of 8 and 11 years of age at the time of the decree to the mother for the eight months of the school term, at which time defendant is required to pay complainant $25 per month, and that for the remaining four months the children are to be in custody of defendant which indicates clearly that the chancellor did not consider the defendant an improper person to have control, or that he is habitually intemperate.

While a marriage is defined as a 'civil contract' under the common law, which prevails in this state, yet it differs from ordinary bilateral contracts, in that it cannot be terminated by mutual consent or understanding, nor by the will of either party. It remains executory until death or the majesty of the law intervenes to sever the bonds which have long been acknowledged by our people as one of the sacraments specifically recognized by divine law. Even as a civil contract, society in the person of the state becomes a most important and legal party in every marriage, and our courts have not so far sanctioned the severance of the bonds of marriage without a...