Kollar v. Kollar
| Decision Date | 13 March 1945 |
| Citation | 21 So.2d 356,155 Fla. 705 |
| Court | Florida Supreme Court |
| Parties | KOLLAR v. KOLLAR. |
Rehearing Denied April 4, 1945.
Appeal from Circuit Court, Indian River County; A. O Kanner, judge.
Sumner & Sumner, of Fort Pierce, for appellant.
George P Garrett, of Orlando, and Denison & Smith, of Fort Pierce for appellee.
On June 30, 1942 Mary Ann Kollar brought suit for divorce against Joseph Blaine Kollar charging him with extreme cruelty and with habitual indulgence in violent and ungovernable temper. Joseph Blaine Kollar answered the bill of complaint, denying the grounds alleged; and, by way of affirmative relief asked for a divorce from the plaintiff on another legal ground for divorce recognized by the statute. Thereafter the parties effected a reconciliation and the bill of complaint and the answer praying for affirmative relief were dismissed.
On August 6, 1943, Mary Ann Kollar again instituted suit for divorce against Joseph Blaine Kollar, alleging that since the reconciliation the defendant by repeated acts of extreme cruelty and violent and ungovernable temper had not only revived the former grounds for divorce set up in the first bill but had been guilty of such subsequent conduct as to justify the granting of a decree of divorce to her upon additional grounds occurring after the condonation. Joseph Blaine Kollar, by answer, denied the allegations of the bill and filed his counterclaim for divorce alleging that not he, but the plaintiff in the suit, had breached the conditions upon which a reconciliation between the parties had been had, by her subsequent misconduct, and that he, and not the wife, should have the divorce on the ground urged by him in the original divorce proceeding.
Testimony was taken on the issues. At the conclusion of the hearing the chancellor found that the plaintiff had not proven her grounds of divorce and that her bill should be dismissed. The chancellor also found that 'the course of behavior pursued by the plaintiff subsequent to the reconciliation constituted such conjugal unkindness toward the defendant as to lift the bar of condonation, and in consequence of that, the defendant is entitled to a decree of divorce.' The final decree granted a divorce to the husband because of acts committed by the wife prior to the reconciliation of the parties. Mary Ann Kollar has taken an appeal from the final decree and has assigned as error the dismissal of her bill of complaint, the granting of a divorce to the defendant, and the award to the defendant of the marital home which was held by the parties as an estate by entirety.
Condonation, in the law of divorce, is the forgiveness of an antecedent matrimonial offense on condition that it shall not be repeated and that the offending spouse shall thereafter treat the forgiving party with conjugal kindness. Williams v. Williams, 23 Fla. 324, 2 So. 768; Fekany v. Fekany, 118 Fla. 698, 160 So. 192; Henderson v. Henderson, 137 Fla. 770, 189 So. 24; Phillips v. Phillips, 146 Fla. 311, 1 So.2d 186; Masilotti v. Masilotti, 150 Fla. 86, 7 So.2d 132; Forde v. Forde, 152 Fla. 142, 10 So.2d 919. So long as there is no breach of the condition upon which forgiveness is granted, the condonation of the matrimonial offense deprives the condoning spouse thereafter to seek a divorce for such offense, as the forgiveness will stand as a complete, absolute and irrevocable bar. Phillips v. Phillips, supra; Masilotti v. Masilotti, supra. But inasmuch as every condonation is on condition, express or implied, that the offense will not be repeated and that the offender will thereafter treat the forgiving party with conjugal kindness, a condoned matrimonial offense may be revived by the subsequent commission of other marital offenses so as to permit a divorce on the ground of all offenses whether committed prior or subsequent to the condonation. Williams v. Williams, supra; Ringling v. Ringling, 119 Fla. 210, 161 So. 406; North v. Ringling, 149 Fla. 739, 747, 7 So.2d 476. Moreover, by the weight of authority , a condoned marital offense may be revived by misconduct of the offending spouse which, though perhaps not sufficient in and of itself to constitute ground for divorce, is of such a grave nature as to raise a reasonable probability that the condition upon which forgiveness was given was not accepted in good faith, or that if the marriage relation is continued a new cause for divorce will arise. See 27 C.J.S., Divorce, pp. 617, 618, § 62(2); 17 Am.Jur. p. 259, Sec. 213; Ringling v. Ringling, supra; North v. Ringling, supra.
We find ample evidence in the record to sustain that portion of the final decree dismissing plaintiff's bill of complaint and awarding the defendant a divorce on the grounds alleged by him. The proof submitted on the question of the breach of condition upon which forgiveness was granted by the husband to his wife was of such a nature as to warrant the chancellor in receiving evidence on the ground of divorce alleged to have been committed by the wife prior to the reconciliation of the parties. The testimony concerning such...
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