Lentz v. Lentz, 59-517

• Decision Date: 23 May 1960
• Docket Number: No. 59-517,59-517
• Citation: 120 So.2d 815
• Parties: Marion Iona W. LENTZ, Appellant, v. John F. LENTZ, Appellee.
• Court: Florida District Court of Appeals

Page 815

120 So.2d 815

Marion Iona W. LENTZ, Appellant, v. John F. LENTZ, Appellee.

No. 59-517.

District Court of Appeal of Florida, Third District.

May 23, 1960.

Daniel Neal Heller, Miami, for appellant.

Harry J. Chadderton, Miami, for appellee.

CARROLL, CHAS., Judge.

The appellant Marion Iona W. Lentz, who was the defendant below, has appealed from a final decree of divorce granted to the plaintiff husband on the ground of extreme cruelty, in a suit in the circuit court in Dade County.

Appellant's main contentions are that the testimony of the plaintiff husband was insufficient to establish extreme cruelty, and that there was insufficient corroboration of plaintiff's testimony.

The parties were married in 1935. Three children, all boys, were born of the marriage, their ages at the time of the trial being 15, 19 and 23 years.

The husband testified that the defendant insisted on obtaining a job and working during the day, contrary to his desires and the welfare of the children; that appellant had physically and verbally abused him; that she inflicted certain physical violence upon him by scratching, biting and kicking, called him vile names, falsely accused him of infidelity, belittled him before others, and otherwise nagged and quarrelled with him over their differences. He further testified that the stress of the constant conflicts with his wife ultimately brought on a coronary, or heart attack, which confined him to bed for some six weeks, following which he separated from the wife, and left the marital domicile for Florida.

The defendant wife testified that her job had enabled her to pay the mortgage on their residence, and did not interfere with her duties in the home or care of the children; and that indeed, the plaintiff did not object to her working. She denied that the plaintiff had suffered a heart attack, and testified that 'he had a hypertension which they put him to bed for a week and a half simply as precaution.' She denied striking the plaintiff or laying a hand upon him other than in self-defense. She admitted swearing, but denied 'vulgar' cursing. And she insisted that plaintiff kept late hours; came home with lipstick on his collar, and tried to choke her several times.

The extent and nature of conduct which will constitute extreme cruelty have been set forth by the Supreme Court as follows: In Diem v. Diem, 141 Fla. 260, 193 So. 65, 66, it was said:

'Extreme cruelty as ground for divorce is relative. What constitutes it may be determined by the degree of one's culture, his emotions, nervous reaction or moral sense. It may also be tested by acts or social conduct to which the spouse affected is allergic. The rapid change in social conventions may generate conditions that bring on extreme cruelty. One spouse may indulge a habit to which the other is allergic that would be extremely painful, depending on the nature of the affected spouse. A wife that chews tobacco may strain the connubial relation and the husband that dips snuff may do likewise. Any habitual indulgence on the part of one spouse that causes mental torture, undermines the health, or tends to dethrone the reason of the other, is sufficient to constitute extreme cruelty as ground for divorce.'

In Windham v. Windham, 144 Fla. 563, 198 So. 202, 204, the court said:

'* * * The rule cited as applicable to the facts adduced is that a divorce on the ground of cruelty will be denied where there is no actual bodily violence unless the treatment complained of be such as damages health or renders cohabitation intolerable and unsafe, or unless there are threats of mistreatment of such kind as to cause reasonable and abiding apprehension of bodily violence so as to render it impracticable to discharge marital duties. The following cases are cited: Chisholm v. Chisholm, 98 Fla. 1196, 125 So. 694; Palmer v. Palmer, 26 Fla. 215, 7 So. 864; Beekman v. Beekman, 53 Fla. 858, 43 So. 923; Trigo v. Trigo, 90 Fla. 60, 105 So. 123; Hancock v. Hancock, 55 Fla. 680, 45 So. 1020, 15 L.R.A.,N.S., 670; Hayes v. Hayes, 86 Fla. 350, 98 So. 66; Baker v. Baker, 94 Fla. 1001, 114 So. 661; Kellogg v. Kellogg, 93 Fla. 261, 111 So. 637; Van v. Van, 100 Fla. 612, 129 So. 886; Prall v. Prall, 58 Fla. 496, 50 So. 867, 26 L.R.A.,N.S., 577; Dean v. Dean, 87 Fla. 242, 99 So. 816; Donald v. Donald, 21 Fla. 571; Hickson v. Hickson, 54 Fla. 556, 45 So. 474; Phelan v. Phelan, 12 Fla. 449; Fuller v. Fuller, 23 Fla. 236, 2 So. 426. * * *'

Plaintiff's testimony in the instant case tended to show (1) certain physical violence, and (2) a pattern of other abuse which could constitute mental cruelty. The combination of these grievances, according to the plaintiff's uncorroborated testimony on this point, culminated in a heart attack. Under the authorities quoted above and the other applicable law in this regard (see 10 Fla.Jur., Divorce, etc., §§ 16 et seq.), we must reject appellant's contention that plaintiff's testimony of violence and mental abuse in and of itself would not be sufficient to justify the chancellor's decree of divorce. Taking plaintiff's testimony alone, and assuming that the law made no further requirement of proof to support a divorce, we could not hold the learned chancellor in error.

However, appellant further contends that the plaintiff did not corroborate his testimony with sufficient competent evidence to entitle him to a divorce. It is therefore necessary to examine the testimony offered as corroboration.

At the trial, the plaintiff, in addition to his own testimony, presented two witnesses and two depositions. The witnesses, residents of Dade County, Florida, were the sales manager of his employer and his landlord. They corroborated his Florida residence, and testified as to his wages or income. They gave no evidence to corroborate his testimony relating to grounds of divorce.

Prior to resting, plaintiff presented depositions of John William Snyder and his wife Elizabeth Snyder, in which Snyder testified that he had known the plaintiff for eleven years, though he had only 'met' the defendant four times; that on three occasions he had taken the plaintiff home after playing golf with him, of which he stated as follows:

'On three occasions, returning to his home, at 1934 Sparks Street, Philadelphia, Pennsylvania, after playing golf, she had remarked to him 'What the Hell are you playing golf for when you should be out working'; 'Why the Hell aren't you home taking care of the children'; 'Why the Hell didn't you stay home and look after the family instead of being out golfing.' When she had mentioned that he should be out working she meant his part-time sales job, selling clothing.'

Snyder also testified that he had once been with plaintiff on an afternoon in August, 1953, when plaintiff telephoned his wife, and during the call, was unjustifiably accused by her of being drunk; that he drove plaintiff home about 7:30 or 8:00 o'clock P.M. thereafter on that day and defendant commented: 'You have one Hell of a lot of nerve, coming home at this hour'; and also...