Macfadden v. Macfadden
| Citation | 26 So.2d 502,157 Fla. 477 |
| Parties | MACFADDEN v. MACFADDEN. |
| Decision Date | 28 May 1946 |
| Court | Florida Supreme Court |
Rehearing Denied July 2, 1946.
Appeal from Circuit Court, Dade County; Paul D. Barns Judge.
W. F Parker, of Miami, for appellant.
Worley Gautier & Cannon, of Miami, and J. Lewis Hall, of Tallahassee, for appellee.
Bernarr Macfadden sought a divorce from his estranged wife on the grounds that she had treated him with extreme cruelty. After an unsuccessful attack on the bill of complaint the defendant answered, denying the charges against her, but praying nothing save dismissal of the suit. A master was appointed who, about five months and one hundred ninety pages of testimony later, recommended to the court that the plaintiff be awarded a decree of divorce upon, however, his filing an amendment to the bill to meet a certain aspect of the proof. This amendment was not filed, the chancellor deciding that it was unnecessary; the exceptions to the report were denied; and a decree divorcing the parties was entered. This is a skeletal history of the procedure.
One assault on the propriety of the decree is founded on the failure of the chancellor to declare which party prevailed he having merely adjudged 'that the bonds of matrimony * * * existing between the plaintiff * * * and the defendant * * * be * * * dissolved, and a complete divorce a vinculo matrimonii [be] * * * granted unto the parties * * *.' It seems to this writer that a final decree should in all cases clearly designate the successful party and that no exception should be made in a suit for divorce. If in such a contest both parties should appear at fault, or each should have just complaint about the actions of the other, severance of the ties would hardly comport with the principle that where both parties are at fault neither is entitled to relief. Sahler v. Sahler, infra; Wakefield v. Wakefield, 94 Or. 605, 185 P. 921. See 27 C.J.S., Divorce, § 67, page 624. One author has said, using the latter case as a reference, that 'the right to divorce contemplates a guilty party and an innocent party.' Keezer on Marriage and Divorce, page 301. Nor would a decree granting a divorce without designating the guilty party properly safeguard the privilege which the innocent party should enjoy of being recorded as free of wrongdoing. There is no occasion here, though, to upset the decree because it divorces without pointing out that the equities favored the plaintiff. It was he who complained, while his adversary sought no relief. It is better practice even in these circumstances for the chancellor to announce in the decree the name of the winning party, but where, as here, reference to the record itself would disclose that but one party sought relief, the losing litigant may not obtain a reversal because of an omission which amounts more to irregularity than to error. See Sahler v. Sahler, 154 Fla. 206, 17 So.2d 105.
The appellant complains further that the chancellor ruled improperly on a motion to admit in evidence a certain unsigned letter supposed to have been written by appellee. During the cross-examination of this party litigant the letter was exhibited to him and he was asked to identify it, but he declined to make any more definite statement than, 'It looks like my handwriting.' The document was offered for identification, but not in evidence. When the case was being argued before the master, after the close of all testimony, counsel for appellant attempted to have this letter admitted, and the master sustained the objection of the appellee. Later the tender was renewed before the chancellor, and he too declined to consider the missive. Lone excuse given for not offering the evidence in the regular course of the trial was inadvertence of counsel. Considering the reason given for failure to offer the item at the proper time, the unsatisfactory nature of the identification, the view of the master that even if eventually allowed in evidence the letter would not alter his views on the merits of the case, and the final decision of the chancellor which we shall presume correct, we do not find cause to sustain the appellant's contention in this assignment.
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Matlow v. Matlow, 6944
...Apparently this was done under the theory that it amounted more to irregularity than to error as set forth in Macfadden v. Macfadden, 157 Fla. 477, 26 So.2d 502. We will therefore treat the decree, for the purpose of this appeal, in the same The defendant has raised the following three assi......
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Batteiger v. Batteiger
...of the parties, which specific award is necessary under the decisions. Sahler v. Sahler, 154 Fla. 206, 17 So.2d 105; MacFadden v. MacFadden, 157 Fla. 477, 26 So.2d 502; Friedman v. Friedman, Fla.1958, 100 So.2d 167; Howell v. Howell, Fla.1958, 100 So.2d The actions of the attorneys as refle......
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Bennett v. Bennett, 60-702
...party entitled to the divorce and the one to whom it is granted.' See Sahler v. Sahler, 154 Fla. 206, 17 So. 2d 105; Macfadden v. Macfadden, 157 Fla. 477, 26 So.2d 502; Howell v. Howell, Fla. 1958, 100 So.2d 170; Batteiger v. Batteiger, Fla.App.1959, 109 So.2d The remaining points raised an......
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Friedman v. Friedman
...to a divorce to determine from the evidence who is at fault and specifically grant relief to the innocent party. In Macfadden v. Macfadden, 157 Fla. 477, 26 So.2d 502, we again stated that the final decree in a divorce proceeding such as the one now here should specifically designate the su......