Martin v. Martin

• Decision Date: 14 July 1953
• Citation: 66 So.2d 268
• Parties: MARTIN v. MARTIN.
• Court: Florida Supreme Court

Page 268

66 So.2d 268

MARTIN v. MARTIN.

Supreme Court of Florida, Division A.

July 14, 1953.

Rehearing Denied July 31, 1953.

J. F. Gordon and Leonard G. Egert, Miami, for appellant.

Sibley & Davis and James Lawrence King, Miami Beach, for appellee.

SEBRING, Justice.

This is an appeal by the defendant below from a final decree rendered in a suit instituted in the Circuit Court of Dade County wherein the plaintiff was granted a divorce on the grounds of desertion and the defendant's claim for alimony and support money was denied.

During the course of the hearing upon which the final decree was predicated the defendant wife introduced into evidence a certified copy of a final decree theretofore rendered in her favor in an equity suit instituted by her in Connecticut, the original domicile of the parties, for the purpose of obtaining support money from her husband. See Martin v. Martin, 134 Conn. 354, 57 A.2d 622, 10 A.L.R.2d 463, for affirmance of decree by the Supreme Court of Errors.

The special master who conducted the hearings found that the Connecticut decree constituted a final adjudication of the events which led up to the separation of the parties, and, upon this and other evidence introduced at the trial, found and recommended that the plaintiff had failed to prove that subsequent to the date of the rendition of the Connecticut decree he had attempted in good faith to effect a reconciliation with his wife, and hence had failed to sustain the charge in his complaint that his wife had been guilty of desertion.

The chancellor sustained exceptions to the special master's report in an order which reads in part as follows:

'I have carefully reviewed the evidence and am of the opinion that the plaintiff's testimony corroborated by that of the witness, James M. Kelly, shows that, after the entry [on March 12, 1947] by the Superior Court in Middlesex County, Connecticut, of its judgment in the non-support action, the plaintiff offered unqualifiedly and unconditionally on several occasions to resume the marital relationship and sought in good faith a reconciliation. The master's finding that the plaintiff has failed to prove the material allegations of his complaint charging the defendant with wilful, obstinate and continuous desertion is not sustained because I am of a contrary view and think that the plaintiff is entitled to a decree of divorce * * *. No financial relief other than costs and counsel fees will be accorded the defendant.'

Based on this order and findings the chancellor entered the decree of divorce from which this appeals has been taken.

Both parties to this appeal agree that the final decree in favor of the wife in the suit for separate maintenance instituted in Connecticut was decisive of the fact that the separation of the parties at the inception was due to the fault of the husband and constituted on his part a desertion of the wife. Anders v. Anders, 153 Fla. 54, 13 So.2d 603; Baptist v. Baptist, 130 Fla. 702, 178 So. 846. The husband maintains, however, that since the rendition of the decree he has sought on many occasions to effect a reconciliation with his wife and resume the marital relationship, and that his wife's refusal to accept his good faith offers in this regard has given him a just cause for a divorce on the ground of wilful, obstinate and continued desertion for a period of more than one year subsequent to the time of his first good faith offer and one year prior to the filing of his complaint in the cause.

In respect to this contention, the general rule appears to be that a separation which is sanctioned and authorized by the decree of a court of competent jurisdiction is neither wrongful nor unlawful and cannot be made a ground for divorce as against the party rightfully acting under the decree. Nelson on Divorce, sec. 4.13. Some courts have held that until such a decree is modified or abrogated by subsequent judicial order, no cause of action for divorce on the ground of desertion can accrue against the party in whose favor the separate maintenance decree was rendered. Weld v. Weld, 27 Minn. 330, 7 N.W. 267; Reibesehl v. Reibesehl, 106 N.J.Eq. 32, 149 A. 823; Jones v. Jones, N.J.Ch., 29 A. 502, 503. The latter decision turned largely upon the fact that a statute in New York, Code of Civ.Proc. § 1767, where the separate maintenance decree had been entered, provided that upon proper application 'a judgment for a separation * * * may be revoked, at any time, by the court which rendered it,' and the court considered this statutory method of annulling the effect of the decree to be exclusive.

We think the better and sounder rule, in the absence of a specific statute to the contrary, is that a wife's rights under an order of separate maintenance which was based simply on the fact of desertion by the husband can be brought to an end by her refusal to accept an unconditional offer of reconciliation made in good faith by her husband, and her refusal thereafter to return to the husband is an abandonment which, when pursued for the requisite period of time, will constitute a just cause for divorce on the ground of desertion. Appleton v. Appleton, 97 Wash. 199, 166 P. 61; Slavinsky v. Slavinsky, 287 Mass. 28, 190 N.E. 826; Rylee v. Rylee, 142 Miss. 832, 108 So. 161; Malouf v. Malouf, 54 Wyo. 233, 90 P.2d 277. Annotation 25 A.L.R. 1047; 61 A.L.R. 1268.

Since there is no showing in the record before us that the law of Connecticut provides a statutory method for the modification of separate maintenance decrees, we think it must be presumed that the issue is governed by the latter rule stated above. And, since the record fails to reflect that prior to the husband's alleged first offer of reconciliation his desertion had continued for such a period of time as to give his wife an accrued cause of action for absolute divorce on the ground of desertion under the law of Connecticut, the state of her domicile, she is not within the rule that after the accrual of such a period the rights of the wife cannot be affected by a mere offer of reconciliation on the part of the erring spouse. Anders v. Anders, supra.

On the issue of the offer of reconciliation by the husband subsequent to the entry of the Connecticut decree, the specific finding of the special master, was as follows: 'In his testimony the plaintiff stated that on many occasions since the trial he has made unqualified offers and requests to the defendant that she come back to live with him and that she has refused. There is no corroboration of this testimony * * * I find that the plaintiff has failed by a preponderance of evidence, to prove that he has attempted to effect a reconciliation or that he has asked the defendant to resume cohabitation since leaving her on September 28, 1946, and therefore that he has failed to prove that the defendant has been guilty of wilful, obstinate and continued desertion of the plaintiff * * *.'

The chancellor overturned this finding and granted a divorce to the husband, because, as he stated in his order, he was of the opinion, from a study of the transcript of the evidence, 'that the plaintiff's testimony, corroborated by that of the witness, James M. Kelly, shows that after the entry * * * [of the Connecticut decree], the plaintiff offered unqualifiedly and unconditionally on several occasions to resume the marital relationship and sought in good faith a reconciliation * * *.'

It is maintained by the appellee that by virtue of prior decisions of this Court the chancellor had no authority to disregard the findings of the special master and to substitute his own opinions or conclusions as to the weight to be given the testimony adduced before the master. The appellee relies upon Harmon v. Harmon, Fla., 40 So.2d 209, and subsequent decisions, to support this position. See Florida National Bank & Trust Co. of Miami v. Brown, Fla., 47 So.2d 748; Hopping v. Lovejoy, Fla., 53 So.2d 704.

The holding in Harmon v. Harmon was that where a competent master is selected by the chancellor and attentively conducts the hearings, thoroughly digests the testimony of the witnesses, and arrives at conclusions which are logical and well supported, his findings should not be disregarded or overruled by the chancellor simply because of an opinion of the chancellor at variance with that of the master. The reason for this holding was that inasmuch as the master has the opportunity to see and hear the witnesses he is in much better position to weight the evidence and determine its credibility than is the chancellor who reviews the case only from a typewritten record.

The factors that moved the court to adopt the rule are not present in the instant litigation. For with the exception of the oral testimony given before the master by the plaintiff in the case, all of the testimony upon which the master arrived at his findings...