Martin v. Martin, 275

• Decision Date: 14 May 1958
• Docket Number: No. 275,275
• Citation: 102 So.2d 837
• Parties: William MARTIN, Appellant, v. Ann Reeaves MARTIN, Appellee.
• Court: Florida District Court of Appeals

Page 837

102 So.2d 837

William MARTIN, Appellant, v. Ann Reeaves MARTIN, Appellee.

No. 275.

District Court of Appeal of Florida, Second District.

May 14, 1958.

D. C. Laird and Thomas M. Langston, Lakeland, for appellant.

R. B. Crawford, Jr., Bartow, for appellee.

KANNER, Chief Judge.

The appellant-husband brought suit for divorce against the appellee-wife, charging extreme cruelty. Appellee, after appellant's case had been presented before a special master, moved that the court dismiss the amended complaint because the testimony was wholly insufficient to support the allegations and because there was no corroboration of the ground for divorce. The special master, who had been appointed to make findings and recommendations to the court, found that the appellant had established a prima facie case for divorce on the ground of extreme cruelty and recommended that appellee's motion for dismissal be denied. The chancellor determined that appellant's testimony and proofs were insufficient and that there was no corroboration showing any conduct on the part of appellee that might tend to defeat the marital relationship and thereupon dismissed appellant's complaint. From this ruling the appeal is instituted.

Appellant urges that the testimony was sufficient to authorize a decree of divorce, that there was sufficient corroborative testimony, and that the court erred in ruling contrary to the special master's findings.

The marriage cohabitation between the parties was brief, lasting about forty-eight days. Both are school teachers. There were two witnesses, including the appellant. The substance of the appellant's testimony is that appellee had, prior to the marriage, agreed to apply for a teaching position in Haines City, home of the appellant, but that after the marriage she made no attempt to do so; that immediately after the marriage appellee smoked cigarettes in the presence of appellant's mother whom they were visiting for a few days while enroute to New York City where appellant was to attend summer school, and this despite appellant's request that she not smoke before his mother; that prior to the marriage appellee had agreed to pool monetary resources with appellant in order to finance his summer school expenses, but that after the marriage she refused to do so; that in New York City she would voice a request to go to one place of amusement, such as a concert or the movies, then change her mind and express a desire to go somewhere else; that she said she did not love appellant; that after leaving him in New York City for Florida to attend her mother who became ill, she sent or caused to be sent a telegram which read, 'Ann taken very ill didnt know anyone after she talked with you last night have to put her in the hospital. We know you cant come but wanted you to know=Mrs Willie M Morris'; that upon his returning to Florida at the end of his school term, some time later, he found that appellee had not been hospitalized; and that these things greatly affected his health of mind and body, as well as his work.

We are not here concerned with physical violence as the basis of extreme cruelty but rather what the Supreme Court of Florida has recognized as 'mental cruelty' as a cause for divorce under the Florida statutory ground of extreme cruelty. Thus the Supreme Court of Florida has interpreted the term 'mental cruelty' to mean a course of behavior by one spouse toward the other such as to imperil the mental and physical health of the other to the extent that maintaining and continuing the marriage relationship is rendered unbearable. Burns v. Burns, 1943, 153 Fla. 73, 13 So.2d 599. Furthermore, no divorce will be granted on the ground of extreme cruelty where there is no actual physical violence unless the behavior complainted of results in injuries to health or causes co-habitation to be intolerable and unsafe, or unless there are threats of abuse which arouse such reasonable apprehension of bodily violence that to execute marital duties is not practicable. Masilotti v. Masilotti, 1942, 150 Fla. 86, 7 So.2d 132. Nor can mere inconvenience, unhappiness, incompatibility of temperament or disposition which render the marriage relation disagreeable or burdensome establish extreme cruelty. Kellogg v. Kellogg, 1927, 93 Fla. 261, 111 So. 637; Chisholm v. Chisholm, 1929, 98 Fla. 1196, 125 So. 694, and Prall v. Prall, 1909, 58 Fla. 496, 50 So. 867, 26 L.R.A.,N.S., 577.

The only witness offered by appellant for the purpose of corroboration testified, in effect, that she did not know appellee personally; that she had seen her; that she had not seen appellant since the wedding until he came to Haines City in the fall to teach school, which...