Masilotti v. Masilotti
| Decision Date | 13 March 1942 |
| Citation | 7 So.2d 132,150 Fla. 86 |
| Parties | MASILOTTI v. MASILOTTI. |
| Court | Florida Supreme Court |
Rehearing Denied April 20, 1942.
Appeal from Circuit Court, Dade County; Ross Williams, Judge.
Wood & Milledge and Stanley Milledge, all of Miami, for appellant.
Horton & Strahan and Irving Ellsworth Lewis, all of Miami, for appellee.
This cause is here on appeal from a final decree of divorce in behalf of the plaintiff-husband entered by the Circuit Court of Dade County, Florida, on grounds of extreme cruelty and ungovernable temper. The decree awarded the wife permanent alimony of $100 per month, but on a subsequent hearing the permanent alimony was reduced to $10 per week, or approximately $40 per month. The wife has perfected her appeal to this Court and assigns as error the entry of the final decree of divorce on the grounds of extreme cruelty and an ungovernable temper and asserts that the Chancellor below failed to apply to the facts adduced the principle of condonation, as recognized by this Court in Phillips v Phillips, 146 Fla. 311, 1 So.2d 186, 187; Crews v Crews, 130 Fla. 499, 178 So. 139; Ringling v. Ringling, 119 Fla. 210, 161 So. 406; Fekany v. Fekany, 118 Fla. 698, 160 So. 192, and other Florida decisions.
The rule enunciated by this Court is that a divorce granted on the ground of extreme 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. See Windham v. Windham, 144 Fla. 563, 198 So. 202; 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.
If habitual indulgence in a violent and ungovernable temper is relied upon, it is necessary to show that defendant's temper was displayed toward the plaintiff habitually so as to injuriously affect the health, personal safety and conduct or to render life an oppressive and intolerable burden, making it impracticable to perform marital duties. See Godwin v. Godwin, 139 Fla. 309, 190 So. 603; Riesner v. Riesner, 130 Fla. 489, 178 So. 164; Nolen v. Nolen, 121 Fla. 130, 163 So. 401; Croghan v. Croghan, 78 Fla. 455, 83 So. 460; Hickson v. Hickson, 54 Fla. 556, 45 So. 474; Prall v. Prall, 56 Fla. 521, 47 So. 916.
In the case of Phillips v. Phillips, supra, we held that as a general rule the condonation of a marital offense deprived the condoning spouse of the right of thereafter seeking a divorce for the condoned offense. If there is no breach of the condition after the condonation, the forgiveness stands as complete, absolute, and irrevocable. Likewise, condonation is the forgiveness of all antecedent matrimonial offenses on condition that it shall not be repeated and that the offender shall thereafter treat the forgiving party with conjugal kindness.
The record discloses that the parties hereto are Italian-Americans. They married in New York during the year 1906, and have two grown children. The parties moved to Vineland, New Jersey, where the husband obtained employment as a tailor; the wife also obtained employment; and in 1922 or 1923 the husband-plaintiff opened a gents furnishing, tailor shop and cleaning plant. The business was prosperous and expanded, and in 1928 was incorporated as Cumberland Cleaning Company. The wife worked in the cleaning plant along with her husband and several employees.
The acts of extreme cruelty and ungovernable temper largely relied upon occurred after 1906 and prior to the year 1931. There is sufficient testimony in the record to sustain the decree for divorce on these grounds, provided a reconciliation or a condonement thereof was not effected. The wife was of the Catholic faith and did not pray for a divorce, but sought temporary and permanent alimony, suit money and counsel fees.
The husband, in 1921 or 1922, left his wife and cohabited with Lottie LaDore for approximately three months at Fairview, New Jersey, and then separated from her and returned to his original home and cohabited with his wife, the appellant. The furniture was likewise returned to the home of Lena Masilotti. Some four or five years thereafter, he left his wife and cohabited with Catherine Jasinski, and the appellant to this suit moved from their home and lived with her daughter for about four months. After about four months he left the Jasinski woman and returned to the home of his wife. Later he cohabited with Lillian DeMarco, but again returned to live with the appellant. The appellant testified that the acts of cruelty and ungovernable temper charged by her husband against her were caused by her continuous denunciation of her husband's marital infidelity. The husband, in each instance, deserted his mistress, and returned to and continued cohabitation with his wife. The several acts of cruelty and ungovernable temper rendering impracticable a discharge of the marital duties were by the husband condoned when deserting each mistress, and returning to and continuing to cohabit with his wife for a period of many years prior to filing this suit.
The burden of establishing the material allegations of the bill of complaint were on the plaintiff below. He resided with his wife practically five years prior to the filing of the bill of complaint in Dade County, Florida. He came to Florida in September, 1939. The wife received the following letter written by him while in Florida, viz:
'Coral Gables, Fla.
'Nov. 18, 1939
'Dear Wife:
'I have received letters from the lawyer wherein he says that you have threatened to have me arrested and brought back to Vineland all of which is unnecessary because I am ready to come back and probably soon.
'Angelo.'
Plaintiff below testified that one night about five years ago ...
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...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 condonation is on condition, express or implied, that the offense will not be repeated and that the offender will ......