Mcmillan v. Mcmillan

• Decision Date: 25 June 1935
• Citation: 120 Fla. 209,162 So. 524
• Parties: McMILLAN v. McMILLAN.
• Court: Florida Supreme Court

162 So. 524

120 Fla. 209

McMILLAN v. McMILLAN.

Florida Supreme Court, Division B.

June 25, 1935

Separate suits by Florence McMillan against D. W. McMillan for alimony and suit money without divorce, and by D. W. McMillan against Florence McMillan for divorce, which suits were consolidated and the suit for divorce by D. W. McMillan against Florence McMillan made the main suit. From a decree granting a divorce to D. W. McMillan, Florence McMillan appeals.

Affirmed.

See also, 114 Fla. 763, 154 So. 850. Appeal from Circuit Court, Escambia County; L. L. Fabisinski, judge.

COUNSEL

Beggs &amp Beggs and E. C. Maxwell, all of Pensacola, and W. F. Spencer of Birmingham, Ala., for appellant.

William Fisher, of Pensacola, for appellee.

OPINION

TERRELL Justice.

August 12, 1933, appellant, as complainant, instituted her suit (in the circuit court of Escambia county) for alimony and suit money without divorce against appellee, as defendant. August 22, 1933, appellee countered with a suit for divorce against appellant in the same court. August 31, 1933, the chancellor entered his decree consolidating the two causes and further decreeing that appellee's suit for divorce be the main suit, thereby placing appellant in the position of defendant and cross-complainant and appellee as complainant anc crossdefendant.

The bill of complaint for divorce on the part of appellee was amended, a motion to strike was denied, testimony was taken before the chancellor, and on final hearing the relief prayed for was granted. The instant appeal was prosecuted from that final decree.

Five errors are assigned and argued at length. They all turn on the question of whether or not the divorce in favor of appellee was providently granted.

The prayer for divorce was grounded on adultery. The bill of complaint in effect alleges that the defendant committed adultery with Wade H. Oldham on (1) an automobile trip from the summer house of the McMillans in Connecticut via Youngstown, Ohio, to Birmingham, Ala., in the summer of 1931; (2) at Valparaiso Inn, Valparaiso, Fla., where they spent two or three days on or about Labor Day, 1932; (3) in November, 1932, at the Tutwiler Hotel, Birmingham, Ala., the defendant occupying suite No. 922 where she entertained Oldham and others; (4) on January 11, 12, and 13, 1933, at the Tutwiler Hotel, birmingham, Ala., the defendant occupying suite No. 960 where she entertained Oldham and others; (5) on March 4, 5, and 6, 1933, at the Demopolis Inn, Demopolis, Ala., where defendant and Oldham spent from noon Saturday to Monday morning in the same room; (6) on numerous occasions at Fairyland Cottage No. 8, Fairyland, Ga., on Lookout Mountain between June 2 and July 10, 1933; (7) on June 30, 1933, at Gadsden, Ala.; and (8) at numerous other places in Alabama and Georgia in 1932 and 1933 where defendant and Oldham made week-end trips and visits secretly.

To prove adultery the law does not require that specific acts be attested by eyewitnesses. The rule approved by the weight of authority is that if the circumstances proven are such as to lead the guarded discretion of a reasonable and just man to the guilt of the participants that is sufficient. Heath v. Heath, 103 Fla. 1071, 138 So. 796, 82 A. L. R. 537; Tharyer v. Thayer, 101 Mass. 111, 100 Am. Dec. 110. In Atha v. Atha, 94 N. J. Eq. 692, 121 A. 301, it was held that if desire and opportunity were proven adultery would be presumed. The following cases support the general rule: Stackhouse v. Stackhouse (N. J. Ch.) 36 A. 884; Allen v. Allen, 101 N.Y. 658, 5 N.E. 341; Houlton v. McGuirk, 122 La. 359, 47 So. 681, 16 Ann. Cas. 1117; Dicus v. Dicus, 131 Md. 87, 101 A. 697; Wille v. Wille, 88 N. J. Eq. 581, 103 A. 74; Kerr v. Kerr, 134 A.D. 141, 118 N.Y. S.801.

The evidence discloses that appellant and appellee were married in Birmingham, Ala., in March, 1928, and soon after took up their residence in Pensacola, Fla., where they continued to reside until January 4, 1933, the date of their separation. Appellee had been a citizen of Pensacola all his life, had been a practicing physician there for many years, but was a man of means, and at the time of his marriage to appellant had retired from the active practice of his profession but was engaged in other business activities.

No acts of adultery on the part of appellant with Oldham were proven by eyewitnesses, but form the summer of 1931 to the summer of 1933, about the time the bill for divorce was filed, a course of suspicious and surreptitious conduct by them is so conclusively established that adultery as a deduction necessarily follows. It was proven that Oldham visited the Connecticut summer home of the McMillans in the summer of 1931 after Dr. McMillan returned to Florida, and that Mrs. McMillan returned in an automobile to Birmingham, via Youngstown, Ohio, with him. It was also proven that Oldham visited Mrs. McMillan at Elkmont, Tenn., under suspicious circumstances, in the summer of 1932. It was proven that Mrs. McMillan met Oldham at the railway station in Pensacola and drove with him fifty miles to Valparaiso, where they spent two or three days at the same hotel in rooms conveniently located to each other and under questionable circumstances. The Tutwiler Hotel incidents of November, 1932, and January, 1933, were proven beyond question. It was proven that Oldham spent every week end with Mrs. McMillan from June 2 to July 10, 1933, at Cottage No. 8, Fairyland, Lookout Mountain; that they played golf together; that he was introduced there and was known as Mrs. McMillan's husband; and that they spent the nights in the same cottage and in the same bedroom. It was proven that they spent the night of June 30 at the Reich Hotel in Gadsden, Ala., registered under assumed names, and had rooms on the same floor in close proximity. It was proven that they met by appointment at Demopolis, Ala., registered at the Demopolis Inn under assumed names, and stayed there from noon Saturday until early Monday in the same room with only one bed, and had all their meals served in the room. During all these intervals they were passing letters frequently and their conduct was in other respects such as to excite suspicion.

Appellant and Oldham took the stand and attempted an explanation of all these escapades and denied positively that any illicit relations were engaged in by them. Their explanation or denial is of course not beyond the realm of the possible, but it was a blatant assault on approved moral standards. Their conduct may have been the flower of one of those platonic friendship affairs that are said to generate in certain levels of the social strata but are unknown to those patterns of social relations that gave rise to the rule of law announced and approved in this opinion. The chancellor did not believe their story, and since his decree finds ample support in the record we feel constrained to let it stand.

But appellant contends that even though appellee proved adultery he cannot prevail in this suit because he is guilty of conniving at all he charges against her and joined in a conspiracy to force appellant from his home. Appellant also pleads justification and recrimination and charges that appellee did not approach the court with clean hands.

The general rule is that to constitute a defense by recrimination the misconduct that defendant charges complainant with must be such that if proven will afford defendant a ground for divorce. Has Mrs. McMillan charged and proven as required by the rule in this case? Chisholm v. Chisholm, 105 Fla. 402, 141 So. 302; Krasnow v. Krasnow, 280 Mass. 252, 182 N.E. 338; Tebbe v. Tebbe, 223 Mo.App. 1106, 21 S.W.2d 915; Roberts v. Roberts, 204 Wis. 401, 236 N.W. 135; Carmichael v. Carmichael, 106 Or. 198, 211 P. 916; McCannon v. McCannon, 73 Vt. 147, 50 A. 799; Reeves v. Reeves, 106 N. J. Eq. 532, 151 A. 474; 19 C.J. 94.

'To connive at' means to feign ignorance of, to wink at, to pretend not to know, to covertly approve by passive consent. If forced upon her, adultery on the part of the wife does not constitute ground for divorce, neither can the husband claim a divorce on the ground of adultery when his conduct conduced to or aided it. Neglect of the husband to provide support for his wife or in any manner to concern himself about her may constitute misconduct conducing to her adultery, but the mere fact of living apart is no justification for it. 10 C.J. 77, par. 172.

In 19 C.J. 91, it is pointed out that mere passive permission or misconduct does not make the party giving the permission guilty of connivance if he does nothing to encourage the other to commit the offense, and does not directly or indirectly throw opportunities therefor in the way. Connivance will not be implied form mere negligence, folly, dullness of apprehension, or indifference; nor as a rule can connivance be implied from desertion, though under some circumstances it may be.

In Wilson v. Wilson, 154 Mass. 194, 26

In Wilson v. Wilson, 154 Mass. 194, 28 Rep. 237, it was held that the fact that a husband suspects his wife of infidelity, watches her for the purpose of obtaining proof of it, and stands by and sees her go with another man, is not sufficient to support a charge of connivance, although he in fact wishes her to commit adultery in order that he may obtain a divorce. Herriford v. Herriford, 169 Mo.App. 641, 155 S.W. 855; Farwell v. Farwell, 47 Mont. 574, 133 P. 958, Ann. Cas. 1915C, 78; Puth v Zimbleman, 99 Iowa, 641, 68 N.W. 895.

The record discloses that Mrs. McMillan commenced making clandestine engagements with Oldham and meeting him secretly at different places long prior to her separation from Dr McMillan, and that such engagements continued up to the time the bill for divorce was filed. There...