Minor v. Minor, No. 69--366
| Court | Florida District Court of Appeals |
| Writing for the Court | McNULTY; HOBSON; MANN; MANN |
| Citation | 232 So.2d 746 |
| Docket Number | No. 69--366 |
| Decision Date | 13 March 1970 |
| Parties | Betty J. MINOR, Appellant, v. Basil F. MINOR, Appellee. |
Page 746
v.
Basil F. MINOR, Appellee.
Thomas J. Collins, of Collins, Hallett, Ford & Thurman, St. Petersburg, for appellant.
Michael N. Athanason, of Harris, Wing, Clark & Green, St. Petersburg, for appellee.
McNULTY, Judge.
This is a divorce action in which appellant-wife is plaintiff alleging desertion, and the husband has counterclaimed charging adultery. In a pretrial deposition of the wife, she invoked her Fifth Amendment privilege against self-incrimination in response to questions relating to the alleged adultery. The trial court entered an order compelling appellant to answer such questions or suffer the dismissal of her complaint, from which order she brings this interlocutory appeal.
The precise question before us was answered by our Supreme Court in Stockham v. Stockham, 1 upon which the trial court apparently relied in entering the order appealed from. Subsequent to Stockham,
Page 747
however, the Supreme Court of the United States decided Garrity v. New Jersey 2 and Spevack v. Klein 3; and thereafter, our sister court in the Third District, citing Garrity and Spevack, handed down Simkins v. Simkins 4 which departed from Stockham. In Simkins a split court concluded that under the circumstances with which we are here concerned a plaintiff's action cannot be dismissed since it amounts to a 'penalty' and thus anathema to the protective nature of the Fifth Amendment. 5 Judge Pearson wrote a dissent in Simkins with which we concur; and a careful analysis of both Garrity and Spevack, supra, clearly points up the soundness of that dissent.Initially we observe that Garrity isn't strictly on the mark. That was a criminal case in which the defendants were policeman charged with conspiracy to obstruct the administration of the traffic laws of New Jersey. The specific question before the court was the admissibility of certain inculpatory admissions made during a prior investigation of police irregularities in which the defendants were told that pursuant to a New Jersey statute they would be removed from office as police officers if they invoked the Fifth Amendment privilege. True it is, the court observed that the Fifth Amendment could not be so employed as to place one who would invoke it in the position of choosing 'between the rock and the whirlpool,' but the case turned primarily on the involuntary nature of...
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Griffith v. Griffith, No. 2890.
...(equity considerations require complaining spouse in divorce action to answer requests or pursue action no further); Minor v. Minor, 232 So.2d 746 (Fla.Dist.Ct.App. 1970), aff'd 240 So.2d 301 (Fla.1970); Christenson v. Christenson, 281 Minn. 507, 162 N.W.2d 194 (1968) (plaintiff required to......
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Mahne v. Mahne
...Corp., Supra, 95 N.J.Super. at 532--533, 231 A.2d 854; Kaye v. Newhall, 356 Mass. 300, 249 N.E.2d 583, 586 (1969); Cf. Minor v. Minor, 232 So.2d 746 (Fla.Dist.Ct.App.), aff'd, 240 So.2d 301 (Fla.Sup.Ct.1970). Furthermore, Supreme Court cases since Garrity and Spevack have not embraced their......
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City of St. Petersburg v. Houghton, Nos. 78-574
...but our sister court, the Third District Court of Appeal, declined to follow the Stockham case. Thereafter, this court in Minor v. Minor, 232 So.2d 746 (Fla. 2d DCA 1970) again addressed the problem when in a pre-trial deposition of plaintiff/wife she invoked her Fifth Amendment privilege a......
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Zabrani v. Riveron, No. 86-62
...to use his fifth amendment privilege as both a sword and a shield. Stockham v. Stockham, 168 So.2d 320 (Fla.1964); see Minor v. Minor, 232 So.2d 746 (Fla.2d DCA), approved, 240 So.2d 301 Even if Zabrani were a typical defendant, "a defendant's refusal to testify is limited and its invocatio......
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Griffith v. Griffith, No. 2890.
...(equity considerations require complaining spouse in divorce action to answer requests or pursue action no further); Minor v. Minor, 232 So.2d 746 (Fla.Dist.Ct.App. 1970), aff'd 240 So.2d 301 (Fla.1970); Christenson v. Christenson, 281 Minn. 507, 162 N.W.2d 194 (1968) (plaintiff required to......
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Mahne v. Mahne
...Corp., Supra, 95 N.J.Super. at 532--533, 231 A.2d 854; Kaye v. Newhall, 356 Mass. 300, 249 N.E.2d 583, 586 (1969); Cf. Minor v. Minor, 232 So.2d 746 (Fla.Dist.Ct.App.), aff'd, 240 So.2d 301 (Fla.Sup.Ct.1970). Furthermore, Supreme Court cases since Garrity and Spevack have not embraced their......
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City of St. Petersburg v. Houghton, Nos. 78-574
...but our sister court, the Third District Court of Appeal, declined to follow the Stockham case. Thereafter, this court in Minor v. Minor, 232 So.2d 746 (Fla. 2d DCA 1970) again addressed the problem when in a pre-trial deposition of plaintiff/wife she invoked her Fifth Amendment privilege a......
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Zabrani v. Riveron, No. 86-62
...to use his fifth amendment privilege as both a sword and a shield. Stockham v. Stockham, 168 So.2d 320 (Fla.1964); see Minor v. Minor, 232 So.2d 746 (Fla.2d DCA), approved, 240 So.2d 301 Even if Zabrani were a typical defendant, "a defendant's refusal to testify is limited and its invocatio......