Mirras v. Mirras, 7444

• Decision Date: 27 September 1967
• Docket Number: No. 7444,7444
• Citation: 202 So.2d 887
• Parties: John J. MIRRAS, Appellant, v. Diana Lee MIRRAS, Appellee.
• Court: Florida District Court of Appeals

Page 887

202 So.2d 887

John J. MIRRAS, Appellant, v. Diana Lee MIRRAS, Appellee.

No. 7444.

District Court of Appeal of Florida, Second District.

Sept. 27, 1967.

Sanders, McEwan, Schwarz & Mims, Orlando, for appellant.

Gray, Simonet & Hutchinson, Orlando, for appellee.

HODGES, JOHN G., Associate Judge.

This is an appeal by the appellant, defendant below, from a final decree which granted to the appellee, the plaintiff below, a divorce and awarded to her custody of the minor child of the parties.

From the time of their marriage in Rochester, New York, on March 4, 1962, the parties had resided in the State of New York until October 12, 1964, when the plaintiff-wife, unhappy and disillusioned, departed from the marital domicile and returned to her native state and birthplace at Orlando, Florida, to reside with her mother.

In November 1964 the defendant-husband filed a suit for divorce in New York, alleging that the plaintiff was guilty of adultery. The plaintiff answered through counsel but defaulted at final hearing on October 18, 1965, and an interlocutory decree, which would automatically become final after three months, was entered, awarding a divorce and custody of the minor son to the defendant. The decree entered by the Supreme Court of the State of New York contained the following language:

'* * * divorcing the parties on the ground of the defendant's adultery and permitting the plaintiff to remarry but Forbidding the defendant to remarry any other person during the lifetime of the plaintiff except with the permission of the court * * *.' (italics ours)

Meanwhile, the plaintiff had filed, on July 7, 1965, in the Circuit Court for Lake County, Florida, the complaint in the instant poceeding. The defendant-husband was served by publication and entered a special appearance by his attorney, wherein he sought to abate the action because of the pending suit in New York. The motion was denied, the defendant then answered and the cause came on for final hearing before the Florida Chancellor on January 7, 1966. After completion of testimony, the plaintiff moved, on January 28, 1966, for leave to amend her complaint to allege, as an additional ground for divorce, the granting of the divorce to the defendant by the New York court. Leave to amend was granted and the Court, presumably after studious inquiry, research and judicial reflection, approximately eight months later, on September 8, 1966, entered the final decree which is the subject of this judicial review.

The principal points of inquiry posed for re-examination by us are not new in Florida. Nor are we writing upon a clean slate inasmuch as there have been many apposite, painstaking and articulate decisions placed upon the record by our appellante courts. Realizing that in retracing former tracks we also run the risk of smearing and obscuring, nevertheless it may be helpful to apply to the facts in the instant case the rules enunciated in previous pronouncements in an attempt to further mold and refine their scope and distinction.

The first question facing us is:

DOES A DECREE OR DIVORCE IN NEW YORK PROHIBITING ONE OF THE PARTIES TO REMARRY WITHOUT ORDER OF THE NEW YORK COURT NETITLE SUCH PARTY TO OBTAIN A DIVORCE IN THE STATE OF FLORIDA BASED UPON THE NEW YORK DIVORCE IN FAVOR OF THE OTHER PARTY?

In approaching a resolution of the point involved in this question, we note that appellant and appellee were within the jurisdiction of the New York court and that its decree as to this aspect of the case is entitled to full faith and credit under the Federal Constitution. We also observe, however, that the foreign decree was subject to modification and was incomplete as to the appellee who, unlike the appellant, was not granted a complete divorce in that she was not permitted to remarry.

Section 65.04, Florida Statute, F.S.A., entitled 'Grounds for divorce', provides as follows:

'No divorce shall be granted unless one of the following facts shall appear: * * * (8) That the defendant has obtained a divorce from the complainant in any other state or country.' (Italics ours)

While the full faith and credit clause forbids relitigation by the Florida courts of a decree of divorce by a sister state (See Keener v. Keener, 152 Fla. 13, 11 So.2d 180), the foreign decree is entitled only to the finality to which it is entitled in the state where rendered. (People of State of New York ex rel. Halvey v. Halvey, 330 U.S. 610)

In the Keener case the Supreme Court clearly and incisively proclaimed the scope of Section 65.04(8), Florida Statutes, F.S.A., in this crisp language:

'A literal interpretation might require a pronouncement to the effect that when an absolute divorce is granted to a complainant in another state and the defendant in that case becomes the complainant in a divorce suit brought in this state against the complainant in the former suit, the complainant here would be entitled to prevail.

'We do not think such an interpretation comports with reason and justice. It would sanction the relitigation of divorce proceedings long settled by final decrees of courts of competent jurisdiction; it would permit one to be harassed for suit money in more than one state; there would be no end to divorce litigation; and the full faith and credit clause of the Federal Constitution, Section One, Article Four, Constitution of the United States, would for that case be set at naught.

'If the foreign divorce is valid in the state where secured, it will be recognized under the full faith and credit provision of the Federal Constitution and may not be basis for divorce in this state. If on the other hand jurisdiction of the defendant was not acquired Or the divorce is not effective as to both parties or is for other reasons invalid, then a complainant here would not be bound by it and would be in position to invoke the provisions of the statute in question to be relieved from it.' (Emphasis added)

This language was adopted and confirmed by the Third District Court of Appeal, in Choucherie v. Choucherie, 120 So.2d 821, which also distinctly said:

'It may be presumed that the purpose of the statute is to protect Florida residents from the unhappy situation of being divorced in other states and not divorced in their own state.'

A decision (Pawley v. Pawley, Fla., 46 So.2d 464) specifically upholding, under comity, a husband's Cuban divorce decree, in an action for alimony unconnected with divorce, under Section 65.10, Florida Statutes, F.S.A., prior to its 1965 amendment, recognized that the Cuban decree did not destroy all of the husband's marital obligations and could not bar an action by the wife under Section 65.04(8), Florida Statutes, F.S.A. The judicial recognition was predicated upon the fact that a divorce, while dissolving the marital status, may not extinguish all obligations incidental to it. The same recognition was made by the appellate court in Coppersmith v. Coppersmith, 127 So.2d 711, where it was held that an Ohio decree dissolved the marriage but did not bar the plaintiff's right to alimony and as such would not preclude a proper action under the statutory provision involved.

The language contained in the New York decree in our case dissolved the marriage but limited the right of the plaintiff to remarry. Such a divorce is not permitted under Florida law. (Section 65.03, Florida Statutes, F.S.A.; Hieber v. Hieber, Fla.App., 151 So.2d 646; Greenberg v. Greenberg, Fla.App., 101 So.2d 608)

The facts in the case under review are close enough to those in Givens v. Givens, 121 Fla. 270, 163 So. 574, to place the two cases almost directly in point. In the Givens case, the Virginia court allowed the wife a divorce from bed and board and custody of the children. The husband then brought suit in Florida for divorce under Section 65.04(8), Florida Statutes, F.S.A., alleging the Virginia divorce to the wife. Our Supreme Court, in addition to stating that the final decree was entitled to full faith and credit, held that it constituted sufficient grounds for divorce by the husband in Florida under the statute. The effect of the Virginia decree under the Virginia law was, as to both parties, the same as the effect of the New York decree in the present case is as to the appellee.

The granting by the lower court of an absolute divorce to the appellee on the statutory ground was, therefore, proper and followed the intent of the statute to free the wife from a limited divorce under the foreign decree.

The second question raised for...