Mitchell v. Mitchell
| Decision Date | 05 March 1926 |
| Citation | 107 So. 630,91 Fla. 427 |
| Parties | MITCHELL v. MITCHELL. |
| Court | Florida Supreme Court |
Suit by Bassett W. Mitchell against Gertrude Mitchell for a divorce. From a decree dismissing the complaint with prejudice, the complainant appeals.
Reversed with directions.
Syllabus by the Court
Divorce should be decreed where court has jurisdiction of subject-matter and parties, and evidence shows existence of grounds alleged and fails to show collusion, and no other bar to divorce is shown. Where the court has jurisdiction of the subject-matter and of the parties in a suit for divorce, and the evidence shows the existence of the grounds alleged in the bill of complaint, and fails to show collusion between the parties in creating the condition constituting the ground or grounds for divorce, and no other bar to the granting of the divorce is shown, a decree of divorce should be granted.
'Willful,' as used in defining desertion, means on purpose, intentional and 'obstinate' means determined, fixed, persistent. As used in our state defining the grounds for divorce the word 'willful' means on purpose, intentional 'obstinate' means determined, fixed, persistent. [Ed Note.-For other definitions, see Words and Phrases, First and Second Series, Obstinate Desertion; Willful--Willfully.]
Appeal from Circuit Court, Palm Beach County; C. E. Chillingworth, judge.
M. D. Carmichael, Erwin T. Osteen, and Rufus M. Robbins, all of West Palm Beach, for appellant.
This case is before the Supreme Court on appeal from a final decree entered by the chancellor in the court below, which decree is in the following language, to wit:
'This matter came to be heard before the court, and it appeared that on June 12, 1923, bill of complaint, waiver, answer, and application for order of reference were filed before the then circuit judge, and order of reference and final dcree of divorce were signed by him on the same day; that none of the papers were placed on record, awaiting the payment of some $20,000 alimony by the complainant; that all of those instruments were presented to the court on February ---, 1924, when the writer declined to enter final decree of divorce, whereupon all papers were filed in the office of the clerk of the circuit court, except the final decree bearing date June 12, 1923; that testimony was taken before this court on March 8, 1924, and then the matter came on for final hearing, and the court, having fully considered this cause and the testimony, and being fully advised in the premises doth find: That the parties brought about the separation for one year, mutually, and for the purpose of procuring a divorce, and that in the alleged desertion and bringing of this suit there is collusion between the parties; that any decree of divorce entered in this cause would simply be a 'divorce by consent,' contrary to public policy, as well as contrary to the purpose and intent of the laws relating to divorce; that the complainant has not established the existence of any willful, obstinate, and continued desertion of the complainant by the defendant for one year. Therefore, it is.
'Ordered, adjudged, and decreed that the bill of complaint be and the same is hereby dismissed with prejudice.
'Done and ordered at West Palm Beach, Florida, at chambers, this 2d day of April, A. D. 1924.
We have carefully considered the testimony produced before the chancellor.
The rule is, as stated in the case of Wolkowsky v. Kirchick, 95 So. 611, 85 Fla. 210, 'where the decree of the chancellor is not supported by, but is contrary to, the evidence, it will be reversed by this court on appeal,' which rule has obtained for many years in this jurisdiction.
In the opinion, this court, speaking through Mr. Justice Parkhill in the case of Hudson v. Hudson, 51 So. 857, 59 Fla. 529, 29 L. R. A. (N. S.) 614, 138 Am. St. Rep. 141, 21 Ann. Cas. 278, the words 'willful' and 'obstinate' were defined thus: 'Willful means on purpose, intentional.' 'Obstinate means determineD fixed, persistent.'
The definitions above quoted were supported by numerous authorities, cited by Mr. Justice Parkhill, and thereafter have been uniformly accepted as the proper definitions of these words as used in the statute relative to grounds for divorce.
We find no evidence in the record which proved or tends to prove any mutuality in the separation or that the separation occurred by an agreement between the parties for the purpose of...
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Jackson v. Edwards
...damages.' And in several cases we have held that the word 'wilful' means 'intentional', that is, 'on purpose'. See Mitchell v. Mitchell, 91 Fla. 427, 107 So. 630; Williams v. State, 92 Fla. 648, 109 So. Love v. State, 107 Fla. 376, 144 So. 843. In the case last cited it was held that 'wilfu......
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