Overly v. Overly

• Court: Florida Supreme Court
• Writing for the Court: SEBRING; ROBERTS
• Citation: Overly v. Overly, 66 So.2d 706 (Fla. 1953)
• Decision Date: 03 July 1953
• Parties: OVERLY v. OVERLY.

Page 706

66 So.2d 706

OVERLY v. OVERLY.

Supreme Court of Florida, Division A.

July 3, 1953.

Neal D. Evans, Jr., Jacksonville, for appellant.

P. Donald DeHoff, Jacksonville, for appellee.

SEBRING, Justice.

The appellant, James H. Overly, in March 1952, filed a bill of complaint for divorce against appellee, Virginia Overly, in Duval County, Florida, on the ground of extreme cruelty. The wife filed affirmative defenses setting up the pendency of a Wisconsin divorce action instituted by her in June 1951 on the same grounds asserted by the plaintiff in the Florida suit. In the Wisconsin proceeding personal service was had upon the appellant, and he filed an answer therein prior to the time he instituted his suit in Florida.

Testimony in the Florida suit was taken before a Master, and on October 17, 1952, he filed his report recommending that a divorce be granted the husband, on the ground that he had established his cause of action and that the mere pendency of the Wisconsin suit for divorce did not preclude the entry of a decree here.

On November 10 a final judgment of divorce in favor of the wife was entered in the cause in progress in Wisconsin, and on the same date the wife's attorney in Wisconsin mailed a certified copy of the judgment to the clerk of the circuit court in Duval County, together with letters of transmittal to both the clerk and the judge requesting that said judgment be considered in the Florida suit. On November 14, at final hearing on Mr. Overly's exceptions to the master's report in his suit, the court considered the Wisconsin judgment, filed it in evidence, and entered a final decree dismissing the complaint with prejudice on the ground that the matter of divorce or termination of the marital status between the parties had been adjudicated by the final decree entered in Wisconsin prior to the final hearing in the Florida proceeding.

No attack was made by the plaintiff in the instant case upon the jurisdiction of the Wisconsin court to entertain the suit instituted there. Hence it must be assumed that the Wisconsin court had jurisdiction of both parties to the divorce proceeding brought in that state. Under such circumstances the foreign decree of divorce is entitled to recognition in Florida under the full faith and credit provision of the federal Constitution. Keener v. Keener, 152 Fla. 13, 11 So.2d 180; Beckwith v. Bailey, 119 Fla. 316, 161 So. 576. 'A valid decree of divorce rendered in a jurisdiction other than that in which the subsequent decree is sought is a bar to the subsequent proceedings * * * and the judgment or decree first rendered dissolving the marriage relation concludes the question * * *.' 17 Am.Jur., p. 241. See also ...