Pacheco v. Pacheco

• Decision Date: 07 April 1971
• Docket Number: No. 39021,39021
• Citation: 246 So.2d 778
• Parties: Elva Anne PACHECO, Appellant, v. Ferdie PACHECO, Appellee.
• Court: Florida Supreme Court

Page 778

246 So.2d 778

Elva Anne PACHECO, Appellant, v. Ferdie PACHECO, Appellee.

No. 39021.

Supreme Court of Florida.

April 7, 1971.

Daniel Neal Heller, Miami, for appellant.

Alan R. Schwartz of Horton & Schwartz and Rose & Marlow, Miami, for appellee.

THORNAL, Justice.

By appeal we review a final decree of divorce and related relief whereby a chancellor passed directly on the validity of a state statute. Fla.Const. art. V, § 4(2) (1968), F.S.A.

We must consider the validity of Fla.Stat. § 61.08 (1967), F.S.A. preliminary to our consideration of the final decree which awarded a divorce, child custody and occupancy of the family home to a husband because of the wife's adultery and at the same time denied her request for alimony in view of the provisions of the cited statute.

Appellee Ferdie Pacheco, a medical doctor, sought a divorce from appellant Elva Anne Pacheco on the ground of adultery. The chancellor granted the divorce to the husband because of the adultery of the wife. He denied the wife's counterclaim for divorce on the same ground. Custody of three children, two daughters aged 14 and 10, and a son, 6, was awarded the plaintiff father, who also was granted occupancy of the jointly-owned home of the parties. The father was ordered to pay the mother $500 per month for use of her interest in the home. The wife's claim for alimony was denied. Pending appeal but on his own motion the chancellor stayed that portion of the decree which awarded child custody and occupancy of the home to the father. Mrs. Pacheco attacked the validity of Fla.Stat. § 61.08 (1967), F.S.A. which denies alimony to an adulterous wife. She claims that the 1828 statute has become unreasonable, arbitrary and discriminatory when measured by present day standards. She contends that singling out an adulterous wife is unjust and violates due process and equal protection clauses of the Federal and Florida Constitutions. The chancellor upheld the validity of the statute. The appeal comes directly to this Court under Fla.Const. art. V § 4(2).

Appellant seeks reversal because of the decree sustaining the statute and because of alleged errors in granting the divorce to her husband, and in awarding to him permanent custody of the children and occupancy of the home.

We consider first the claim that Fla.Stat. Stat. § 61.08 (1967), F.S.A. is unconstitutional. The cited statute reads:

'Alimony On Judgment Of Divorce.--In every judgment of divorce in an action by the wife, the court shall make such orders about maintenance, alimony and suit money of the wife, or any allowance to be made to her, and if any, the security to be given therefor, as from the circumstances of the parties and nature of the case is equitable; But no alimony shall be granted to an adulterous wife. In any award of permanent alimony the court has jurisdiction to order periodic payments or payment in lump sum or both.' (emphasis added)

It would be well to bear in mind that we are not confronted by potential problems that Could or Might arise out of the statute but which are not presented by the case sub judice. For example, we are not faced with the claim of a needy husband that he is denied equal protection because the statute does not authorize alimony awards to husbands. This is a problem which some day may become a challenge to advocates of total equality between women and men. It is not an issue in this record.

The appellant levels a broadside against the statute on the basic ground that 'times have drastically changed' since the statute was enacted. She says that there is no longer any reason 'to single out adultery.' She urges 'that adultery today seems, regrettably, to be occurring with greater frequency'. To support this we are referred to Kinsey, Sexual Behavior in the Human Female, 1953, pp. 409--445. To support the claimed discrimination against adultery appellant then suggests that 'The chasteness of women entering marriage today seems seldom required or expected.' To support this we are referred to Kinsey, Sexual Behavior in the Human Male, 1948, p. 364.

The sum of appellant's claim is that we have now become a sexually and morally permissive society; that this new morality has obliterated old standards, and, in short, that we have become immersed by a changing culture that surrounds us. Hence, insists appellant, the Legislature has been stripped of its police power to categorize various types of marital offenses for different treatment. The Kinsey references which by no means have been accepted as compelling authority, are the primary reliance of appellant. We have read the excerpts from Dr. Kinsey which are appended to the briefs. The author there compiles statistics which are supposedly based on studies of human conduct, as well as the behavior of some of our mammalian contemporaries and primates such as sea lions, elephants, horses, monkeys and apes. Actually the cited references do not bear out any claim of a changed social order that compels a change in the law. In fact, they recognize the socially disruptive effect of these extra-marital activities which tend to destroy the stability of family life, generate divided loyalties, and ignore the lessons of history which teach that our western civilization particularly has been constructed on the monogamous pattern of marriage. So much for the sexual behavior habits of man, baboon and rhesus monkeys. We find in them no justification for denying to the Florida Legislature a proper exercise of its police power in an area as sensitive as the divorce laws.

At common law there was no right to alimony at all. Divorce was not a function of the judiciary. Winstone v. Winstone (1861) 2 Swabey & T. 246, 164 English Reprint 989.

American law revised and imported the practice of granting alimony as an incident to divorce from the English ecclesiastical law as it existed until the reform of the English Court system in 1857. (See Clark, The Law of Domestic Relations in the United States. § 14 (1968).) Under this Church law, marriage was a Holy Sacrament and could not be dissolved. It was therefore the practice to grant only divorces A mensa et thoro, authorizing the husband and wife to live apart but retaining the marriage bond. Vernier and Hurlbut, The Historical Background of Alimony Law and Its Present Statutory Structure, 9 Law and Contemporary Problems 197 (1939). In this context, which we today call a 'legal separation,' the husband still had a wife to whom he owed a duty of support. Wilson v. Wilson, 3 Hagg, Ecc. 329, 162 Eng.Rep. 1175 (1830). But since divorce in the ecclesiastical courts was actually only a separation, alimony as we know it was non-existent. Any money the wife got represented the support owed her by virtue of the continuance of the marriage.

For the Dissolution of a valid marriage, or divorce A vinculo matrimonii, resort was had to absolute divorce which was granted only by private acts of Parliament. Vernier and Hurlbut, supra, at p. 198. Unless the act granting the divorce contained a provision for alimony, there was none. See Clark, supra. Thus it is that there was no common-law power in the courts to grant alimony. It is a creature of statute when sought as an incident to divorce A vinculo. Nolen v. Nolen, 121 Fla. 130, 163 So. 401 (1935).

When Fla.Stat. § 2.01, F.S.A. adopted the English common law down to July 4 In addition to other factors, the English courts took fault into consideration when setting the amount of support to be paid. Where the wife was at fault she was entitled to nothing. 1 Blackstone, Commentaries, Bk. I, ch. 15, p. 189 (Gavit ed. 1941). Ecclesiastical courts would never award alimony upon divorce A mensa et thoro to an adulterous wife, for there was no duty for a husband to support an adulterous wife. See, Johnson, Family Law, ch. 8 p. 188 (2nd ed. 1965), Woodward v. Dowse (1861) 10 C.B. (N.S.) 722; Hartley v. Hartley (1955) 1 W.L.R. 384.

1776, it adopted this state of the law Prior to the 1857 reform act. Until 1857, Ecclesiastical courts had complete control over judicial divorce, and a valid marriage was indissoluble except with the aid of Parliament. Holdsworth, A History of the English Law (1903) p. 390; 2 Bishop, Marriage, Divorce and Separation § 851 (1891). Thus, outside of a statutory enactment, only divorce A mensa et thoro existed at common law, with its parallel award of support money.

In enacting Fla.Stat. § 61.08, F.S.A. The Florida Legislature repealed those common law disabilities of the wife who was at fault, with the one exception of adultery. In all other cases the matter rests in the discretion of the chancellor. This was our holding in Kahn v. Kahn, 78 So.2d 367 (Fla.1955), which denied alimony to a wife capable of supporting herself.

We are not here confronted by a statutory deprivation of a common law right. The so-called 'right' to alimony does not exist as an incident to divorce A vinculo unless it is granted by statute. The Florida Legislature has simply decided that the benefit of alimony shall not be available to an adulterous wife, just as it has declined to allow alimony to husbands except in cases of insanity.

To avoid infringement of constitutional rights and liberties the exercise of a state's police powers must be confined to those acts which may reasonably be construed as expedient for the protection of the public safety, welfare and health or morals. Eelbeck Milling Co. v. Mayo,86 So.2d 438 (Fla.1956); Larson v. Lesser, 106 So.2d 188 (Fla.1958); Zabel v. Pinellas County Water and Nav. Control Authority, 171 So.2d 376 (Fla.1965). However, the law-making authority may, under its police power, enact regulations that are not all-embracing. It may legislate with reference to degrees of evil and to situations in which the evil is demonstrably more harmful, without denying equal protection of the law. Beasley v. Cahoon,109 Fla. 106, 147 So. 288 (Fla.1933). There is no merit to appellant's contention that equal...