Palmer v. Palmer
| Decision Date | 03 December 1895 |
| Citation | 18 So. 720,36 Fla. 385 |
| Parties | PALMER v. PALMER. |
| Court | Florida Supreme Court |
Appeal from circuit court, Hillsborough county; G. A. Hanson, Judge.
Bill by Frank H. Palmer against Electa E. Palmer for divorce. From a decree for plaintiff, defendant appeals. Reversed, with directions.
Syllabus by the Court
1. In a suit in equity, where contempt proceedings are instituted for violation of the court's orders in the cause, it is error to adjudge the accused party to be guilty, without having had notice of the charge of contempt, and without his being affcrded an opportunity to purge himself therefrom. In such a case, where no notice of the charge of contempt has been given to the accused party, it is error for the court, as a punishment for the contempt, to refuse to hear the party upon the merits of the cause, or to treat him as one in default by ordering testimony to be taken ex parte on the merits, and by the rendition of an ex parte final decree, in disregard of his pleadings on file.
2. The voluntary separation of a wife from her husband while proceedings for divorce are pending between them, where such proceedings are not a sham and pretense, does not constitute such willful desertion as would authorize a divorce therefor.
Sparkman & Sparkman, for appellant.
Macfarlane & Pettingill, for appellee.
On the 31st day of May, A. D. 1890, Frank H. Palmer, the appellee filed his bill for divorce in the circuit court of Hillsborough county against Electa E. Palmer, the appellant in which he alleges that on the 3d day of October, A. D 1885, she willfully deserted and absented hereself from him, without any reasonable cause, and that such desertion has been willful, obstinate, and has continued until the present time,--the date of the filing of this his bill. He further alleges in his bill: That the said Electa in the month of October, A. D. 1885, filed her bill for divorce absolute against him in the same court, which resulted in a final decree of said circuit court, on the 30th day of January, A. D. 1888, in favor of the said Electa, whereby she was absolutely divorced from him, and adjudging to her the care, custody, and control of their three children, and permanent alimony, besides her counsel fees. That he appealed from said final decree to the supreme court of Florida, and that said decree was reversed and the said Electa's bill dismissed upon said appeal by the supreme court, on the 25th day of May, A. D. 1890. 26 Fla. 215, 7 So. 864. That, as the issue of their marriage, they have three children, viz.: Charles Francis, eight years and nine months old; Clarence Myron, six years and a half old; and Ruby, four years and three months of age. That, under the said reversed decree of said circuit court, she has had the care, custody, and control of said children, ever since. That she has neglected the minds and bodies of said children, keeping them closely confined, so that he could not have access to them, and that they have been deprived of necessary food and clothing, and that their education has been utterly neglected, and that she has so little affection for them that she would give them away to strangers, but for the fact that he could then recover them. That since her desertion of him she has conducted herself in an unseemly and unladylike manner, accepting the attention of lovers, and engaging herself to be married to another man. The bill prays for divorce a vinculo matrimonii; for the care, custody, and control of the children; and for an injunction restraining the said Electa from interfering in any manner with his custody of said children.
The defendant demurred to said bill upon the ground, in substance, that upon its face it showed that, during the whole period of time occupied by the desertion therein alleged as the ground of divorce, there was pending a suit for divorce between the defendant and the complainant, and that in law the complainant could not avail himself of her separation from him during that period as such a desertion as would entitle him to a divorce. The defendant also answered the bill, admitting the she lived separate and apart from the complainant, but denying that it was desertion, and justifies her separation by alleging that her litigation against him for divorce was pending during the whole time from October 3, 1885, to May 25, 1890. She denies in her answer all the material allegations of the bill. She also filed a cross bill charging him with adultery, and prays therein for absolute divorce, the custody of the children, and for almony and counsel fees. He answered her cross bill, denying all the allegations thereof. On May 3, 1890, the court below made an order in said cause reciting the fact that neither of the parties could be intrusted with the custody of said children pending the suit, and referring the question to a master to take proof, and make report to the court as to who would be a suitable person, to whose custody they could be commited pending further proceedings in the cause, and that until the coming in of the master's report the children should remain as they then were, and that both the complainant and the defendant should be strictly enjoined and restrained from removing or interfering with said children in any manner whatever, except to visit them at reasonable hours in daylight. Upon the coming in of the master's report, and upon numberous affidavits filed with the judge for and against the proposition to commit said children to the custody of a third party, the court below on June 7, 1890, made an order committing said children to the care and custody of Mrs. Ida J. Kennedy, and directing the sheriff to deliver them over to her; permitting both parties to visit said children at all times during the daytime, but enjoining both of them from interfering in any manner with the said Mrs. Kennedy in the care, custody, management, and control of them, or from removing or attempting to remove them from her premises until the further order of the court. Upon a petition filed by the complainant alleging that the defendant, Electa E. Palmer, had violated the injunction granted on the 3d day of June, 1890, restraining her from removing or interfering with said children, by taking the youngest child, Ruby, away, and secreting it so that neither she nor the said child could be found; and that she was therefore in contempt of court, and praying for a rule upon her to show cause why she should not be punished for such contempt, the judge below made an order on June 10, 1890, directing and requiring that the said...
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