Pawley v. Pawley

• Citation: 46 So.2d 464,28 A.L.R.2d 1358
• Parties: PAWLEY v. PAWLEY.
• Decision Date: 06 April 1950
• Court: United States State Supreme Court of Florida

Page 464

46 So.2d 464

28 A.L.R.2d 1358

PAWLEY v. PAWLEY.

Supreme Court of Florida, en Banc.

April 6, 1950.

Rehearing Denied June 9, 1950.

Redfearn & Ferrell and Ward & Ward, Miami, for appellant.

Loftin, Anderson, Scott, McCarthy & Preston, Miami, for appellee.

HOBSON, Justice.

The appellant filed her bill against appellee in the Circuit Court of the Eleventh Judicial Circuit on September 7, 1946. She expressly stated that she 'brings this her suit for alimony unconnected with causes of divorce under the provisions of Section 65.10 of the Florida Statutes 1941, F.S.A.' She alleged 'the defendant since 1939 has been living apart from the plaintiff and the minor children through his own fault * * * that no arrangements have been made by the defendant for the care, maintenance and support of the plaintiff and his minor children * * * that the defendant has made no adequate provisions for the maintenance and support of the plaintiff and minor children' and 'that no regular funds have been set except that the defendant has averaged in contributions to the plaintiff for her support and care and maintenance of the large home and for the education, care and support of the minor children a sum of approximately Eight Hundred ($800.00) Dollars per month, which said funds are not adequate even to maintain the home'. (Italics ours.) She then asserted that she needs a monthly allowance of $5,000.00.

We will assume that these allegations, coupled with allegations of the defendant's ability to pay and of the standard of living which was apparently set by him, are sufficient to bring her case within the purview of Section 65.10, Florida Statutes 1941, F.S.A.

The appellee by his answer denied the pertinent allegations of the bill and then averred that he had obtained a decree of divorce from appellant which operates as a bar to the instant action for it was entered by a Cuban Court of competent jurisdiction. He asserted affirmatively that the parties were not living separate and apart through his fault and that he had always supported his wife and children--not only adequately but--'most generously'. On this subject we quote from his answer, 'In addition to the sums advanced directly to W. D. Pawley, Jr., for care, maintenance, upkeep, education, support and pleasures amounting, for the years 1942 to date, to the sum of $15,496.46, the defendant has contributed to the plaintiff for herself and their minor children, by way of cash advances, purchases of personal property and the payment by him of large indebtednesses incurred by the plaintiff without his authority, the following sums of money:

                1942                     $17,892.58
                1943                      16,976.82
                1944                      55,622.69
                1945                      34,367.49
                1946 (To September 8th)   16,445.12
                                         ----------------
                Total paid 1943-46       141,304.70 *
                

By way of affirmative relief the answer prayed 'that the Court will enter a declaratory decree in this cause adjudging and declaring that the decree entered by the Judge of the First Instance for the Western District of the City of Havana of the Republic of Cuba on May 6, 1943, in that certain cause therein pending wherein William Douglas Pawley was plaintiff and Annie Hahr Pawley was defendant, was legal and valid in all respects * * * that the defendant Annie Hahr Pawley, her agents, representatives, attorneys, servants and employees be enjoined and restrained perpetually from attacking the same or challenging the validity thereof in any respect,' (italics ours) and that the title to certain real estate particularly described therein be decreed to vest in the appellant and appellee as tenants in common and that said property be partitioned in accordance with the law. The final decree did not adjudicate the question presented by the prayer for partition. Therefore, there will be no further reference to that subject.

Subsequently, appellant filed a motion for leave to amend her bill. The proposed amendment set forth that grounds for divorce existed in favor of appellant and listed as such: desertion, extreme cruelty and adultery. Appellant requested support and/or alimony under the provisions of Section 65.09, Florida Statutes 1941, F.S.A. This motion was properly denied. Still later the appellant filed another motion for leave to amend. By this suggested amendment she proposed that she be granted a divorce upon ground number Eight of the Florida Divorce Statute, Sec. 65.04, Florida Statutes 1941, F.S.A. And again there was a prayer for support and/or alimony as provided in Section 65.09, F.S.A. Subsequently and before the Chancellor had acted upon said motion, counsel withdrew it.

It is contended that under all the facts and circumstances the Cuban divorce amounted to a fraud upon appellant's rights and upon the courts of this State. With this contention we cannot agree. The reasons therefor will become apparent.

The Special Master made among other findings the following: 'The proof further shows, however, that the defendant has been voluntarily supporting the plaintiff and their children all through the years amply, and since the acquisition of his so-called fortune, has contributed to their support almost luxuriously. In addition, the testimony taken at the time of the trial showed that he had no intention of cutting the plaintiff off from reasonable support. * * * he has at all times up to the present time, as heretofore stated, been furnishing support money to the plaintiff in this cause, and even beyond her needs.' (Italics ours.)

The Chancellor restated and confirmed the foregoing findings in the following language:

'That the defendant William D. Pawley has always provided adequately for the support of his former wife, the plaintiff, Annie Hahr Pawley, and even since the rendition of the decree of divorce by the Cuban courts he has contributed regularly to her support and in the aggregate has given to her or paid for her account the sum of approximately $170,000, or an average of more than $25,000 a year. * * *

'That the plaintiff's exceptions to the Master's report be, and the same are hereby overruled and the Master's report is approved and confirmed in all respects.'

Section 64.10, Florida Statutes 1941, F.S.A., reads in full as follows: 'If any husband having ability to maintain or contribute to the maintenance of his wife or minor children shall fail to do so, the wife, living with him or living apart from him through his fault, may obtain such maintenance or contribution upon bill filed and suit prosecuted as in other chancery causes; and the court shall make such orders as may be necessary to secure to her such maintenance or contribution.' (Italics ours.)

The legislature never intended that this statute should abrogate the husband's right to fix the standard of living (within his means and within reasonable limitations) or to cause such prerogative to be usurped by the courts of Florida. In the instant case the standard of living as fixed by the appellee is disclosed by the evidence. So, upon a consideration of the appellant's cause of action as alleged by her, it became appropriate for the Chancellor to determine whether Mr. Pawley was in fact maintaining her and the minor children on such plane. As heretofore shown, the Special Master found that the appellee had at all times provided amply for the appellant's needs, as well as for those of the minor progeny. The Chancellor restated such finding and expressly approved and confirmed all of the Master's findings of facts. Moreover, the Master and the Chancellor in substance determined that the parties were not living separate and apart through his (Pawley's) fault. On the Contrary, it was their finding and conclusion that Mrs. Pawley was guilty of constructive desertion as defined by many of our decisions by virtue of the fact that she refused to live with him in China where for business reasons he found it advantageous to live and where he offered to provide a home for Mrs. Pawley. There is substantial, if not conclusive, evidence which sustains the findings as well as that portion of the final decree which ordered the dismissal of the appellant's bill of complaint.

Consequently, the final decree, insofar as it directed the dismissal of the appellant's bill and her cause of action predicated thereon, must be affirmed. Such holding and judgment would be mandatory under our adjudications if there had never been a Cuban divorce. Close v. Close, 158 Fla. 636, 29 So.2d 625; Nelson v. State ex-rel. Quigg, 156 Fla. 189, 23 So.2d 136, and cases therein cited; City of Miami v. Huttoe, Fla., 38 So.2d 819; and Blanchard v. McCord, Fla., 40 So.2d 457. See also Harmon v. Harmon, Fla., 40 So.2d 209.

At this point we are confronted with the question as to whether the Chancellor erred in holding the Cuban divorce valid in all respects and in entering an injunction predicated thereon, perpetually restraining 'Annie Hahr Pawley, her agents, representatives, attorneys, servants and employees * * * from attacking the same or challenging the validity thereof.'

In a consideration of this question we are constrained to advert again to the findings of facts as made by the Master and restated and/or confirmed by the Chancellor. Those findings, with our observations in brackets, are substantially as follows:

(1) Mrs. Pawley knew of the pendency of the divorce action for she was given personal notice of the existence of the Cuban divorce suit on two separate occasions. Substituted service conformable to the law of Cuba was had upon the appellant. [There is no room for the assertion that there was a failure to accord 'due process' unless we should hold that the substituted service reflected by this record, and which tracked Cuban law and had the approval of its court of competent jurisdiction, is inimical to our law or public policy. Further comment upon this subject will be found hereinafter.] However, personal...