Phillips v. Phillips

• Citation: 146 Fla. 311,1 So.2d 186
• Parties: PHILLIPS v. PHILLIPS.
• Decision Date: 28 February 1941
• Court: United States State Supreme Court of Florida

1 So.2d 186

146 Fla. 311

PHILLIPS v. PHILLIPS.

Florida Supreme Court

February 28, 1941

Rehearing Denied March 27, 1941.

En Banc.

Appeal from Circuit Court, Osceola County; Frank A Smith, judge.

W. J Steed and Walter E. Smith, both of Orlando, and William E Leahy, of Washington, D. C., for appellant.

Maguire, Voorhis & Wells, of Orlando, for appellee.

BUFORD Justice.

The appeal brings for review a final decree of divorce and dismissing appellant's cross-bill.

The record presented here consists of approximately two thousand typewritten pages, about ninety per cent of which concerns matters occurring prior to December 13, 1935, when a final decree was entered in the Supreme Court of the District of Columbia in the following language:

'Final Decree

'This cause coming on to be heard at this term of court, and it appearing that the parties have become reconciled, and upon consideration thereof, it is by the Court this 13th day of December, 1935, adjudged, ordered and decreed that this cause be and the same is hereby dismissed; and it is further adjudged, ordered and decreed that upon consent of the parties hereto Rudolph H. Yeatman be and he is hereby awarded a fee in the sum of Seven Hundred and Fifty ($750.00) Dollars as counsel fee for the plaintiff herein.

'Jesse C. Adkins, Justice.

'Consented to:

'R. H. Yeatman,

'Attorney for Plaintiff.

'James A. O'Shea,

'J. H. Burnett

'Attorney for Defendant.'

By the entry of this decree parties thereto were estopped to plead or prove as grounds for divorce anything known to them at that time which had transpired prior thereto unless after that date the conduct of the opposing party was such as to revive the cause or causes of action which existed and was known to the parties prior to that time.

The record shows that in the suit in which the decree, supra, was entered the appellant here was plaintiff and sued for divorce mensa et thoro and for suit money and alimony and also to restrain the defendant, the appellee here, from prosecuting or attempting to prosecute a suit for divorce which he had instituted in Hillsborough County, Florida, and from prosecuting or attempting to prosecute any actions for divorce, limited or absolute, against the plaintiff in any State or Country. The defendant had answered in that suit and, amongst other things, he averred that, 'And he admits that he has from time to time found it necessary to go away in order to take care of the business connected therewith; that he denies that when he left the plaintiff on the 19th of February, 1935, he wilfully abandoned her without lawful excuse of justification; that he admits he went from Augusta to Tampa, Florida, for the purpose of attending to the business of the Show.'

So it is that whether or not E. Lawrence Phillips, the defendant in that suit, had lawful excuse or justification for separating himself from the plaintiff, Almina Dahlin Phillips, was an issue in that suit, and the alleged misconduct of the wife prior to the institution of that suit which was filed on March 15, 1935, was an issue subject to determination in that suit.

That the decree entered in the Supreme Court of District of Columbia is entitled to full faith and credit here is not questioned.

So it is that we hold that the judgment of the Supreme Court of the District of Columbia adjudicated that a reconciliation between the parties as of the date of the decree, supra, had been effected and the parties are bound by that decree.

Recitals in a judgment are presumed to be true and correct unless contradicted by other parts of the record. See 34 C.J. 503, Sec. 795; Crew v. Pratt, 119 Cal. 139, 51 P. 38.

'Persons not speaking when interest commanded them to be silent cannot thereafter be heard to speak when equity and conscience require them to be quiet.' Nichols v. Bodenwein, 107 Fla. 25, 146 So. 86, 659. See also Gray v. Gray, 91 Fla. 103, 107 So. 261.

So it is that whether or not there was in fact a reconciliation between the parties at the time of the entry of the decree, supra, is a matter which neither may now question.

The record shows conclusively that Mrs. Phillips, by consenting to the entry of that decree, lost certain valuable advantages which she had acquired in that litigation, notably, an injunction against her husband from prosecuting a divorce suit against her in any court in the United States except the District of Columbia. She had obtained a decree for maintenance whereby her husband was required to pay her $275 per month, and the exclusive use and occupation of the premises at No. 658 Maryland Ave. N. E., Washington, D.C., except certain parts thereof then otherwise occupied. She also forfeited the right to proceed with that suit to final adjudication on the merits and to have adjudicated therein the marital rights of the parties.

The record shows that the decree enjoining Mr. Phillips from prosecuting or attempting to prosecute any pending suit and ever instituting and prosecuting any suit against the plaintiff for a divorce, either absolute or limited, in any State or territory of the United States of America other than the District of Columbia was entered on the 25th day of March, 1935, and was consented to by notation thereon by counsel for the defendant.

We find in the record no evidence which would warrant the adjudication that Mrs. Phillips was guilty of any acts of cruelty subsequent to the date of the decree based on reconciliation which would revive the cause of action because of things of which she may have been guilty prior to that time and, therefore, what she may or may not have done in that regard prior to the date that decree is a matter with which the courts are not now concerned.

Mr. Phillips had filed a suit for divorce in Hillsborough County, Florida, before Mrs. Phillips filed her suit in the District of Columbia and yet when the suit was filed against him in the District of Columbia he submitted to the jurisdiction of the Court there and in terms admitted that he was a resident of that jurisdiction. Thereafter the decree reciting reconciliation between the parties was entered.

Aside from the efficacy of the decree the record discloses that after the date of the alleged act of cruelty by Mrs. Phillips to her husband there was condonation and forgiveness on his part and he continued to live and cohabit with her until sometime early in 1935. The record is replete with letters and telegrams from him to her dated beginning early in 1934 and continuing until he filed the suit for divorce in Florida in 1935, expressing love and good will toward her, the last of which appears to have been dated Augusta, Ga., March 1, 1935, and is as follows:

'Mrs. Almina D. Phillips

658 Maryland Ave NE Wash DC

Air mail checks for next week as may not be able to leave here until Monday or Tuesday Sorry cant be there Saturday If you get a court notice hold until I get there to explain Hope you Pap and business Okay Going Atlanta Saturday Received Olives letter As ever

'Popsy'.

So it may be said that we have presented in this case both the acts of condonation and a reconciliation subsequent to the commission of the alleged acts of cruelty by the wife to the husband.

In 9 R.C.L. 379, Sec. 170, it is said: 'As a general rule the condonation of a marital offense deprives the condoning spouse of the right of thereafter seeking a divorce for the condoned offense. If there is no breach of the condition after the condonation the forgiveness stands as complete, absolute and irrevocable.'

In Youngs v. Youngs, 130 Ill. 230, 22 N.E. 806, 808, 6 L.R.A. 548, 17 Am.St.Rep. 313, the Court said: 'The evidence tends to show, and is, as we think, sufficient to establish, condonation. The last act of personal violence to the complainant proved took place some time in December, 1886; but the evidence shows that the complainant continued to live and cohabit with the defendant until she left him, about the first of the following March. No subsequent conduct on the part of the defendant is shown which can be held to be sufficient to do away with such condonation, and we think the chancellor was correct in holding it to be a bar to the complaint's right to relief.'

And again in 9 R.C.L. 383, Sec. 176, it is said: 'Cruelty as a ground for divorce is generally a course of conduct rather than a single act; and the rule is that sexual cohabitation after acts of cruelty cannot be considered as condonation in the sense in which it would be after an act of adultery. The effort to endure unkind treatment as long as possible is commendable; and it is obviously a just rule that the patient endurance by the wife of her husband's continuous ill-treatment should never be allowed to weaken her title to relief. On the other hand, it is well recognized that the voluntary marital cohabitation by...