Ringling v. Ringling

• Decision Date: 01 May 1935
• Citation: 119 Fla. 210,161 So. 406
• Parties: RINGLING v. RINGLING.
• Court: Florida Supreme Court

161 So. 406

119 Fla. 210

RINGLING v. RINGLING.

Florida Supreme Court, Division B.

May 1, 1935

Rehearing Denied June 4, 1935.

Action by John Ringling against Emily Ringling. From orders denying defendant's motion to dismiss the bill of complaint and denying motion to strike certain paragraph of the bill of complaint, defendant appeals.

Affirmed.

See also. 158 So. 125. Appeal from Circuit Court Sarasota County; Paul C. albritton, judge.

COUNSEL

Loftin, Stokes & Calkins, of Miami, for appellant.

Henry L. Williford and James E. Kirk, both of Sarasota, for appellee.

OPINION

BUFORD Justice.

The appeal here is from an order denying motion to dismiss the bill of complaint and from an order denying motion to strike paragraph IV of the bill of complaint in a suit brought by appellee against appellant for divorce. The motion to dismiss was on three grounds, which were as follows:

'1. The purported facts attempted to be alleged in the bill of complaint do not, in law, constitute the ground for extreme cruelty.

'2. The purported facts attempted to be alleged in the bill of complaint do not, in law, constitute the ground of habitual indulgence by defendant in violent and ungovernable temper towards the plaintiff.

'3. The plaintiff has, by the allegations of generalities and conclusions of fact and conclusions of law, attempted to maintain specific allegations which are, in themselves, insufficient to constitute a ground for divorce in Florida, and the said specific allegations may not be amplified by generalities and allegations of conclusions so as to make them a ground for divorce in this State.'

Motion to dismiss under the 1931 Chancery Practice Act (Laws 1931, c. 14658) takes the place of, and is considered in the light of, a demurrer.

There was also a motion to strike portions of the bill of complaint which was denied. The motion to strike was on the following grounds:

'All of the matters and things alleged in Paragraph IV as constituting extreme cruelty and the habitual indulgence in a violent and ungovernable temper by the defendant towards the plaintiff, which are alleged to have occurred prior to September 1, 1933, the date on which, as is alleged in said bill of complaint, the plaintiff dismissed his first bill for divorce filed on July 26, 1933, and resumed his marital relations with the defendant, on the following grounds:

'1. It affirmatively appears from the said bill of complaint that the plaintiff condoned the alleged acts and conduct on the part of the defendant;

'2. It affirmatively appears from the said bill of complaint that the plaintiff resumed his marital relations with the defendant on September 1, 1933.'

We feel that it could serve no useful purpose to quote here the allegations of paragraph IV of the bill of complaint. It is sufficient to say that on authority of the opinions and judgments in the cases of Ray v. Ray, 63 Fla. 558, 57 So. 609, Erdmans v. Erdmans, 90 Fla. 858, 107 So. 188, and Kellogg v. Kellogg, 93 Fla. 261, 111 So. 637, the allegations of the bill of complaint are sufficient to charge extreme cruelty and habitual indulgence in violent and ungovernable temper. See, also, Gill v. Gill, 107 Fla. 588, 145 So. 758.

The question as to whether or not the alleged and admitted condonation occurring subsequent to the filing of a bill of divorce by the complainant which had been dismissed at the behest of complainant upon reconcillation being reached on September 1, 1933, precludes the complainant from the right to file this bill of complaint which was filed on March 3, 1934, and therein alleging as ground for divorce the same misconduct which was alleged in a prior bill of complaint, together with charges of subsequent similar conduct, has been determined adversely to appellant's contention by this court in the case of Williams v Williams, 23 Fla. 324, 2 So. 768, 772, in...