Sahler v. Sahler

Decision Date25 February 1944
Citation154 Fla. 206,17 So.2d 105
PartiesSAHLER v. SAHLER et al.
CourtFlorida Supreme Court

Appeal from Circuit Court, Lake County; J. C. B. Koonce judge.

Clark W. Jennings of Orlando, for appellant.

Walter Warren, of Leesburg, and Clayton J. Weir, of Groveland, for appellees.

WELCH, Circuit Judge.

This is an appeal taken by the defendant and cross plaintiff in the Court below from a final decree in a divorce suit, which decree was signed August 17, 1943, as of July 12, 1943, and filed August 26, 1943. (For convenience, appellant here will be referred to as the defendant, and appellees as the plaintiff.) The plaintiff, below, died July 28, 1943. After the entry of the final decree, the Court, on motion for revivor filed by defenant and cross plaintiff, ordered that the appellees herein be substituted as parties plaintiff, and appointed an administrator ad litem.

On March 23, 1943 the plaintiff below, Jesse D. Sahler, brought a suit for divorce against the defendant below, Meta A. Sahler, in the Circuit Court for Lake County, Florida. On April 15, 1943, he filed an amended bill of complaint, in which the necessary jurisdictional residence qualifications were alleged, and charged the defendant with extreme cruelty and desertion; he also alleged that no children had been born of their union. On May 3, 1943, defendant answered the amended bill of complaint, in which answer she denied knowledge of plaintiff's residence; denied his allegations of cruelty denied that she had been guilty of desertion; and admitted that no children had been born of their union.

Defendant's answer also contained a cross complaint, or counter claim, in which she described certain properties in New York and Florida and alleged that said properties were held by her and the plaintiff as an estate by the entirety. She charged the plaintiff with having been guilty of extreme cruelty to her and of displaying a violent temper toward her, and prayed for a divorce, a division of the property, for alimony and other relief. To this counter claim plaintiff filed a reply in which he admitted the ownership of the property described and denied the alleged grounds for divorce.

On July 12, 1943, the testimony of the parties was taken before the Court and transcribed by the Court reporter. Upon the completion of the taking of testimony the cause was submitted to the Chancellor below on final hearing. At the conclusion of the hearing the Chancellor made certain verbal statements to the effect that a decree of divorce should be granted without specifying, but expressly withholding, in whose behalf the decree should be granted. The Chancellor further announced that the evidence showed that the parties held an estate by the entirety in the property in the States of New York and Florida and expressed the opinion that the property should be equally divided between the parties, except as to one piece of property in the State of Florida, the deed to which included the name of the son of the plaintiff. In that particular case Chancellor stated that the interest of the son should be taken from the interest of the plaintiff husband, and not affect the defendant wife's interest. The Chancellor then expressed the wish that the parties would choose their interest in the estate, and requested the attorneys to draw a decree which would expressly partition the property, or divide the property, between the parties by express description, and to make conveyances. The Chancellor also announced that plaintiff should pay the defendant for her counsel fees and the cost of the suit. No written decree was prepared on that day and presented to the Court, but such preparation was delayed pending agreement between the parties as to the respective properties to be held by each.

After the hearing and on, to wit, July 28, 1943, the plaintiff died; and on, to wit, August 17, 1943, the Chancellor below entered a decree 'Nunc pro Tunc', in which it was decreed that a divorce between the parties be granted as of the date of July 12, 1943, and an allowance was made to the defendant for attorney's fee. The Chancellor further stated in said decree, 'That no decree can now be entered as to a division of the property, leaving that as a matter of law'.

The record contains five assignments of error, but the writer is of the opinion that only the first three assignments are necessary to be discussed on this appeal, which are as follows:

'1. The court erred in entering its final decree of August 17, 1943, filed for record August 26, 1943, whereby defendant's motion to dismiss or abate the cause upon suggestion of the death of the original plaintiff, Jesse D. Sahler, was denied.

'2. The court erred in entering its said final decree, whereby it granted a divorce nunc pro tunc as of July 12, 1943, when the reocrd shows that the original plaintiff, Jesse D. Sahler, died between said July 12 and the date of said decree.

'3. The Court erred in entering its said final decree to the effect that 'a decree of divorce between the parties to this suit be and the same is hereby granted' without specifying in whose favor and against whom said decree was entered, when the record shows that both parties were seeking a divorce'.

Assignments of error numbers one and two may be discussed together; the main question raised by these assignments being whether or not a court of equity can enter a decree of divorce, nunc pro tunc, after the death of one of the parties. Plaintiff (appellee here) contends that the Court announced its decree on July 12, 1943, after the cause had been submitted to the Court, all evidence had been taken, all arguments of counsel had been made, and that nothing remained to be done except the ministerial act of entering the decree, and that therefore the Court had the authority to enter its written decree, 'Nunc pro Tunc', as of the date of the oral announcement. The writer is unable to agree to this contention, but even if that was the law, the record discloses an entirely different state of facts. A casual reading of the 'Nunc pro Tunc' decree will disclose that the Chancellor never announced any final decree at the conclusion of the hearing; construing the announcements made by the Court at the conclusion of the hearing, in the aspect most favorable to the plaintiff, the most that can be said of them is that the Chancellor had announced certain things that he desired to be incorporated in the final decree when it was prepared and entered. The Chancellor stated that he thought a divorce should be granted, but he didn't say to whom it should be granted. He stated that he thought the property should be divided in certain proportions, but he didn't make any division of the property, and he expressed the wish that the parties, through their counsel, would get together and agree on a division. By no rule of construction, or any process of reasoning, known to the writer, could such oral pronouncements by the Chancellor be construed to be a final decree; however, it is the opinion of this writer that had the Chancellor announced a decree, that such decree would not have been effective until it had been reduced to writing, signed by the Judge, and recorded in the Chancery Order Book, as provided in Section 62.16, Florida Statutes 1941, F.S.A. In the case at bar no decree had been signed by the Chancellor, or filed for record, or recorded, and not even a definite pronouncement had been made as to all of the things the final decree would contain if and when it was signed and recorded, prior to the death of the plaintiff.

The writer is of the opinion that the weight of authority in this country relative to the authority of Courts to enter 'Nunc pro Tunc' decrees in divorce suits is to the effect that a 'Nunc pro Tunc' decree cannot be entered where one of the parties to a divorce dies before the rendition of a Decree.

In Annotation 3 A.L.R., page 1421, it is stated,

'Where a party to a divorce suit dies before the rendition of a decree, none can be entered nunc pro tunc'. Citing Wilson v. Wilson, 73 Mich. 620, 41 N.W. 817; Young v. Young, 165 Mo. 624, 65 S.W. 1016, 88 Am.St.Rep. 440; and other authorities.

'Thus where complainant in divorce died after submission, it was error to enter a decree for him, nunc pro tunc'. Citing Wilson v. Wilson, supra; and in Freeman on Judgments, 5th Ed., § 135, it is stated,

'Obviously there can be no judgment of divorce rendered after the death of either of the parties, since that event of itself terminates the status of marriage. Consequently where a party to a divorce suit dies before the rendition of a decree, none can be entered * * *'.

This Court, speaking through Mr. Chief Justice Davis, in Price v. Price, 114 Fla. 233, 153 So. 904, 905, said,

'It is undoubtedly the law that the marital relation, being a purely personal one, is terminated by the death of either of the parties and that a suit for divorce is purely a personal action which cannot survive the death of either party.'

However, in that same case it was also held that an appeal would lie to this Court to reverse an erroneous decree, the...

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43 cases
  • Ryan v. Ryan
    • United States
    • Florida Supreme Court
    • March 30, 1973
    ...who is responsible for the wrongs and injuries complained of, that is one who comes into equity with unclean hands. Sahler v. Sahler, 154 Fla. 206, 17 So.2d 105 (1944); Gordon v. Gordon, 59 So.2d 40 (Fla.1952) cert. den., 344 U.S. 878, 73 S.Ct. 165, 97 L.Ed. 680; Hudson v. Hudson, 59 Fla. 5......
  • Malave v. Malave
    • United States
    • Florida District Court of Appeals
    • October 9, 2015
    ...death, the divorce action ended when the husband died. See Fernandez v. Fernandez, 648 So.2d 712, 714 (Fla.1995) ; Sahler v. Sahler, 154 Fla. 206, 17 So.2d 105, 107 (1944) (citing Price v. Price, 114 Fla. 233, 153 So. 904, 905 (1934) ); Topol v. Polokoff, 88 So.3d 341, 344 (Fla. 4th DCA 201......
  • Williams v. Foerster
    • United States
    • Florida Supreme Court
    • July 21, 1976
    ...who is responsible for the wrongs and injuries complained of, that is one who comes into equity with unclean hands. Sahler v. Sahler, 154 Fla. 206, 17 So.2d 105 (1944); Gordon v. Gordon, 59 So.2d 40 (Fla.1952) cert. den., 344 U.S. 878, 73 S.Ct. 165, 97 L.Ed. 680; Hudson v. Hudson, 59 Fla. 5......
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    • Utah Supreme Court
    • May 1, 1984
    ...advisement at the time of the death of one of the parties and the cause of action was held not to survive the death; Sahler v. Sahler, 154 Fla. 206, 17 So.2d 105 (1944) where no decree had been signed by the chancellor, filed for record, or recorded, and no definite pronouncement had been m......
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