Scott v. Scott

• Decision Date: 25 April 1950
• Citation: 45 So.2d 878
• Parties: SCOTT v. SCOTT.
• Court: Florida Supreme Court

Page 878

45 So.2d 878

SCOTT v. SCOTT.

Supreme Court of Florida, Division B.

April 25, 1950.

W. Fred Turner, Panama City, for plaintiff.

Joseph I. Mathis, Panama City, for defendant.

SEBRING, Justice.

The Circuit Judge of Bay County has certified to this Court, in accordance with Supreme Court Rule 38, the following proposition of law for determination: 'May an action for divorce be instituted and maintained in this State by a guardian in behalf of a ward who prior to the time of the institution of suit has been duly adjudged to be mentally incompetent?'

It is settled by the holding of this Court in Schwob Co. of Florida v. Florida Industrial Commission, 152 Fla. 203, 11 So.2d 782, that circuit courts may certify to this court, under Supreme Court Rule 38, any question affecting the jurisdiction of circuit courts, any procedural question, or any question that will dispose of the whole case at the outset by an answer to the question propounded, where the question certified is without controlling procedent in this state and an instruction from this court will facilitate the proper disposition of the cause.

The question propounded by the learned circuit judge is one affecting the jurisdiction of the circuit court from which the question was certified, is without controlling procedent in this state and hence is entitled to an answer.

In answer to the certified question propounded, it is our view, which we think to be supported by the great weight of authority, that in the absence of a statute specifically authorizing suit for divorce by a guardian on behalf of an insane ward the right to maintain the suit is of such a strictly personal and volitional nature that it must, of necessity, remain personal to the spouse aggrieved by the acts and conduct of the other. Inasmuch as there are no marital offenses which in and of themselves work a dissolution of the marriage relation, or which may not be condoned, the marital relation can be dissolved only with the consent and at the instigation of the injured spouse personally, and manifestly, such consent cannot be given by one who is legally insane. To hold to any other view would be to destroy the effect of condonation, which not only is a defense available to a defendant in proper cases but which also preserves to the injured spouse the right to forgive, excuse or pardon. See annotations 70 A.L.R. 964 and 149 A.L.R. 1284. See also 17 Am. Jur. 290, 291, Divorce and Separation Sections 270, 272; 27 C.J.S.,...