Stockham v. Stockham

• Decision Date: 21 October 1964
• Docket Number: No. 33350,33350
• Citation: 4 A.L.R.3d 539,168 So.2d 320
• Parties: Elizabeth R. STOCKHAM, Appellant, v. William H. STOCKHAM, Appellee.
• Court: Florida Supreme Court

Page 320

168 So.2d 320

4 A.L.R.3d 539

Elizabeth R. STOCKHAM, Appellant, v. William H. STOCKHAM, Appellee.

No. 33350.

Supreme Court of Florida.

Oct. 21, 1964.

Rehearing Denied Nov. 20, 1964.

James M. McEwen of Gibbons, Tucker, McEwen, Smith & Cofer, Tampa, for appellant.

Edwin J. Kennedy, Sarasota, for appellee.

ERVIN, Justice.

In the circuit court, Elizabeth R. Stockham, the plaintiff, sued her husband, William H,. Stockham, defendant, for a divorce on the ground of cruelty. He answered and asserted an affirmative defense that she was guilty of adultery. Pursuant to Rule 1.30, Florida Rules of Civil Procedure, 30 F.S.A., he requested admissions of plaintiff concerning his affirmative defense. She declined to answer, claiming privilege under Section 12 of the Declaration of Rights of the Florida Constitution, F.S.A. because she said her answers might tend to incriminate her. The chancellor in the circuit court upheld plaintiff in her refusal to answer. Upon interlocutory appeal to the District Court of Appeal, Second District, it reversed, holding plaintiff should answer the request for admissions within a reasonable time, and failing to do so her suit her divorce would be dismissed. See Stockham v. Stockham, Fla.App.1963, 159 So.2d 481. Mrs. Stockham, appellant, seeks reversal here of the decision of the District Court of Appeal.

Our jurisdiction of this appeal arises from the provisions of Section 4(2) of Article V of the Florida Constitution, F.S.A., which provides 'Appeals from district courts of appeal may be taken to the supreme court, as a matter of right, only from decisions initially * * * construing a controlling provision of the Florida or federal constitution.' This appeal comes within the language quoted because the construction placed upon Section 12, DR, by the District Court of Appeal in Stockham v. Stockham, supra, constitutes an initial construction of said Section 12 in this cause. The District Court of Appeal held that Section 12 would not preclude an equity court from refusing relief to a litigant who chooses to hide behind Section 12 in situations where it is obvious it would work palpable inequity. In passing, it is noted appellant also petitioned us for certiorari, but our holding in this appeal is dispositive of the case and renders it unnecessary for us to determine whether our certiorari jurisdiction might have been invoked.

Upon careful consideration of the modern trend of authority, we find that justice in our state will be served by confirming the decision of the District Court of Appeal. Equity considerations appear to require answers to said request for admissions under Rule 1.30, Fla.R.C.P., in default of which a plaintiff in a divorce action should not be permitted to further prosecute his or her action.

We find that Fifth Amendment to the Federal Constitution does not operate as a shield in all situations. For example, in Levine v. Bornstein, 13 Misc.2d 161, 174 N.Y.S.2d 574, the defendant therein alleged the plaintiff, an attorney, solicited the action to collect a judgment. Plaintiff attempted to take the Fifth Amendment in response to said allegation and referred to decisions where it was properly interposed, but the Court stated:

'* * * However, an examination of the above and other reported cases on the subject reveals that the privilege was always claimed by a non-party witness or by a defendant in court involuntarily, seeking only to defend. It does not follow that the protection of the privilege should be expanded to shield a plaintiff who with one hand seeks affirmative relief in court and with the other refuses to answer otherwise pertinent and proper questions which may have a bearing upon his right to maintain his action. To uphold this inconsistent position would enable the plaintiff to use the privilege as an instrument of attack.'

In Franklin v. Franklin, 365 Mo. 442, 283 S.W.2d 483 (1955), the question was whether plaintiff, after refusing to answer certain interrogatories propounded under discovery provisions of the Missouri Civil Code, or to testify concerning the status of a prior marriage on the grounds that her answers might tend to incriminate her, is entitled to maintain an action for divorce or even a motion for temporary alimony. The Supreme Court of Missouri stated:

'* * * One seeking a divorce must prove himself to be the innocent and injured party. * * * The latter requirement is neither more nor less than an application of the equitable doctrine of 'clean hands' to a divorce action. That doctrine says that 'whenever a party, who, as actor, seeks to set the judicial machinery in motion and obtain some remedy, has violated conscience, or good faith, or other equitable principle, in his prior conduct, then the doors of the court will be shut against him * * *; the court will refuse * * * to award him any remedy.' * * *'

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'To illustrate the anomalous situation that would arise if plaintiff's contention were to be sustained, let us suppose that the interrogatories propounded to her, both written and oral, had involved some misconduct on her part and peculiarly within her knowledge, such as, although not criminal, would defeat her right to divorce. In such a case, no one would deny that her refusal to answer would defeat her action. * * * Now, may she by being privileged to refuse to answer certain questions as to her misconduct on the ground that her answer might tend to incriminate her obtain an advantage that less offensive conduct would not afford her? Such a...