Stockham v. Stockham, No. 33350

• Court: United States State Supreme Court of Florida
• Writing for the Court: ERVIN; DREW
• Citation: 4 A.L.R.3d 539,168 So.2d 320
• Parties: Elizabeth R. STOCKHAM, Appellant, v. William H. STOCKHAM, Appellee.
• Decision Date: 21 October 1964
• Docket Number: No. 33350

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

Page 321

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...