Stone v. Stone

• Citation: 111 So.2d 486
• Decision Date: 28 April 1959
• Docket Number: 58-185,Nos. 58-158,s. 58-158
• Parties: Morris S. STONE, Appellant, v. Evelyn L. STONE, Appellee. Evelyn L. STONE, Appellant, v. Morris S. STONE, Appellee.
• Court: Court of Appeal of Florida (US)

Page 486

111 So.2d 486

Morris S. STONE, Appellant, v. Evelyn L. STONE, Appellee.

Evelyn L. STONE, Appellant, v. Morris S. STONE, Appellee.

Nos. 58-158, 58-185

District Court of Appeal of Florida, Third District.

April 28, 1959.

Miller & Miller and Armand J. Brissette, Jr., Miami, for appellant and cross-appellee.

Dixon, DeJarnette, Bradford & Williams and Joseph F. Jennings, Miami, for appellee and cross-appellant.

CARROLL, CHAS., Chief Judge.

The appellant Morris S. Stone sued his wife, the appellee Evelyn L. Stone, for divorce in the circuit court in Dade County, charging two grounds: habitual indulgence in violent and ungovernable temper, and desertion. She counterclaimed for separate maintenance, charging desertion. From a decree denying to each the relief sought, both have appealed.

Earlier, while residing in Ohio, Morris had sued Evelyn for divorce on the ground of cruelty. She filed a cross-claim there, charging Morris with desertion, and seeking separate maintenance. Thus, the issues made and tried on the Ohio case were based on the charge of cruelty made by Morris, and the charge of desertion asserted by Evelyn. The Ohio court, after trial, held that the parties had not proved their charges, and denied relief to both. That much appears in the record here. The Ohio testimony is not revealed.

In his complaint in the Florida suit Morris did not repeat his charge of cruelty, but sued on and added the separate grounds of habitual indulgence in violent and ungovernable temper and desertion. Evelyn filed an answer and a counterclaim, again charging Morris with desertion and seeking separate maintenance as she had done in the prior Ohio suit. ¹ Morris filed motions to strike and to dismiss the counterclaim. On Evelyn's motion, the chancellor granted a summary final decree in her favor against Morris in his divorce suit; denied the motions to strike and dismiss Evelyn's counterclaim; but denied her any relief thereunder, except attorney fees and suit money.

As a basis for the ruling on the divorce suit, the summary final decree set out the following:

'* * * the Court having considered the pleadings, depositions, heard the arguments of counsel and been advised in the premises,

'Finds that it clearly appears to the Court that the issues raised in this case were previously litigated or could have been litigated by the same parties in a similar cause tried by the Court of Common Pleas, Cuyahoga County, Ohio [see 98 Ohio App. 240, 122 N.E.2d 404], and that the plaintiff here is barred by the doctrines of res judicata and estoppel by judgment from maintaining this action. It further appears that the defendant has been put to the cost of defending this action and should be entitled to reimbursement for her costs and attorneys' fees. There has been no showing made to entitle her to support and maintenance from this Court. * * *'

When one spouse sues for divorce on the ground of cruelty, an adverse decree in that suit will not be res judicata as to a different ground or grounds of divorce sued on in a later suit; ² nor will the first decree operate to estop the later suit as to newly alleged grounds of divorce, unless the defendant can show with certainty that there were litigated and adjudicated in defendant's favor the precise factual issues necessary to establish the material elements of the new grounds of divorce.

As shown by Prall v. Prall, 58 Fla. 496, 50 So. 867, 870, 26 L.R.A.,N.S., 577, a determination of a cause of action charged in both suits 'is conclusive in the second suit as to every question that was presented or might have been presented and determined in the first suit.' But the Prall case also shows that as to other causes of action (habitual indulgence in violent and ungovernable temper and desertion) which were not involved in the first suit, the doctrine of res judicata is not applicable, and the first suit operates to bar the second, if at all, under the doctrine of estoppel by judgment, only 'as to every point and question that was actually litigated and determined,' and not as to 'other matters that might have been, but were not, litigated or decided.' After so holding in the Prall case, 50 So. at page 870, the Supreme Court continued:

'* * * The test of the identity of causes of action, for the purpose of determining the question of res adjudicata, is the identity of the facts essential to the maintenance of the actions. It is of the essence of estoppel by judgment that it be made certain that the precise facts were determined by the former judgment. If there is any uncertainty as to the matter formerly adjudicated, the burden of showing it with sufficient certainty by the record or extrinsically is upon the party who claims the benefit of the former judgment. * * *' [citing numerous authorities].

Therefore, the decree in the first suit cannot be conclusive as to the different causes of action in the second suit, on matters which might have been, but were not litigated and decided. Prall v. Prall, supra; Bagwell v. Bagwell, 153 Fla. 471, 14 So.2d 841; Coleman v. Coleman, 157 Fla. 515, 26 So.2d 445; Gordon v. Gordon, Fla.1952, 59 So.2d 40. See Roy v. Roy, Fla.1954, 73 So.2d 294; Horn v. Horn, Fla.1956, 85 So.2d 860; Shirley v. Shirley, Fla.App.1958, 100 So.2d 450; Restatement, Judgments, § 74, comment d.

In this case, in applying estoppel by judgment, the chancellor used the res judicata rule which is applicable only when the causes of action are the same in both suits, and which is not applicable to causes of action which are different in the two suits, as they are here. In determining estoppel by judgment it was not enough for the defendant to show, or for the court to find, that the issues raised in this case could have been litigated and decided in the Ohio case. The burden was upon the defendant to show that the facts necessary to prove the new and added causes of action in the Florida case were actually presented in the Ohio case, and the question of whether that had been done in the Ohio case became an issue in the Florida divorce suit.

The evidentiary matter before the court did not settle that issue. The depositions of a number of Ohio witnesses taken by the plaintiff, intended for use as evidence on plaintiff's behalf to support the several grounds of divorce alleged in the Florida case, did not determine the question of what evidence was presented in the Ohio case. Those witnesses did not testify in the earlier case. The fact that they could have or would have given their testimony in the Ohio case, if they had been called upon or subpoenaed there is of no help to the defendant here in urging the defense of estoppel by judgment.

Defendant could have met the burden to 'show with sufficient certainty' the matters which were actually litigated and determined in the first suit, by producing the record evidence of that suit, or by extrinsic proof. See Prall v. Prall, supra, 58 Fla. 496, So. 867; Riehl v. Riehl, Fla.1952, 60 So.2d 35.

In the present case no record of the evidence presented in the Ohio case was produced, and the only extrinsic proof as to that evidence consisted of two conflicting affidavits...