Stone v. Stone, 57-127
| Citation | 97 So.2d 352 |
| Decision Date | 10 October 1957 |
| Docket Number | No. 57-127,57-127 |
| Parties | Morris S. STONE, Appellant, v. Eveyln L. STONE, Appellee. |
| Court | Court of Appeal of Florida (US) |
Miller & Miller, Miami, for appellant.
Dixon, DeJarnette, Bradford & Williams, Miami, for appellee.
The appeal here is from a final decree dismissing with prejudice the appellant's bill of complaint for divorce. The chronology of events in the lower court is as follows: the appellant, on August 23, 1956, filed a bill of complaint for divorce charging the appellee with habitual indulgence in a violent and ungovernable temper, and willful, obstinate and continued desertion for a period of one year. The appellee filed a motion to dismiss the complaint on October 2, 1956, which, in addition to the ground that the complaint failed to state a cause of action, included the grounds that the appellant was not a bona fide resident of the State of Florida, had not resided in the state for ninety days prior to bringing the action and that he and the appellee were residents of a state other than the State of Florida. The motion further set forth that the court lacked jurisdiction by reason of certain prior proceedings had between the parties in the Common Pleas Court of Cuyahoga County, Ohio.* The motion was brought on for hearing before the court, after due notice, on December 12, 1956, and during the hearing the court permitted the introduction in evidence of certain exemplified copies of the record of proceedings in the Ohio court over the objection of the appellant's counsel. After considering the documents submitted in evidence, the motion to dismiss filed by the appellee, and argument of counsel for the respective parties, the court entered its final decree on December 17, 1956, dismissing the cause upon the authority of Carducci v. Carducci, Fla.1955, 82 So.2d 360.
The appellee, through her attorneys, upon the conclusion of the argument on the motion to dismiss, orally moved the court for attorneys' fees, court costs and suit money. Later, on December 27, 1956, after the entry of the final decree which failed to provide for the requested costs and fees, the appellee filed written petition for rehearing on that question and the same was denied.
The appellant has assigned numerous errors of the lower court upon which he relies for reversal, but we consider the primary question to be whether or not the lower court was in error in entering a final decree, dismissing the complaint with prejudice, based upon a motion to dismiss, which raised the affirmative defense of res judicata and/or estoppel by judgment. The appellee has filed cross-assignments alleging error on the part of the lower court in failing to award her attorneys' fees and costs. The question posed by the appellant, we conclude, should be answered in the affirmative, and that of the appellee in the negative.
The chancellor below, in granting the appellee's motion to dismiss, applied the doctrine of res judicata and/or estoppel by judgment to the complaint upon the authority of Carducci v. Carducci, supra. In the Carducci case, the appellee wife not only filed a motion to dismiss and an answer, but filed a cross-claim for alimony unconnected with divorce, setting up as an affirmative defense, res judicata and estoppel by judgment, arising out of prior proceedings in a Massachusetts court between the parties. In the case at bar, only a motion to dismiss was filed which set up, among other defenses, an affirmative defense of res judicata and/or estoppel by judgment by reason of certain prior proceedings had between the parties in the State of Ohio. Rule 1.11(b), Florida Rules of Civil Procedure, 30 F.S.A., enumerates the specific grounds upon which a motion to dismiss will lie, none of which include estoppel by judgment and/or res judicata. Rule 1.8(d), Florida Rules of Civil Procedure, provides:
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