Walker v. Walker

• Citation: 123 So.2d 692
• Decision Date: 20 October 1960
• Docket Number: No. C-52,C-52
• Parties: Lewis D. WALKER, Appellant, vsv. Shirley M. WALKER, Appellee.
• Court: Court of Appeal of Florida (US)

Page 692

123 So.2d 692

Lewis D. WALKER, Appellant, vsv.

Shirley M. WALKER, Appellee.

No. C-52.

District Court of Appeal of Florida, First District.

Oct. 20, 1960.

Joseph C. Black, Jacksonville, for appellant.

William T. Parker, Portsmouth, Va., for appelle.

STURGIS, Judge.

The plaintiff-husband in a suit for divorce on the ground of desertion appeals from a final decree which, upon the pleadings and proofs adduced before the chancellor, dismissed the complaint with prejudice.

For reversible error, appellant contends: (1) That the uncontradicted evidence conclusively established his claim for divorce on the ground of desertion; (2) that it was the duty of the trial court sua sponte to strike defendant's answer as being in violation of Rule 1.5, Florida Rules of Civil Procedure, 30 F.S.A., and Art. II, Sec. 2, Integration Rule of the Florida Bar, 31 F.S.A.; (3) that the chancellor's cross-examination of the appellant was highly prejudicial.

The proofs are susceptible to the findings of the chancellor, as recited by the decree in question, to the effect that from the plaintiff's own testimony it appears that the separation of the parties resulted from a mutual agreement that was designed to enable plaintiff to build up his financial ability to properly support his family, and that soon thereafter plaintiff encountered an accident which imposed heavier financial burdens upon him and as a result of which he contended that he could not afford to pay as much as $7.50 per week toward the support of a child of the marriage. During their separation plaintiff has lived in the home of his mother in Jacksonville, Florida, and defendant has lived in Portsmouth, Virginia, there supporting herself and the child. After pointing out that the evidence failed to show when, if ever, the plaintiff made known to the defendant that he was ready, able and willing to provide the defendant, and their child, with a suitable home in which the family could reside, the decree recites:

'In the absence of such testimony, the court advised plaintiff's counsel that the existing testimony did not measure up to the requirements of law to support a divorce decree; however, in recognition of the testimony of plaintiff, and his mother, to the effect that they were in possession of unproduced letters which would corroborate their contention that defendant refused to live with plaintiff, the court advised plaintiff's attorney that it was willing to reopen the hearing and permit plaintiff to introduce...