Anders v. Anders

13 So. 2d 603, 153 Fla. 54, 1943 Fla. LEXIS 546

• Court: Supreme Court of Florida
• Decided: May 21, 1943
• Status: Published

Opinions

ADAMS, J.:

This appeal brings for review a decree disallowing a divorce to the appellant husband on the ground of desertion.

The parties were married in 1933. The wife abandoned the home in October of 1936 and filed a statutory suit for separate maintenance. Section 65.10, Florida Statutes, 1941. That suit terminated by a final decree in December, 1937, in favor of the husband. In the separate maintenance suit, it was the wife’s contention, based upon legal advice, that she was justified in remaining separate and apart from her husband unless he would force his sister to depart from the home. After termination of the separate maintenance suit, the wife unreservedly offered to return. However, by that time the period of one year for desertion had run.' When the husband refused to take her back, she then, upon further advice of her attorney, returned and remained under the roof without her husband’s approval. Thereupon the husband brought suit for divorce charging desertion under Section 65.04, Florida Statutes, 1941.

It is apparent that the chancellor was governed largely by testimony relative to desertion which transpired prior to the decree in the separate maintenance suit. Was not the determination in such suit sufficiently conclusive to estop either party to further litigate the question of who was at fault in the separation.

It is true that an adjudication in the separate maintenance suit is not res judicata in a proceeding for divorce on the ground of desertion, for in the latter case the desertion must have existed for a period of one year, whereas in the former there, is no required time limit. In other respects, the issues are so similar that other courts have held that an adjudication in the former would estop the parties to relitigate the same issue in another proceeding. Harding v. Harding, 198 U.S. 317, 25 Sup. Ct. 617, 4 L. Ed. 1066; Freeman on Judgments, 5th Edition, Vol. 2, page 1910; Vol. 31 C.J.S. page 194.

The wife absented herself from the home and made an issue of who was at fault for the separation. The issue was concluded adversely to her and we hold that she is now es-topped to go behind that decree and show that the husband was responsible for the separation.

It is claimed by appellee that the record and decree of the Court in the separate maintenance suit was not plead and proven in this case. The answer to this is found in the wife’s answer in the divorce suit wherein she admits the facts relating to the separate maintenance suit and the decree therein.

The wife also claims that even though she was at fault in attaching conditions to her offer to return up until the final decree in the separate maintenance suit, that thereafter she unreservedly offered to return and the husband refused to take her back. By that time, however, a ground for divorce existed in favor of the husband and the question arises whether the husband was obliged to take her back.

Condonation is a conditional forgiveness of a matrimonial offense by the aggrieved party. It presupposes the existence of a ground for divorce and the privilege of forgiving the wrongful act rests with the innocent party and not with the offending party. Vol. 27, C.J.S., page 608.

Once the statutory ground for divorce because of desertion has occurred, the right to divorce becomes vested and it cannot be taken from the injured party except by his own act. 27 C.J.S. 571; 95 A.L.R. 231; McKay v. McKay, 172 Ark. 918, 290 S. W. 951.

The fact that the wife in this case might have acted in the best of faith on advice of her counsel in remaining away subject to the condition stated, will not alter her case. Neither will her plea be stronger because she insisted on returning and remaining in the home on advice of counsel. It all adds up to the proposition that if a successful marital status is dependent upon cohabitation on advice of counsel, it is unquestionably doomed to failure. When the evidence is considered in its entirety, it shows beyond a question of doubt that the marriage relation was and would remain intolerable.

It therefore appears that the chancellor misconceived and erroneously applied the law to the facts of the case. The decree should have been for a divorce to the husband as prayed. No other issues are involved. The decree is reversed with instructions for a decree not inconsistent with this opinion.

Reversed.

BUFORD, C.J., TERRELL and SEBRING, JJ., concur. BROWN, CHAPMAN and THOMAS, JJ., dissent.