Smith v. Smith

322 So. 2d 580

Opinion

322 So.2d 580 (1975)

Raymond SMITH, Appellant,
v.
Elwanda SMITH, Appellee.

No. 75-474.

District Court of Appeal of Florida, Second District.

November 19, 1975.

William P. O'Malley, Clearwater, for appellant.

George L. Brown Jr., Clearwater, for appellee.

SCHEB, Judge.

The husband appeals from the trial court's order dismissing his petition for dissolution of marriage. We reverse.

The parties were married in 1965, and separated in 1973. There were no children born of the marriage. The husband was explicit in testifying that he did not love his wife and had no intentions of continuing in the marriage. The wife testified as to conduct on the husband's part which included a failing marriage, but she denied that the marriage was broken. In fact, her testimony about incidents in their marital life corroborated the husband's view in many ways. We find the testimony established the marriage was irretrievably broken. This being the case, and there being no real hope of reconciliation, it appears to be in the best interest of the parties that the marriage relationship be terminated. Nooe v. Nooe, Fla.App.2d 1973, 277 So.2d 835.

From the record, we glean the trial court may have denied the husband's petition because the parties engaged in sexual intercourse during the pendency of the proceedings. However, we held in Nooe, supra, that absent a clear showing of an intent to reconcile, this is not justification to deny the dissolution under Florida's "no fault" dissolution of marriage laws, Fla. Stat. Ch. 61. Reconciliation of marital partners requires more than a yielding to biological urges between the sexes. In fairness to the trial court, we note that Nooe, which appears a controlling precedent, was nowhere cited in the proceedings below.

Reversed and remanded for further proceedings consistent with this opinion.

McNULTY, C.J., and HOBSON, J., concur.