Spencer v. Spencer

193 So. 2d 40, 1966 Fla. App. LEXIS 4707

Opinion

PER CURIAM.

The defendant, husband, brings this appeal from the final decree dismissing a complaint for divorce brought by plaintiff, wife, and also dismissing the counterclaim for annulment or divorce by the husband.

After hearing all the evidence of all of the parties, the court determined that neither party had produced sufficient evidence in support of his alleged grounds, that neither party was blameless and that neither was entitled to relief.

We determine that the legal effect of the evidence was sufficient to prove the alleged grounds for divorce on behalf of the wife or the alleged grounds for annulment or divorce on behalf of the husband. The explanation or rebuttal of each to the evidence of the other lacks substantial evidentiary value, and there is no real conflict of specific fact. Neither party is domesticated, and the marriage should be dissolved. Chesnut v. Chesnut, 1948, 160 Fla. 83, 33 So.2d 730. The doctrine of recrimination should not be applied here. Its application is most applicable when a party seeks to take advantage of an act or omission which he himself induced. It may be invoked because of the nature of the wrong, either for the benefit of the court and society or for the benefit of the defendant, when to do otherwise would be to allow one party to take an unfair advantage of the other party. Stewart v. Stewart, 1946, 158 Fla. 326, 29 So.2d 247, 170 A.L.R. 1073.

The court should have considered the evidence and entered judgment for one party or the other and resolved the property issues.

Reversed.

SMITH, C. J., and WALDEN, J., concur. FUSSELL, CARROLL W., Associate Judge, dissents.