Opinion
May 26, 1950.
Appeal from the Circuit Court of Brevard County, M.B. Smith, J.
Shepard Dykes, Cocoa, for appellant.
No appearance for appellee.
Affirmed except as to cost awarded in final decree. The appellee should pay all the cost of the suit and we allow a fee of $250.00 in this court.
ADAMS, C.J., and TERRELL, THOMAS, SEBRING, HOBSON and ROBERTS, JJ., concur.
CHAPMAN, J., dissents.
The plaintiff-appellant, Artie B. Hall, filed her bill of complaint in the Circuit Court of Brevard County, Florida, against her husband, Fred Menzo Hall, praying for (1) a divorce on the ground of extreme cruelty; (2) alimony; (3) counsel fees; and (4) suit money. An amendment thereof was filed and tendered prior to final hearing. Appropriate pleadings were filed thereto by the defendant-appellee and a Special Examiner was appointed by the Chancellor to take the evidence and report the same to the trial court. It is established that the Chancellor did not see the witnesses or observe their demeanor upon the stand but considered and ruled upon the evidence so taken after hearing argument of counsel for the parties. The Chancellor entered an order dismissing the bill of complaint without granting relief in any form to the wife. An appeal has been perfected here and it is contended that the Chancellor misconstrued or misinterpreted the weight and effect of the testimony considered as a whole.
It is settled law that where a Chancellor refers a case to a Special Examiner with instructions to take all the testimony adduced by the respective parties but he never sees or hears the witnesses or observes their demeanor as witnesses and recommendations as to an appropriate decree were never made or placed in the record by the party so appointed to take the testimony and the Chancellor, on final hearing, simply reads the testimony so taken and otherwise studies the record, then and under these conditions the presumption of correctness of the ruling of the Chancellor as expressed in the final decree based on disputes and conflicts in the testimony is not here applicable. Harmon v. Harmon, Fla., 40 So.2d 209.
It appears from the testimony that both parties had been previously married. He was about 58 years of age, weighed 180 pounds and six feet high. He drank whiskey and complained of a heart ailment after the separation. His property was valued at between $60,000.00 and $65,000.00. He married the appellant on April 7, 1944, and they separated on April 2, 1948. The wife was 49 years of age and her usual weight was 125 pounds but reduced to 112 at the time of the separation. She had a grown daughter by a former marriage. Prior to her marriage in 1944 she had employment and earned approximately $50.00 per week. The wife testified to events during the time of cohabitation when the husband resorted to violence and would beat her. Witnesses testified as to seeing bruises about her eyes and mouth from time to time. The daughter testified about seeing bruises on other parts of her mother's body from time to time. The husband admitted that he struck his wife on two occasions and the last time on the beach near Melbourne shortly prior to the month of April when the wife left him. The testimony of both sets of witnesses as to the beating of the wife by the husband differs only as to the frequency and extent. The last beating the husband administered, according to his testimony, was to make her "shut up". She left him shortly thereafter.
Mr. Hall, according to the record, registered at the Hotel New Yorker in New York City and was assigned room number 2326 under the name of "Mr. and Mrs. Hall". The appellant never occupied the room of the hotel with her husband. The explanation given by the husband for such registration was simply "force of habit"; he was not unfaithful to his wife, and he had to pay for a double room as a single room was not to be had. The wife was suspicious of her husband's conduct and his explanation was not to her convincing and she was highly incensed because of the occurrence. The differences of the parties because of the incident were patched up and they continued to live together.
The husband bought a car when the parties were living in an apartment in Washington, D.C. They were to use the car on a trip to Florida. One evening shortly after the time of purchase a young man and his date visited in the apartment and the appellee and the young man's date went into the kitchen to prepare drinks for the four. The kitchen was small and the appellee and the "date" consumed some time in mixing the drinks. The wife went into the kitchen and slapped the date and ordered her from the apartment. The husband was indignant; he cancelled the lease on the apartment; withdrew his funds from the bank; changed his plans about going to Florida with his wife, and drove the new car to Arizona alone. He made no immediate arrangements for the care of his wife. She later went to Arizona and joined her husband. What was said or done by the appellee to the "date" in the kitchen, if anything, is not clear from the record, but the husband left his wife as a result of the occurrence.
The husband testified that his wife constantly nagged, was fault-finding and a genius in the creation of unpleasantness. A study of his testimony discloses that the bone of contention was that the wife requested a home and more expensive apartments and better furniture from time to time than the husband supplied. She unfortunately aired her views along these lines to visitors when calling at their apartment in Melbourne. Several of these visitors were called as witnesses, but their testimony, considered as a whole, is not helpful in settling the question of whether or not the husband was guilty of extreme cruelty. The wife justified her claim for a home or a better situated and furnished apartment on the theory that her husband's station in life, coupled with his business standing in the world, demanded that she should grace a home comparable to his financial ability and business standing, and on the basis of all others similarly situated. She thought they had come far enough now to move from the area commonly known as "across the railroad tracks". The husband-appellee did not share this view.
The husband's physician was called as a witness and testified that the appellee was suffering from a heart condition and the constant friction with the wife in his home aggravated the condition. He advised that the friction be immediately eliminated and that the appellee consume each day a reasonable amount of alcohol and suggested Bourbon Whiskey as his treatment for this heart condition. The physician's testimony is silent on the question of physical exercise on the part of his patient's heart condition, as it appears in the testimony that the appellee-husband appeared frequently at a golf course at Melbourne and was not only a regular golfer but took social drinks with others at the course from time to time.
Mrs. Hall, at page 263 of the transcript, testified viz.:
"Mr. Lawrence: I object to the question as leading and move to strike the answer.
"Q. Speaking of the choking incident that night, what happened? A. He choked me in bed, I thought he was going to kill me and he said, `Don't ever let me get that way again because I nearly killed you'.
"Q. And right after that is when you tore up your negligee? A. Yes, that's rather intimate, that about the choking, and that's the result of my shuddering and I would prefer not to tell that".
Mr. Hall at pages 188-189 of the transcript testified viz.:
"Q. Mrs. Hall testified that about April 2, 1948 you struck her when she offered you a cup of coffee, do you recall that incident? A. No.
"Q. It was also testified that prior thereto Mrs. Hall received a split lip at the beach, do you recall that incident? A. Well, I recall striking her, if that's what you mean by the split lip; I have admitted that.
"Q. About when was that? A. I don't know off hand, I know we were driving at the beach and it was in the evening.
"Q. Will you explain how this split lip occurred? A. Well we were driving, Mrs. Hall made me park and she went off in one of her usual harranges, first I think it was about the apartment, then my deficiencies, and then got on the subject of my daughter for whom she had conceived a violent and childish hate apparently, and began to say the most outrageous, unjustified and false things about my daughter. I asked her to shut up; I first remonstrated with her, asked her to shut up and ordered her to shut up and she became more and more infuriated, knocking herself against the instrument panel of the car, her voice raised; finally I struck her with the back of my hand, with my right hand, I was driving, and then I shut her up and I could take her home.
"Q. There was testimony introduced by Mrs. Hall about her receiving a black eye while in Washington, do you recall that incident? A. I do.
"Q. Other than the black eye received in Washington and the split lip received at the beach, do you recall any injury to Mrs. Hall that could be attributable to you during the time you were married to her? A. None whatever.
"Q. Do you recall getting drunk every night during your marriage and striking Mrs. Hall repeatedly? A. No, certainly not".
The husband testified about the events leading up to their separation in early April, 1948. It was his testimony that his wife was leaving on a short trip for a visit with her relatives and intended to return thereafter to his home at Melbourne. He supplied her with adequate funds and at the time of her departure they discussed a property settlement and he suggested a payment as full settlement to her in the sum of $7,500.00 or $8,000.00. She did not accept the suggested amount as a property settlement as by him proffered. He sent to her each month thereafter the sum of $150.00, but after November 1, 1948, the payments were discontinued.
The testimony of the wife on these points is to the effect that the husband drove her from his home and ordered her not to return and she did not leave for the purpose of visiting her relatives but because he made her leave; the bruises on her body as made by her husband at the time of the separation had not fully healed; the husband admitted the violence charged; he offered a property settlement in the suggested amount; she had no money or property; was nervous, lost weight and in bad physical condition. Assistance came from her daughter after the husband failed to send money in November, 1948.
The husband admitted beating his wife about the time she left him; he admitted offering her a property settlement in an amount not exceeding $8,000.00 at the same time; the physician advised him, on account of his alleged heart condition, to terminate immediately the friction between himself and the wife. These facts are simply incompatible with the contention that his wife deserted him at Melbourne in early April, 1948. It is the writer's view that the law does not permit a husband to beat his wife, as such conduct is a relic of the Dark Ages and under no circumstance is it tolerated in a well informed society. The Chancellor erred in dismissing on final hearing the bill of complaint. It appears by the record that the appellant is entitled to a divorce on the ground of extreme cruelty; alimony, counsel fees and all costs of this litigation. Permanent alimony should be decreed in the sum of $150.00 per month, retroactive to December 1, 1948.
Counsel for appellant-wife filed in this Court a petition for an allowance of attorney fees and other items of cost incident to this appeal. The husband filed here his motion to quash or strike the petition of the wife for an allowance of attorney fees for representing her in this Court. The motion of the husband to strike this petition should be denied and the wife's petition for an allowance of counsel fees should be granted and the amount of the fees should be fixed at the sum of $500.00 The costs of this appeal should be assessed against the appellee. I would reverse the order of the dismissal.