Opinion
July 18, 1952.
Appeal from the Circuit Court for Pinellas County, John Dickinson, J.
Thomas J. Collins, St. Petersburg, for appellant.
No appearance for appellee.
Appellant, as plaintiff in the Circuit Court of Pinellas County, Florida, filed his bill of complaint seeking divorce from the appellee. No defense was offered in the Circuit Court on the behalf of the appellee and no appearance on her behalf has been entered here.
The case was heard before a General Master in the Circuit Court, who made his report with the testimony taken before him and recommended to the Court that final decree of divorce be granted the appellant (plaintiff below).
The Chancellor overruled the Master and entered decree denying divorce to the appellant.
The entry of this decree is assigned as error here on appeal.
The Chancellor found that the "facts and testimony herein adduced are not sufficient to prove extreme cruelty."
Cruelty is a relative term. That which may be cruel to one individual may be laughed off by another; what may not be cruel to an individual under one set of circumstances, may be extreme cruelty under a different set of circumstances.
The marital status can survive no longer in a cold mental atmosphere than could a baby rhinoceros on the icebergs of the Arctic Ocean. The tortures of the Roman Arena were no more terrifying to its victims than is the isolation, avoidance and neglect of one suffering from a communicable disease by his or her family and loved ones.
The appellant was a victim of the great white plague, pulmonary tuberculosis. Twice he has been a patient in tubercular sanitariums. In 1941 the appellant, as a reserve officer, was called to the service of his Country. His medical examination revealed tuberculosis and in July, 1941, he was admitted to a sanitarium where he remained until September, 1942. The following year, 1943, new infections of tuberculosis were discovered in appellant's lungs and he was admitted to another sanitarium in January of 1944, where he was destined to remain for seven long years plus three months. This latter confinement of seven years plus proved to be the Valhalla of the marital status `twixt appellant and appellee. The appellee, regardless of her marriage vows of "for better or for worse" and "in sickness and in health", failed to visit her husband, though her home was but a few miles distant from the sanitarium, except on rare occasions, and when she did visit she was morose and complaining, when she had anything to say, though mostly she remained silent.
For and during seven long, agonizing years appellant was confined to the sanitarium; for seven long years his wife, appellee, neglected to visit save on rare occasions and then only to complain, if she said anything at all. So far as she was concerned, he remained as lonesome as Christ in the Garden of Gethsemane or John on the Isle of Patmos. Nothing could be more cruel. "Sticks and stones may break bones", but physical suffering can ne'er approach that of a neglected and spurned spouse by the other when he or she is sick and in distress.
Were this a case of first impression we might be compelled to agree with the Chancellor below, but his error is shown by consistent precedents of this Court in Currie v. Currie, 120 Fla. 28, 162 So. 152; Nolen v. Nolen, 121 Fla. 130, 163 So. 401; Gratz v. Gratz, 127 Fla. 605, 173 So. 442; Diem v. Diem, 141 Fla. 260, 193 So. 65; Roebling v. Roebling, 119 Fla. 768, 161 So. 715; Henderson v. Henderson, 137 Fla. 770, 189 So. 24; Baldwin v. Baldwin, 151 Fla. 341, 9 So.2d 717.
The decree as entered in the Court below is reversed with directions to enter decree granting appellant, Samuel E. McGlathery, Jr., a divorce a vinculo matrimonii of and from the defendant, Margaret Mary McGlathery.
SEBRING, C.J., and ROBERTS and MATHEWS, JJ., concur.