MAUDE A. BURNETT
v.
MILTON BURNETT
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The Florida Supreme Court denied a wife's petition for certiorari, which sought to expand a divorce court's temporary relief order. The wife wanted to exclude her husband from their home, but the lower court had only partially granted this request.
Yes, a chancellor has the discretion and legal authority to order parties to live separately if required by public decency, safety, or the welfare of children, which can include excluding a spouse from the marital home.
“While the matter is one vested very largely in his discretion, it is the settled law of this State that he may require the parties to live separately if public decency, the safety of the parties or the welfare of the children requires.”
Establishes the legal principle that a chancellor has the authority to order separate living arrangements in divorce cases.
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Join FLexlaw to unlock all legal intelligenceA wife sued for divorce, seeking temporary relief including exclusive use of the home for herself and children and an order barring the husband from s…
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Petitioner sued respondent for divorce, alleging as ground therefor, habitual intemperance and extreme cruelty. The bill prayed for temporary relief by way of awarding the custody of the children to complainant upon such conditions as to the Court may seem meet, by granting complainant exclusive use and possession of the home for herself and the children and restraining the defendant from using the home as a dwelling place or from eating or sleeping there without *465complainant”s consent, and that if necessary he be ejected from the premises.
The chancellor granted the temporary relief prayed for except as to defendant’s sleeping and eating at the home without the complainant’s consent. This part of the prayer was denied. This is an appeal by certiorari under Rule 34 of the Rules of this Court seeking to enlarge the scope of the Chaneellor’.s decree to include that part of the relief prayed for but which was denied.
The bill of complaint is sworn to and no attack is made on it's sufficiency. It shows that the home is the separate property of the wife and alleges an intolerable domestic situation if. proven. The brief of counsel suggests that the chancellor was of the view that he was without legal authority or jurisdiction to order the husband from the matrimonial domicile and preclude him from eating or sleeping there. We find nothing in the record to support this contention, neither is it denied.
If the chancellor was in fact of this view, he was in error. While the matter is one vested very largely in his discretion, it is the settled law of this State that he may require the parties to live separately if public decency, the safety of the parties or the welfare of the children requires. McGill v. McGill, 19 Fla. 341; Palmer v. Palmer, 36 Fla. 385, 17 So. 720; Lyon v. Lyon, 102 Ga. 453, 31 SE 34.
Certiorari is accordingly denied but without prejudice to petitioner to seek a review of her application for temporary relief.
It is so ordered.
THOMAS, C. J., CHAPMAN, J., and FABISINSKI, Associate Justice, concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Daniel v. Daniel, 236 So. 2d 197 (Fla. 1st DCA 1970)…sleeping hours; and it would be safer and less inconvenient for the husband to move, so the husband was ordered to absent himself from the home during the hours of 9:30 p. m. to 7:00 a. m. We are aware that the Supreme Court in Burnett v. Burnett, 158 Fla. 464, 28 So. 2d 878, 879 (Fla.1947), held that the trial court was vested with the authority to issue a temporary order requiring the husband to vacate the home if public decency, safety of the parties, or welfare of the children requires. That case care…
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Bowles v. Bowles, 384 So. 2d 299 (Fla. 4th DCA 1980)…. Furthermore, as stated above, the husband’s attorney seemed to agree the wife could live unmolested in the house on a temporary basis since the husband had another house in which to live. We cannot say the trial court erred. In Burnett v. Burnett, 158 Fla. 464, 28 So. 2d 878 (1947), it was suggested by counsel that the trial court believed it was without legal authority to order husband from the home. The Supreme Court commented: If the chancellor was in fact of this view, he was in error. While the matt…
Authorities Cited
- McGill v. McGill, 19 Fla. 341 (Fla. 1882)
- Electa E. Palmer v. Palmer, 36 Fla. 385 (Fla. 1895)