DAISY TEE SALIBA
v.
THOS. ELIAS SALIBA
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The Florida Supreme Court reversed a divorce case where the chancellor dismissed the wife's complaint based on a finding of adultery, despite no such allegation being made. The court found the evidence insufficient to prove adultery and that the dismissal was improperly predicated on this unproven finding.
Yes, the chancellor erred. The evidence presented was insufficient to prove adultery, and the dismissal order was improperly predicated on this erroneous finding.
“Although the appellee made no allegation of adultery against his wife (appellant), and Chancellor found her guilty, and because of such finding, dismissed her bill of complaint.”
This quote highlights the core procedural and factual issue: the dismissal of the wife's complaint based on a finding of adultery that was neither alleged nor proven.
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Join FLexlaw to unlock all legal intelligenceThe appellee (husband) filed a bill of complaint for divorce. The appellant (wife) also filed a bill of complaint. The chancellor found both parties g…
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Although the appellee made no allegation of adultery against his wife (appellant), and Chancellor found her guilty, and because of such finding, dismissed her bill of complaint. The evidence of indiscreet conduct on the part of appellant falls far short of being proof of adultery when measured by the yardstick prescribed by this Court in McMillan v. McMillan, 120 Fla. 209, 162 So. 524; Engebretsen v. Engebretsen, 151 Fla. 372, 11 So. (2) 233 and cases therein cited.
We have not overlooked the pronouncements of this court in those cases which hold that the Chancellor’s order or decree will not be reversed simply because his findings were erroneous if the order or decree is found to be without error. However, in the instant case the Chancellor’s order shows clearly that he predicated the exercise of his discretion directly upon the finding that both the wife and husband were shown by the evidence to have been guilty of adultery. The • order of dismissal is interwoven so conclusively by the Chancellor with his finding as to cause said finding to be an integral part thereof.
The cause should be reversed with direction that a decree of divorce be granted to appellant and with leave to the Chan*960cellor to further consider any other equities presented by the pleadings.
It is so ordered.
THOMAS, C. J., TERRELL, CHAPMAN and BARNS,'JJ., concur.
ADAMS and SEBRING, JJ., dissent.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Authorities Cited
- Engebretsen v. Toley Engebretsen, 151 Fla. 372 (Fla. 1942)
- McMillan v. McMillan, 120 Fla. 209 (Fla. 1935)