CORA L. NEARY, APPELLANT,
v.
JAMES PAUL NEARY, APPELLEE

Fla. | 1931-10-27
103 Fla. 299 Florida Supreme Court (1931)
Also reported at: 137 So. 236

AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.

Synopsis

The Florida Supreme Court affirmed a lower court's dismissal of a divorce suit, finding that the plaintiff failed to prove the statutory grounds for divorce, specifically willful, obstinate, and continued desertion.


Holding

No, the complainant failed to prove the necessary elements of willful and obstinate desertion as required by statute.


Key Quotes

“Even then neither the elements of willfulness or obstinateness of the alleged desertion was proven by this witness.”

Reasoning for the insufficiency of the complainant's testimony.

Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.

Join FLexlaw to unlock all legal intelligence

Facts & Procedural History

A wife filed for divorce alleging willful, obstinate, and continued desertion for one year. Constructive service was obtained by publication. After te…

The full statement of facts, procedural history, and disposition for this case are member content.

Join FLexlaw to unlock all legal intelligence

© FLexlaw, Inc. — AI-generated enrichments are proprietary. All rights reserved.


Opinion of the Court
Per Curiam.

Per Curiam.

This was a suit for divorce. Constructive service was had by publication. The Bill alleged one statutory ground for divorce, ie., willful, obstinate and continued desertion for a period of one year prior to filing of Bill. After testimony taken in due course before a Master the Chancellor entered an Order dismissing the Bill without prejudice. Testimony of the complainant was elicited in the manner denounced in Chisholm vs. Chisholm, 98 Fla. 1196, 125 Sou. 694, fourteenth headnote, page 1216, test 98 Fla. Even then neither the elements of willfulness or obstinateness of the alleged desertion was proven by this witness. There was no effort to prove-, either of these elements of the statutory ground by any other witness. Desertion is not proven by any witness. It is true that the complainant in answer to the question: “Did he leave you?” answered “Yes”. That answer proved nothing material. The complainant' utterly failed to prove the allegation of her Bill.

The decree is affirmed.

Affirmed.

Buford, C.J., and Ellis and Brown, J.J., concur.

Whitfield, J., concurs in the opinion and judgment'.

Terrell and Davis, J. J., dissent.

*300Davis, J.,

(Dissenting) :—This case was referred to a Master to make findings as to both law and fact. The Master found the law and facts in favor of complainant. No such situation existed in the Chisholm case, supra. There the special master was not empowered to make findings of law or fact but merely to take testimony and transmit it to the court for first-hand consideration. It is discretionary with a chancellor to refer a cause to a Special Master to make findings of law and fact or merely have the Master take the testimony in divorce cases. When a Master is appointed to make findings the finding should not be disregarded except for strong reasons. I do not think the Chisholm case controls this and that the divorce should have been granted on the Master’s findings.

Dissent
Davis, J.,

[*300] Davis, J.,

(Dissenting) :—This case was referred to a Master to make findings as to both law and fact. The Master found the law and facts in favor of complainant. No such situation existed in the Chisholm case, supra. There the special master was not empowered to make findings of law or fact but merely to take testimony and transmit it to the court for first-hand consideration. It is discretionary with a chancellor to refer a cause to a Special Master to make findings of law and fact or merely have the Master take the testimony in divorce cases. When a Master is appointed to make findings the finding should not be disregarded except for strong reasons. I do not think the Chisholm case controls this and that the divorce should have been granted on the Master’s findings.


Cases With Similar Vibessemantic neighbors from the corpus


Citator

Authorities Cited

Full citator, related cases, and AI research tools

Open in FLexlaw