ANNIE STONEBURG
v.
J. A. STONEBURG
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A Florida Supreme Court decision affirming a divorce decree granted to the husband on grounds of the wife's habitual violent temper and extreme cruelty. The court rejected the wife's argument that her continued residence in the marital home during the divorce proceedings constituted condonation of the conduct alleged.
The court held that mere continued residence in the same house without cohabitation does not constitute condonation of cruel conduct when the parties maintain separate rooms and the testimony supports the plaintiff's allegations. Additionally, acceptance of the settlement payment estops the defendant from challenging the sufficiency of the alimony award on appeal.
“The mere fact that the wife continued to live in the husband's house during the pendency of the divorce proceedings, but without cohabitation, the husband occupying a room with his grown son, and the wife occupying a separate room, is not sufficient to show condonation of the conduct of the wife which is made the basis of the suit for divorce.”
Establishes the core holding that cohabitation without intimate relations and with separate sleeping arrangements does not constitute condonation in divorce proceedings.
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Join FLexlaw to unlock all legal intelligenceThe husband sued for divorce based on the wife's habitual indulgence in violent and ungovernable temper and extreme cruelty. During the pendency of th…
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This was a suit for divorce brought by the husband against the wife upon the grounds of habitual indulgence in violent and ungovernable temper and extreme cruelty. The evidence was conflicting, but there was ample evidence to sustain the Chancellor’s decree in favor of the plaintiff husband, and we would not be authorized, under the well known rule applicable in such cases, to reverse the findings of the Chancellor on the evidence.
The mere fact that the wife continued to live in the husband’s "house during the pendency of the divorce proceedings, but without cohabitation, the husband occupying a room with his grown son, and the wife occupying a separate room, is not sufficient to show condonation of the conduct of the wife which is made the basis of the suit for divorce. The law would not compel the husband under such circumstances to forcibly put his wife out of the house in order to maintain a suit for divorce on the grounds in*190volved. It is possible for two persons to live in the same house and eat at the saíne table and yet be as far apart as the poles. If the testimony of the plaintiff husband and his grown son was worthy of belief,, and the Chancellor evidently thought so, the mere fact that the wife continued to occupy the matrimonial domicile did not, under the testimony offered in behalf of the plaintiff, amount to a condo-nation and- forgiveness .by plaintiff of the habitual indulgence on her part in violent and ungovernable temper, or the cruel treatment complained of, which the testimony offered on behalf’ of plaintiff tended to establish. See 19 C. J. 87, and cases cited. While' the evidence is in conflict on practically all points in the case, that question has been settled by the Chancellor and we see no reason to disturb his finding.
The Chancellor ordered the plaintiff husband to pay to the defendant and her attorney certain sums,- the acceptance of which would operate as a complete compensation or settlement of all claims of whatever character, either for attorney’s fees, court costs or present or future alimony or support money, which the defendant has or may hereafter have against the plaintiff. The sum of money was paid and accepted. The court was not compelled to make this order, or to grant alimony to the defendant wife in this case (Section 4987 C. G. L.), but when the court did so, and the sums ordered to be paid to the defendant and her solicitor respectively were paid and accepted, this estopped the defendant from raising any question in this court as to the sufficiency of the amount so ordered and paid.
We find no reversible error in the record and the decree appealed from is hereby
Affirmed.
Whitfield, C. J., and Davis, J.,' concur.
*191• Ellis, P. J., and Terrell and Buford, J. J., concur in the opinion and judgment.
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Citator
Cited By (12 total)
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Cole v. Cole, 130 So. 2d 126 (Fla. 1st DCA 1961)…nclusions thereon will not be disturbed.” Phifer v. Phifer, 1936, 124 Fla. 223, 168 So. 9, 10. See also Baker v. Baker, 1927, 94 Fla. 1001, 114 So. 661; Welch v. Welch, 1933, 112 Fla. 590, 152 So. 173, and Stoneburg v. Stoneburg, 1935, 120 Fla. 188, 162 So. 334. In justifying this rule with the goal of the courts to ascertain the truth,, it is sometimes pointed out that in an equity-suit the chancellor, like a jury in an action at law, is the trier of the facts and as such has heard the testimony of the wi…
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Brooks v. Brooks, 100 So. 2d 145 (Fla. 1958)…by accepting payment of sums awarded her in the final decree for alimony and expenses, waived the right to appeal from the decree with respect to such awards. 27 C.J.S. Divorce § 284, at p. 1102. See also Stoneburg v. Stoneburg, 1935, 120 Fla. 188, 162 So. 334 and Larabee v. Larabee, 1935, 128 Neb. 560, 259 N.W. 520. It has been suggested that to adhere to such a rule in divorce proceedings would leave the wife destitute during the pendency of her appeal. Such, however, is not the case. The appellate cou…
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Cocalis v. Cocalis, 103 So. 2d 230 (Fla. 3d DCA 1958)…warded her in the first alimony decree. Appellant contends on this appeal that by accepting such benefits of the decree the wife was precluded from seeking a larger amount of alimony on a petition for rehearing. Stoneburg v. Stoneburg, 120 Fla. 188, 162 So. 334, and the concurring opinion of Justice Drew in Brooks v. Brooks, Fla.1958, 100 So. 2d 145, deal with the effect, on a right to appeal from an alimony award, of accepting the alimony pending the appeal. It is sufficient to say in disposition of this…
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