JOHNNY EDWARD DORMAN
v.
RUTH S. DORMAN
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In this divorce case, the Florida Supreme Court affirmed the trial court's dismissal of both the wife's divorce complaint and the husband's counterclaim. The court held that the appellant-husband was bound by his own motion to dismiss and could not challenge an order granting the very relief he had requested.
The court affirmed the dismissal, holding that because the husband had filed a motion to dismiss, he was bound by that motion and could not challenge the trial court's grant of the very relief he had requested. The court also found the counterclaim allegations insufficient to state grounds for divorce.
“the allegations fall short of being sufficient to charge either ground of divorce”
Establishes that the counterclaim was properly dismissed for failing to adequately allege grounds for divorce
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Join FLexlaw to unlock all legal intelligenceThe wife filed suit for divorce. The husband responded with a motion to dismiss, answer, and counterclaim alleging the wife possessed a violent and un…
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— -Appellee filed suit for divorce. Appellant filed motion to dismiss, answer and counterclaim. Appellee then filed motion to dismiss'.
The Chancellor, after hearing, entered order dismissing the cause on complainant’s motion at complainant’s cost.
The counterclaim prayed divorce upon the allegations made therein. The allegations of the counterclaim were evidently intended to show that the complainant was possessed of a violent and ungovernable temper, or that complainant had been guilty of cruel and inhuman treatment of the defendant, or perhaps both, but the allegations fall short of being sufficient to charge either ground of divorce.
Therefore, the counterclaim was' properly dismissed. It appears from the record, however, that the defendant on July 29, 1935, filed in one document answer, motion to dismiss bill of complaint and also counterclaim and on July 31, 1935, complainant filed praecipe or motion to dismiss the cause. The appeal is by the defendant in the court below and while the order recites that the cause is dismissed on motion of complainant at complainant’s cost, it is equally as affirmatively responsive to defendant’s motion to dismiss which was then pending before the Chancellor undisposed of. As both parties moved to dismiss the cause, the appellant is bound by his motion and cannot now be heard to complain or- to insist that the Chancellor committed error in entering an order such as he had specifically moved the Chancellor to enter.
So the order appealed from should be and is affirmed.
So ordered.
*282Affirmed.
Ellis, P. J., and Terrell and Buford, J. J., concur.
Whitfield, C. J., and Brown and Davis, J. J., concur in the opinion and judgment.
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Citator
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Norwood K. Walton v. Walton, 290 So. 2d 110 (Fla. 3d DCA 1974)…udge and the appellant, having first requested the trial court to make such a decision in his counterclaim, should not now be heard to complain that the trial court committed error in undertaking to do what the appellant requested. Dorman v. Dorman, 125 Fla. 280, 169 So. 2d 867; Farr v. Farr, Fla.App.1971, 249 So. 2d 761. Therefore, for the reasons above stated, we affirm the action of the trial judge in dividing the jointly held property at the request of the appellant, and find no abuse of discretion in…
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E. L. Hawkins de bonis non of the Estate of Wise Perry v. Perry, 146 Fla. 766 (Fla. 1941)…1940, and recorded March 4, 1940. As the order of July 23, 1940, dismissing the cause was entered at the instance and request of the plaintiff, the appellant here, he cannot be heard to challenge the correctness of such order. See Dorman v. Dorman, 125 Fla. 280, 169 Sou. 867; Marx v. Withers, 119 Fla. 692, 160 Sou. 662; Borst v. Gale, 99 Fla. 376, 126 Sou. 290. The appeal from that order will not serve as the vehicle to bring up for review orders as to which the time for appeal has expired. It, therefore,…
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Ellis S. Rubin v. Gordon, 165 So. 2d 824 (Fla. 3d DCA 1964)…where it was said: “As the order of July 23, 1940, dismissing the cause was entered at the instance and request of the plaintiff, the appellant here, he cannot be heard to challenge the correctness of such order. See Dorman v. Dorman, 125 Fla. 280, 169 So. 867; Marx v. Withers, 119 Fla. 692, 160 So. 662; Borst v. Gale, 99 Fla. 376, 126 So. 290.” On the authority of Hawkins v. Perry, supra, and the other cases cited therein, the instant appeal must be dismissed. Moreover, it is our view that the procedur…
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