CECELIA H. WALTON, APPELLANT,
v.
RUSSELL A. WALTON, APPELLEE
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The appellate court reversed a divorce judgment, finding insufficient evidence of continuous desertion for the statutory one-year period required by Florida law. The court emphasized that the desertion must be wilful, obstinate, and uninterrupted for the full year preceding the lawsuit.
No, the evidence was insufficient to establish that the desertion was continuous for the entire year prior to the filing of the divorce action.
“It is appellant's contention that the testimony is insufficient to support the husband's allegation that she was guilty of desertion as defined by § 61.041(7) Fla. Stat., F.S.A.”
States the appellant's main argument on appeal.
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Join FLexlaw to unlock all legal intelligenceA husband sued for divorce, alleging his wife's desertion. The trial court granted the divorce on this ground and denied the wife's claims for alimony…
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The defendant-wife appeals a final judgment which granted the plaintiff-husband a divorce on the ground of desertion, and denied her claim for alimony and certain expenses in connection with her defense of the suit.
It is appellant’s contention that the testimony is insufficient to support the husband’s allegation that she was guilty of desertion as defined by § 61.041(7) Fla. Stat., F.S.A. The above cited statute requires a spouse seeking divorce on the grounds of desertion to show that such desertion was “wilful, obstinate and continued * * * ” for a period of one year.
We find merit in the appellant’s contention that the complained-of desertion was not “continuous” for a period of one year immediately prior to the commencement of the law suit, as contemplated by the statute. See Fisher v. Fisher, Fla.App.1961, 134 So.2d 277; Walker v. Walker, Fla.App.1960, 123 So.2d 692.
Therefore, the final judgment of divorce is reversed.
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Collier v. Canal Ins. Co., 511 So. 2d 736 (Fla. 1st DCA 1987)…ourt has no discretion to terminate an action and enter adverse judgment on the merits solely because a transfer of interest has been made pending the suit. Several years later, the Second District, in Narrows Corp. v. Boca Ciega Sanitary District, 230 So. 2d 49 (Fla.2d DCA 1970), had occasion to interpret Rule 1.260(c) in a similar context. In Narrows, property owners brought an action contesting the validity of a special assessment which a Sanitary District had levied against their property. The trial cou…
Authorities Cited
- Ovenea Constantine Fisher v. Fisher, 134 So. 2d 277 (Fla. 1st DCA 1961)
- ROY v. ROY, 123 So. 2d 692 (Fla. 3d DCA 1960)
- Walker v. Walker, 123 So. 2d 692 (Fla. 1st DCA 1960)