WILLIAM F. DANIEL, APPELLANT,
v.
MARY FENN CAWTHON DANIEL, APPELLEE
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In this interlocutory divorce appeal, the Florida District Court of Appeal reversed a trial court order requiring a faultless husband to absent himself from the marital home during sleeping hours, holding that such temporary relief cannot be granted merely based on the wife's antagonism toward the husband absent evidence of fault, intemperance, cruelty, or danger to the children.
The trial court improperly applied the law. A husband cannot be ordered to vacate the marital home absent evidence of fault, intemperance, cruelty, danger to the parties, or welfare concerns for the children. The wife's deep-seated antagonism toward the husband, without more, does not justify ejectment from the marital home.
[1] A trial court may order a spouse to vacate the marital home in a divorce case if public decency, the safety of the parties, or the welfare of the children requires it.
[2] A trial court may not order a spouse to vacate the marital home solely based on the other spouse's deep-seated antagonism, absent evidence of fault, intemperance, quarrel…
Previewing 2 of 3 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“A husband possesses the same individual rights as does a wife. It would be an incongruous situation should this Court approve the ejectment of a man from his marital home on the basis that a wife harbors deep-seated antagonism to the defendant [husband]”
Establishes the core holding that equal rights protect husbands from ejectment based solely on a wife's antagonism absent evidence of fault
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceThe wife filed a divorce complaint and immediately sought temporary relief ordering the husband to vacate the jointly-owned marital home. At the heari…
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The primary question raised in this interlocutory appeal is whether the trial court *198in this divorce case properly granted temporary relief in ordering th,e husband, who was found to be without fault, to absent himself from the home during certain hours pending final disposition of the divorce action.
Immediately after filing her complaint for divorce, the wife sought temporary relief in the form of a court order requiring the husband to absent himself from the jointly-owned home of the parties. A hearing was held on the issue. The trial judge found that the wife harbored deep-seated antagonism toward the husband; this created tensions; although there was no showing of fault on the part of the husband, it would be to the “best interests” of the parties and the small children for only one of the parties to remain at home during normal sleeping hours; and it would be safer and less inconvenient for the husband to move, so the husband was ordered to absent himself from the home during the hours of 9:30 p. m. to 7:00 a. m.
We are aware that the Supreme Court in Burnett v. Burnett, 158 Fla. 464, 28 So.2d 878, 879 (Fla.1947), held that the trial court was vested with the authority to issue a temporary order requiring the husband to vacate the home if public decency, safety of the parties, or welfare of the children requires. That case carefully recited that the sworn complaint, if proved, alleged habitual intemperance and extreme cruelty on the part of the husband, an intolerable domestic situation, the presence of children in the home, and ownership of the home in the wife. As authority the Supreme Court cited McGill v. McGill, 19 Fla. 341 (1882), another divorce case involving habitual intemperance and physical cruelty on the part of the husband, the presence of children, and ownership of the home in the wife.
We find that the above rule of law was improperly applied under the facts presented in the instant case. The only testimony given at the hearing was that of the husband and wife. This testimony is not in conflict. There was no evidence of any intemperance, of any quarreling or fighting between the parties, or of any adverse effect upon the children.
We are well aware of the extensive testimony presented to the Chancellor in this temporary hearing which touched upon severe emotional problems possessed by the wife and the Chancellor’s laudable efforts to reconcile the controversy. As stated above, the trial judge recited in his order that the evidence produced at the hearing does not establish fault on the part of the husband in the creation of an attitude of deep-seated antagonism on the part of the wife. A husband possesses the same individual rights as does a wife. It would be an incongruous situation should this Court approve the ejectment of a man from his marital home on the basis that a wife “ * * * harbors deep-seated antagonism to the defendant [husband] which is intensified by the continued presence of the defendant in the home * * * ”
Reversed.
JOHNSON, C. J., and CARROLL, DONALD K., J., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Bowles v. Bowles, 384 So. 2d 299 (Fla. 4th DCA 1980)…that the husband had another house to live in and husband’s attorney agreed that wife could live in the marital home unmolested until the case was litigated to a conclusion. Husband argues that the order was in error, relying upon Daniel v, Daniel, 236 So. 2d 197 (Fla. 1st DCA 1970). There the court found it error under the facts of that case to temporarily exclude husband from the marital home absent evidence of quarreling or fighting or any adverse effect upon the children. In this case, however, there was…
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Daniel v. Daniel, 243 So. 2d 247 (Fla. 1st DCA 1970)…does not establish fault on the part of the defendant in the creation of such attitude (deep-seated antagonism to the defendant) on the part of the plaintiff. * * * ” (See our opinion in an earlier appearance of this cause in this court reported in 236 So. 2d 197.) In view of the above finding of fact by the lower court, appellant argues that a predicate for .granting temporary relief under Section 61.071, Florida Statutes, F.S.A., has not been made. We agree that a husband who is without fault cannot be re…
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Kranz v. Kranz, 542 So. 2d 1011 (Fla. 3d DCA 1989)…uting its judgment for that of the master’s ... The master’s findings cannot be overturned by the trial court unless the findings are clearly erroneous.” Bragassa v. Bragassa, 505 So. 2d 556, 558 (Fla. 3d DCA 1987) (cites omitted). Daniel v. Daniel, 236 So. 2d 197, 198 (Fla. 1st DCA 1970) stands for the proposition that an affirmative showing of “intemperance ... quarreling or fighting between the parties” is a prerequisite to an order requiring a husband to absent himself from the marital home. The husband m…1 / 2
Authorities Cited
- McGill v. McGill, 19 Fla. 341 (Fla. 1882)
- Maude A. Burnett v. Burnett, 158 Fla. 464 (Fla. 1947)