LILLIAN VAN SIMMONS DURHAM
v.
ALBERT G. DURHAM
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In this 1939 Florida divorce case, the Supreme Court affirmed a trial court's grant of divorce to the husband based on the wife's ungovernable temper. The Court applied the deferential standard that findings of fact by a trial judge will not be disturbed on appeal absent a clear showing of abuse of discretion.
The decree granting divorce was affirmed. The appellate court held that where evidence is conflicting, the trial court's factual findings will not be disturbed unless clearly erroneous, and the burden is on the appellant to demonstrate an abuse of discretion, which was not met in this case.
“the rule guiding or controlling this Court is that the findings of the Chancellor on questions of fact will be affirmed unless there appears an abuse of discretion”
States the standard of review for trial court findings of fact on appeal
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Join FLexlaw to unlock all legal intelligenceLillian Van Simmons Durham and Albert G. Durham married on October 22, 1936, and cohabited until November 19, 1937. The wife, a trained nurse who had …
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This case is before the Court on appeal from a final decree granting a divorce dated May 21, 1938, entered by the Circuit Court of Orange County. The parties are each above fifty years of age and the record shows that the defendant below had been married some two or three times prior to her intermarriage with the plaintiff on October 22, 1936. They cohabited as husband and wife until November 19, 1937. The defendant below had a *507grown son by a former marriage and by training and education she was a trained nurse. The plaintiff below was a traveling salesman and earned a small annual sum but had no other income. The bill of complaint charged the defendant with an ungovernable temper and the different witnesses gave testimony as to the conduct and decorum of the defendant from time to time as observed by them while visiting the home or as neighbors in a position to see and observe them in their home life. The defendant, by an appropriate pleading, denied the allegations of the bill of complaint and a reference was' made to a Master, and upon his report coming before the Court a divorce was granted to the plaintiff below.
The case is here'on appeal and the final decree is assigned as error. We have read the evidence adduced by the respective parties and on many material issues find or observe a conflict in the evidence. The Chancellor ruled on these conflicts or disputes in the testimony and the rule guiding or controlling this Court is that the findings of the Chancellor on questions of fact will be affirmed unless there appears an abuse of discretion. The burden is on the appellant to show that the Chancellor abused his discretion in entering the final decree appealed from and this burden has not been fully established.
Where the evidence is conflicting, the findings of a Chancellor will not be disturbed unless such findings are clearly shown to be eiToneous. This rule has' been observed by this Court from its earliest history. See Waterman v. Higgins, 28 Fla. 660, 10 So. 97; Fuller v. Fuller, 23 Fla. 236, 2 So. 426; Lewter v. Price, 25 Fla. 574, 6 So. 439; Bothamly v. Queal, 58 Fla. 396, 50 So. 415; Viser v. Willard, 60 Fla. 395, 53 So. 501; Theisen v. Whidden, 60 Fla. 372, 53 So. 642; Bank v. Jasper v. Tuten, 62 Fla. 423, 57 So. 238; Dixon Lumber Co. v. Jennings, 63 Fla. 405, 57 So. 615; *508Terra Ceia Estates v. Taylor, 68 Fla. 261, 67 So. 169; McGill v. Chappelle, 71 Fla. 479, 71 So. 836; Farrell v. Forest Inv. Co., 73 Fla. 191, 74 So. 216, 1 A. L. R. 25; Hill v. Beacham, 79 Fla. 430, 85 So. 147; Sabdlin v. Hunter, 70 Fla. 514, 70 So. 553; Shad v. Smith, 74 Fla. 324, 76 So. 897; Edney v. Stinson, 90 Fla. 335, 105 So. 821.
The decree appealed from is hereby affirmed.
Whitfield, P. J., and Brown and Chapman, J. J., concur.
Buford, J., concurs in opinion and judgment.
Justices Whitfield and Chapman not participating as authorized by Section 4687 Compiled General Laws of 1927 and Rule 21-A of the Rules of this Court.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Windham v. Windham, 144 Fla. 563 (Fla. 1940)…89 So. 24. There is a presumption in law an'd equity as to the correctness of the ruling of the lower court and the burden here was on the appellant to show that error had been committed. We fail to find an abuse of discretion. See Durham v. Durham, 137 Fla. 506, 188 So. 609; Jessen v. Jessen, 140 Fla. 670, 191 So. 768. It is next contended that there is no testimony in the record to support that portion of the final decree in holding that the plaintiff and the defendant were tenants in common each of an u…
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Gables Racing Assoc., Inc. v. Persky, 148 Fla. 627 (Fla. 1940)…. The findings of a chancellor based on conflicting evidence will not be disturbed unless they are clearly shown to be erroneous. See Meola v. Sparks, 138 Fla. 364, 189 So. 408; Cuno Corporation v. Lamb, 138 Fla. 773, 190 So. 246; Durham v. Durham, 137 Fla. 506, 188 So. 609; Gross v. Hammond, 138 Fla. 20,188 So. 789. The decree appealed from is hereby affirmed. WHITFIELD, C. J., and CHAPMAN, J., concur. BROWN, J., concurs in conclusion. BUFORD, J., concurs in opinion and judgment. Chief Justice TERRELL…
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Putman v. Putman, 154 So. 2d 717 (Fla. 3d DCA 1963)…retion in arriving at the amounts and the sums he fixed therein. This, save and except as hereinafter indicated, neither the appellant nor the appellee has done. Therefore, the final decree should be affirmed under the authority of Durham v. Durham, 137 Fla. 506, 188 So. 609; Bennett v. Bennett, Fla. App.1962, 146 So. 2d 588. Touching briefly on the major points which appear to be raised by the points presented by both parties, the title to the residence was an estate by the entire-ties. The record does no…
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited (15 total)
- Farrell v. Forest Inv. Co., 73 Fla. 191 (Fla. 1917)
- Rosa Chappelle McGill and her husband S. D. McGill v. Chappelle, 71 Fla. 479 (Fla. 1916)
- Giles v. Garland, 70 Fla. 514 (Fla. 1915)
- Aden E. Waterman v. Reola A. Higgins, 28 Fla. 660 (Fla. 1891)
- Shad v. Smith, 74 Fla. 324 (Fla. 1917)
- Hill v. Braxton Beacham and Berta Beacham, 79 Fla. 430 (Fla. 1920)
- Fuller v. Abbe A. Fuller, 23 Fla. 236 (Fla. 1887)
- Terra Ceia Ests. v. Nannie E. Taylor, 68 Fla. 261 (Fla. 1914)
- Viser v. Willard, 60 Fla. 395 (Fla. 1910)
- Edney v. Stinson, 90 Fla. 335 (Fla. 1925)