ALFRED J. MALBY
v.
MADGE C. MALBY
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The Florida Supreme Court reviewed a divorce case where both parties accused each other of extreme cruelty, and the husband also accused the wife of adultery. The court found sufficient evidence for both the cruelty charges and the adultery charge, leading to a reversal of the alimony award.
Yes, there was sufficient evidence to support the charges of extreme cruelty and adultery. Therefore, the award of alimony was incorrect.
“Although appellant propounds five questions in his brief, only two matters need be determined by us: the sufficiency of the evidence anent the charge of adultery against the wife and the correctness, therefore, of the award of alimony.”
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Join FLexlaw to unlock all legal intelligenceBoth the husband and wife sought divorce based on extreme cruelty. The husband also alleged adultery by the wife. The trial court found both parties g…
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Although appellant propounds five questions in his brief, only two matters need be determined by us: the sufficiency of the evidence anent the charge of adultery against the wife and the correctness, therefore, of the award of alimony.
Both parties sought a dissolution of the marriage on the ground of extreme cruelty and the husband on the further charge of adultery. The common accusation was held by the chancellor to have been sustained by each litigant but *657he dismissed the supplemental bills of the husband alleging infidelity. Result of the ruling was a decree for both husband and wife and an award to the latter of permanent alimony.
Our examination of the record has led us to the conviction that the averments of adultery contained in the husband’s supplemental pleadings were substantiated as well as the original charges of extreme cruelty. Having this view, we are constrained to reverse that part of the final decree which provides for the payment of alimony.
It is so ordered.
Terrell, C. J., and Buford, J., concur.
Whitfield, J., concurs in opinion and judgment.
Justices Brown and Chapman not participating as authorized by Section 4687, Compiled General Laws of 1927, and Rule 21-A of the Rules of this Court.
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Leonard v. Leonard, 259 So. 2d 529 (Fla. 3d DCA 1972)…nson, supra (102 So. 2d at 751); Patterson v. Patterson, supra (177 So. 2d at 255, footnote 2); Heath v. Heath, 102 Fla. 1071, 138 So. 796, 797. For the reasons assigned, the award of alimony was improper in this case. Malby v. Malby, 142 Fla. 656, 195 So. 601; Patterson v. Patterson, supra. Accordingly, that part of the judgment which provided for payment of alimony by the defendant husband to the plaintiff wife is reversed. . This divorce action was filed and decided in the trial court prior to the eff…
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Wilks E. Patterson v. Patterson, 177 So. 2d 254 (Fla. 2d DCA 1965)…1071, 138 So. 796 (defendant found briefly clothed lying on her bed with another man). The award of alimony was improper and should be eliminated if the defendant was guilty of adultery as well as extreme cruelty. Malby v. Malby, 1940, 142 Fla. 656, 195 So. 601. Since the award was based upon a misconception of a controlling legal principle applicable to the controversy, ordinarily we would reverse the final decree and remand for reconsideration in the light of correct legal principles. Green v. Putnam, Fl…
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Chandler v. Chandler, 230 So. 2d 723 (Fla. 2d DCA 1970)…in finding that the husband condoned his wife’s adulterous conduct the court also erred in awarding alimony to her. See Fla.Stats., Section 61.08, F.S.A.; Baker v. Baker, Fla.1927, 94 Fla. 1001, 114 So. 661; Malby v. Malby, Fla. 1940, 142 Fla. 656, 195 So. 601; Randolph v. Randolph, Fla. 1941, 146 Fla. 491, 1 So. 2d 480; Cowan v. Cowan, Fla.1941, 147 Fla. 473, 2 So. 2d 869; Eakin v. Eakin, Fla.1958, 99 So. 2d 854. We affirm the trial court’s award of custody of the minor children to the wife-appellee on…