CAROLYN DIKE NELMS, APPELLANT,
v.
JAMES Q. NELMS, APPELLEE
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In this interlocutory appeal, the Fourth District Court of Appeal reversed a trial court's order refusing to dissolve a marriage and instead ordering the parties to seek counseling. The court held that when evidence demonstrates a marriage is irretrievably broken, the trial judge must dissolve the marriage rather than attempt reconciliation through counseling.
A trial court must dissolve a marriage when evidence demonstrates it is irretrievably broken, even if the chancellor believes reconciliation efforts through counseling may be beneficial. The court must make an independent finding based on the evidence adduced; failure to contest the allegation or stipulation that the marriage is broken does not suffice.
[1] A trial court abuses its discretion by refusing to dissolve a marriage when the evidence demonstrates the marriage is irretrievably broken beyond repair.
[2] A stipulation or failure to contest the allegation that a marriage is irretrievably broken is insufficient to dissolve the marriage; the trial court must make such a find…
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Join FLexlaw to unlock all legal intelligence“If the evidence demonstrates the marriage is broken beyond repair he must dissolve the marriage, Carrigan v. Carrigan, Fourth D.C.A., 283 So.2d 574, opinion filed October 12, 1973, commendable as may be his efforts to effectuate a reconciliation.”
Establishes the mandatory duty to dissolve marriage when evidence shows irretrievable breakdown, despite judicial preference for reconciliation.
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Join FLexlaw to unlock all legal intelligenceThe wife filed a petition to dissolve the marriage alleging it was irretrievably broken, and the husband admitted this allegation. At trial, the wife …
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DOWNEY, Judge.
This is an interlocutory appeal from an order of the trial court refusing to dissolve the marriage of the parties and ordering them to seek marriage counselling.
The wife filed her petition to dissolve the marriage because it was irretrievably broken. The husband answered admitting said allegation. The parties entered into an agreement providing for child support, possession of the home by wife and children, and other incidental matters. At final hearing the wife testified the marriage was irretrievably broken because she no longer loved her husband and could not live with him. Further inquiry developed that he had physically abused her during the marriage and that he paid little or no attention to their children; that they had spent untold hours discussing their problems, always without success; that she had suffered mental and physical abuse from him she would never forget; that he had sued her once before for divorce. The trial judge then interrogated the husband who stated essentially that at one time he had tried to get her to seek counselling without success; that in view of her steadfast position for some five months that the marriage was broken, he did not feel they could put it back together. The chancellor then announced he would require them to seek counselling in the hope the marriage might be saved. From such a judgment ordering counselling and withholding a determination as to a termination of the marriage, the wife appealed and the husband joined with her in the appeal.
It seems clear now that failure to contest the allegation that the marriage is irretrievably broken, or a stipulation that it is so broken, does not suffice. The chancellor must make that finding based upon the evidence adduced. Ryan v. Ryan, Fla. 1973, 277 So. 2d 266; Riley v. Riley, Fla.App. 1972, 271 So. 2d 181. If the evidence demonstrates the marriage is broken beyond repair he must dissolve the marriage, Carrigan v. Carrigan, Fourth D.C.A., 283 So. 2d 574, opinion filed October 12, 1973, commendable as may be his efforts to effectuate a reconciliation.
Based upon the pleadings and evidence in the court below, it is our view that the chancellor abused his discretion in refusing to dissolve the marriage. Accordingly, the order appealed from is reversed with directions to enter a final judgment dissolving the marriage.
WALDEN and MAGER, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
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Reopelle v. Reopelle, 587 So. 2d 508 (Fla. 5th DCA 1991)…final judgments. In her amended brief, Gloria states: Even if the parties agree the marriage is irretrievably broken, the court must make a formal finding that it is broken based on evidence educed. An oral finding is insufficient (Nelms v. Nelms, 285 So. 2d 50 ([Fla. 4th DCA] 1973)). Such a finding is a necessary judicial act. McClelland v. McClelland, [318 So. 2d 160 (Fla. 1st DCA 1975) ]. Neither of the cases cited stands for the proposition that a written finding that the marriage is irretrievably bro…
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Forney B. Stafford v. Stafford, 294 So. 2d 25 (Fla. 3d DCA 1974)…e marriage was broken beyond repair or not. Further, although both parties at the above hearing stipulated that their marriage was irretrievably broken, such a bare stipulation that it is so broken does not suffice. See Nelms v. Nelms, Fla.App.1973, 285 So. 2d 50 and cases cited therein. Accordingly, we must reverse the chancellor’s order dissolving the marriage of the parties and remand with directions to hold a full evidentiary hearing at which all of the surrounding facts and circumstances are to be inqui…
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Oliver v. Stufflebeam, 155 So. 3d 395 (Fla. 3d DCA 2014)…etrievably broken” before a dissolution of that marriage can be granted. § 61.052(1)(a), Fla. Stat. (2013) (requiring that facts must support a “marriage is irretrievably broken,” to grant a dissolution of marriage) (emphasis added); Nelms v. Nelms, 285 So. 2d 50, 50 (Fla. 4th DCA 1973) (“It seems clear now that failure to contest the allegation that the marriage is irretrievably broken, or a stipulation that it is so broken, does not suffice. The chancellor must make that finding based upon the evidence add…
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
- Ryan v. Ryan, 277 So. 2d 266 (Fla. 1973)
- Riley v. Riley, 271 So. 2d 181 (Fla. 1st DCA 1972)
- Carrigan v. Carrigan, 283 So. 2d 574 (Fla. 4th DCA 1973)