HARTZOG

v.

HARTZOG

Drew, justice.

On April 11, 1951, the parties to this appeal separated. On August 10, 1951, pursuant to Chapter 65.10, F.S.A., the wife instituted suit against the husband for separate maintenance, unconnected with causes for divorce. This suit terminated in a final decree dated November 30, 1951, which found that the wife had failed to prove the allegations of the bill and dismissed the same.

On April 18, 1952, one year and seven days after the parties had separated, the husband instituted this suit against the wife for divorce on the ground of desertion. A final decree was réndered finding the wife guilty of wilful, obstinate and continued desertion for more than one year and this appeal is from that decree.

Appellant urges that the period covered by the litigation in the separate maintenance suit could not be considered in determining the period of desertion under the ruling of this Court in Woodward v. Woodward, 122 Fla. 300, 165 So. 46, and Palmer v. Palmer, 36 Fla. 385, 18 So. 720, and that therefore, for that, and other reasons, the decree below was erroneous.

Corpus Juris Secundum states the general rule that the time consumed by the pendency of a suit between the same parties for divorce, annulment or separate mam-tenance may not be computed as a part of a period of desertion. 27 C.J.S., Divorce, § 56 (d) (3), p. 601. In 17 Am.Jur. 208, par. 109, the general rule is stated as follows :

“If an'action for divorce is instituted and prosecuted in good faith by one spouse against the other, the time during which the action is pending is not counted in reckoning the statutory period on which ah' action for desertion can be based, even though it may develop that there is as a matter of fact no ground for divorce in such pending suit. ' * * *" (Emphasis supplied).

In Palmer v. Palmer, supra [36 Fla. 385, 18 So. 723], this Court stated “The voluntary separation by a, wife from her husband while proceedings for a divorce are pending between them, where such proceedings are-not a sham and pretense, does not constitute such willful desertion as would authorize a divorce therefor. .The settled usage of'the courts, as a regard for public decency, is to require the parties, under such circumstances, to lire separately.” (Emphasis supplied.) In Woodward v. Woodward, supra [122 Fla. 300, 165 So. 47], the above language was repeated and approved, but, continuing on the same subject, the Court said:

“In the suit at bar, the one year statutory act of desertion was willful and obstinate in-its inception, and time began to run against the wife immediately upon her first desertion of her husband, although interrupted by the institution of litigation which stopped the running of the statute only so long as the litigation was pending. In the case now before us the wife did not at first file a suit for divorce against her husband but filed against him a suit for separate , maintenance, unconnected, with divorce. Section 4988, C.G.L., section 3196, R.G.S.

“Assuming that under the ,rule of Palmer v. Palmer, supra, the time when all the various suits were pending must he excluded from the .ten-year period the wife has 'willfully and obstinately continued to live apart from her husband, -which appears to have been ot-casioned because of her dissatisfaction , with her mother-in-law, there is nevertheless left in this-case a period of twelve months and twenty days of willful, obstinate, and continued living apart from, the husband persisted in by the wife during the ten years that have ensued since the first separation. * * * ” (Emphasis supplied.)

The latter case, Woodward v. Woodward, did not hold that the pendency of a suit under Chapter 65.10, F.'S.A. (alimony unconnected with cause of divqrce) was “time out” in a proceeding on the ground of desertion. This statute expressly provides that the parties may or may not be living together during the pendency of such proceedings, hence, the very foundation for the rule holding that the time consumed during the pendency of a divorce action cannot be Counted in calculating the period of desertion, is absent.

The appellant urges that the cases of In re Schriver’s Estate, 289 Ill.App. 581, 7 N.E. 2d 611, and Floberg v. Floberg, 358 Ill. 626, 193 N.E. 456, 457, are authority for the proposition that the pendency of an action for separate maintenance is “time out” in calculating the period of desertion. This is true under the Illinois statute there involved, which according to the opinion in the Floberg case, “corresponds with the divorce of a mensa et thoro, which was the only kind of divorce granted by the ecclesiastical law.” The Illinois statute involved in these cases was similar to our' Statute 65.09, F.S.A., which provides for alimony where a cause for divorce exists.

We therefore hold that the lower court was correct in determining that the time consumed in the litigation under section 65.10, F.S.A., could be included in determining the period of desertion. We find no merit in the other questions presented. Affirmed.

TERRELL and MATHEWS, JJ., concur. ROBERTS, C. J., and HOBSON and DREW, JJ., concur specially.

THOMAS and SEBRING, JJ., dissent.

ROBERTS*. Chief Justice,

(concurring specially).

T agree that, under the particular facts of this case, the Chancellor was correct in-holding that the pendency of Mrs. Hartzog’s suit for separate maintenance under section 65.10, Florida Statutes, F.S.A., did not toll the running of the statutory desertion period.

While, ordinarily, the separation of the-parties during divorce (or, as in this case,, separate maintenance) litigation “is presumed to be justifiable and excusable, since as a matter of public policy the parties should not live together during divorce litigation”. Betts v. Betts, Fla., 63 So. 2d 302, 305, it should be noted that the rulé-is a presumption, only; it is “an evidentiary fact, bearing upon the question whether the absence complained, of is such an abandonment as the statute makes a cause-for divorce, but it is not necessarily decisive of the question.” Betts v. Betts, supra, cited Easter v. Easter, 75 N.H. 270, 73 A. 30.

In the instant case, Mrs. Hartzog contended in her suit for separate maintenance that she was living apart from Mr. Hartzog because he locked her out of the house, i. e., “through his fault,” as provided by. section 65.10, supra. The Chancellor found that she had not sustained this allegation and dismissed her suit. The same issue was presented in the instant suit, and again her position was not sustained by the Chancellor. It is my opinion,, then, that the Chancellor was justified in finding, as a matter' of fact, that despite the pendency of her suit for separate maintenance, her absence from the marital domicile was “willful and obstinate” within the meaning of our statute, during the pendency of her suit.

It is my view, however, that the statement in the opinion by my brother Drew that “the time consumed in the litigation under section 65.10, F.S.A., could be included in. determining the period of desertion” should be limited to the particular facts here under consideration, since the fact of such litigation is, after all, merely evidence on the question of whether the abandonment is “willful and obstinate”, as required by the desertion statute.

Thus, a wife may be living separate and apart from her husband because of misconduct on his part which would not be sufficient as a ground for divorce, but which would be sufficient to form the basis of a charge of constructive desertion against him, within the rule of Gordon v. Gordon, Fla., 59 So. 2d 40, 46, that “The degree of severity of alleged misconduct or cruelty sufficient to justify a spouse in temporarily leaving the other need not be as strong in character as is necessary to justify the entry of a final decree of divorce.” If it is, in fact, found that a wife was justified in leaving the marital domicile-because of such misconduct on the part of the husband, then her absence therefrom is not necessarily converted into a “willful and obstinate” desertion merely because she files a suit for separate maintenance against •him under the provisions of section 65.10. Such a suit, is, again, but an. evidentiary fact on the question of the character of her abandonment of the marital domicile..

With the qualifications above noted, I concur in the opinion of Mr. Justice Drew.

HOBSON and DREW, JJ., concur.