ELIZABETH P. CURTIS
v.
J. GERRY CURTIS
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Elizabeth P. Curtis sought a divorce from J. Gerry Curtis on grounds of habitual intemperance. The trial court, contrary to the master's report and overwhelming evidence, dismissed the divorce complaint. The Florida Supreme Court reversed, holding that when statutory grounds for divorce are sufficiently proven and the complaining spouse is without fault, the chancellor must grant the divorce.
The trial court erred in dismissing the divorce petition. When a statutory ground for divorce has been sufficiently alleged and sustained by overwhelming proof, and the complaining spouse is without fault in bringing about the ground, the chancellor has a duty to grant the divorce. The decree is reversed with directions to enter a decree of divorce.
“Plaintiff has duly alleged and has established by competent evidence that she is legally married to the defendant, that no children have been born as the issue of her marriage with the defendant; and that he has been guilty of habitual intemperance.”
Master's finding that the plaintiff proved all material allegations of her divorce complaint.
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Join FLexlaw to unlock all legal intelligenceElizabeth P. Curtis and J. Gerry Curtis were legally married with no children. The defendant had a habit of drinking whiskey every afternoon after wor…
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Appeal brings for review decree, after testimony taken and report of master, dismissing bill of complaint for divorce.
*345The chancellor made no definite findings of controverted fact, but. he did sustain exceptions to master’s report. The master’s report, amongst other things, contained the following:
“a. Plaintiff has duly alleged and has established by competent evidence that she is legally married to the defendant, that no children have been born as the issue of her marriage with the defendant; and that he has been guilty of habitual intemperance. She has also established by competent evidence the other material allegations of her bill of complaint. The equities are with the plaintiff and against the defendant and she is entitled to the relief prayed for, except as set forth in the following paragraph.”
The ground for divorce, as alleged in the bill of complaint, was habitual intemperance. It is not necessary for us to detail the testimony. It is sufficient to' say that the evidence establishes the fact that the defendant was in the habit of drinking some whiskey every afternoon before going home from his work and that on an average of at least 3 times a week he drank enough to become intoxicated and to be definitely under the influence of whiskey.
Our view is that the finding of the master was the only logical finding which could be adduced from the evidence. See Hays v. Hays, 86 Fla. 350, 98 So. 67; Kennedy v. Kennedy, 101 Fla. 239, 134 So. 205, and cases there cited.
When the statutory ground for divorce had been sufficiently alleged and the allegation had been sustained by overwhelming proof it was the duty of the Chancellor to grant the divorce in a case where the complaining spouse is shown (as in this case) to be without fault in bringing about the existence of the alleged ground for divorce, See 27 C.J.S. page 535, Sec. 15 and authorities there cited.
The cost of this appeal should be taxed against the appellee and the appellant should be allowed a fee for her attorney for the prosecution of this appeal in the sum of $150.00 to be paid by the appellee within thirty days from the going down of the mandate herein and the decree should be reversed with directions that a decree of divorce be entered in favor of complainant, appellant.
*346The matter as to whether or not permanent alimony will be allowed, and, if so, in what amount, will be left to the discretion of the Chancellor.
Reversed and remanded with directions.
So ordered.
CHAPMAN, C. J., TERRELL and ADAMS, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Brummitt v. Brummitt, 115 So. 2d 576 (Fla. 3d DCA 1959)…the chancellor, as expressed by his decree, was faced with a most difficult case to decide. Nevertheless-, where the evidence, as here, could support only one conclusion, it was his duty to render a decree consistent therewith. In Curtis v. Curtis, 156 Fla. 344, 22 So. 2d 791, the Supreme Court of Florida said: “When the statutory ground for divorce had been sufficiently alleged and the allegation had been sustained by overwhelming proof it was the duty of the Chancellor to grant the divorce in a case whe…
Authorities Cited
- Kennedy v. Kennedy, 101 Fla. 239 (Fla. 1931)
- Loeb v. City of Jacksonville, 101 Fla. 429 (Fla. 1931)
- Hayes v. Hayes, 86 Fla. 350 (Fla. 1923)