GEORGE HORN, APPELLANT,
v.
ALMA HORN, APPELLEE
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This case concerns whether a New York judgment granting a separation from bed and board for abandonment bars a subsequent Florida divorce action on different grounds. The Florida Supreme Court held that a separation judgment is not res judicata or estoppel to a subsequent divorce action based on different grounds of misconduct.
A judgment for separate maintenance on the ground of abandonment does not constitute res judicata or estoppel to a subsequent divorce action based on different grounds of alleged habitual intemperance or extreme cruelty, as the actions are entirely different in nature.
“where one spouse brings separate maintenance proceedings on the ground of abandonment, the judgment secured is not res judicata or estoppel as to Florida divorce proceedings by the other spouse on grounds of alleged habitual intemperance or extreme cruelty since the actions are entirely different”
Establishes the core legal principle that a separation judgment on one ground does not bar a divorce action on different grounds
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Join FLexlaw to unlock all legal intelligenceIn August 1953, Alma Horn filed for divorce from George Horn in Dade County on grounds of extreme cruelty and habitual intemperance. A New York court …
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TERRELL, Justice.
In August, 1953, appellee filed her complaint in Dade County praying for divorce from appellant on the ground of extreme cruelty and habitual intemperance. Defendant answered by denial and interposed the defense of separation from bed and board for abandonment in New York. Copy of the final judgment of the New York court entered April 30, 1953, was attached to the complaint. It awarded custody of their child, twenty-two months, to the mother and required the husband to pay $15 per week for its support.
At final hearing, the Circuit Court of Dade County ordered the husband to pay the wife $165, arrears due for support of the child under New York decree, and to continue such payments weekly. He granted the wife an absolute divorce, ordered the husband to contribute $20 each week for support of the child and to pay the wife’s attorneys fees, including cost of the litigation. The husband has appealed from that decree.
The primary question is whether or not the New York decree granting the husband a divorce from bed and board on the ground of abandonment bars the wife’s action for divorce in Dade County on the ground of habitual intemperance.
In our view this question requires a negative answer on authority of Gordon v. Gordon, Fla.1952, 59 So. 2d 40; Coleman v. Coleman, 157 Fla. 515, 26 So. 2d 445, and Roy v. Roy, Fla.1954, 73 So. 2d 294. These cases approve the doctrine that where one spouse brings separate maintenance proceedings on the ground of abandonment, the judgment secured is not res judicata or estoppel as to Florida divorce proceedings by the other spouse on grounds of alleged habitual intemperance or extreme cruelty since the actions are entirely different.
Other questions have to do with whether or not the evidence supports the final decree and whether or not the said decree was equitable as to right of visitation of the minor child by the father on account of the distance between the domicile of the mother and father. These questions have been examined but we find no reversible error so the judgment is affirmed.
Affirmed.
DREW, C. J., concurs specially.
HOBSON and O’CONNELL, JJ., concur.
DREW, Chief Justice
(concurring specially).
I concur in the opinion and judgment above with the following observation:
The final decree in this cause contained a reservation of jurisdiction of “the right to grant alimony to the plaintiff in the future.” Appellant’s Fifth Assignment of Error was directed to this provision of the final decree but the same was not argued in the brief and we must, therefore, conclude that it was abandoned. 30 F.S.A. Supreme Court Rule 36(9).
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Stone v. Stone, 111 So. 2d 486 (Fla. 3d DCA 1959)…itigated and decided. Prall v. Prall, supra; Bagwell v. Bagwell, 153 Fla. 471, 14 So. 2d 841; Coleman v. Coleman, 157 Fla. 515, 26 So. 2d 445; Gordon v. Gordon, Fla.1952, 59 So. 2d 40. See Roy v. Roy, Fla.1954, 73 So. 2d 294; Horn v. Horn, Fla.1956, 85 So. 2d 860; Shirley v. Shirley, Fla.App.1958, 100 So. 2d 450; Restatement, Judgments, § 74, comment d. In this case, in applying estoppel by judgment, the chancellor used the res judi-cata rule ryhich is applicable only when the causes of action are the same…
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Shirley v. Shirley, 100 So. 2d 450 (Fla. 2d DCA 1958)…upra, ‘The test of the identity of the causes of action, for the purpose of determining the question of res adjudicata, is the identity of the facts essential to the maintenance of the actions.’ (Italics supplied.)” See also Horn v. Horn, Fla.1956, 85 So. 2d 860. One who invokes and relies on a defense that a former adjudication was res judicata by issues raised has the burden of proof to establish the former adjudication. “If there is any uncertainty to the matter formerly adjudicated, the burden of show…
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Berman v. Berman, 103 So. 2d 611 (Fla. 1958)…the wife. Even if it be assumed arguendo that § 1161, supra, •should be interpreted to mean “abandonment without provocation” 'as a ground for a separation judgment, the question is concluded by the decision of this court in Horn v. Horn, Fla. 1956, 85 So. 2d 860, 861. There, a New York judgment of separation from bed and board in favor of the husband on the ground of abandonment was pleaded as a defense to the wife’s suit for divorce in Florida on the grounds of extreme cruelty and habitual intemperance. In…
Authorities Cited
- Sebastian v. THE City of Miami (Fla. 3d DCA 2020)
- Horn v. Horn, 73 So. 2d 905 (Fla. 1954)
- Coleman v. Coleman, 157 Fla. 515 (Fla. 1946)
- ROY v. ROY, 73 So. 2d 294 (Fla. 1954)