Coslick v. Coslick , 136 Fla. 443 ( 1938 )

Bill of Complaint, seeking divorce on three alleged grounds and asking for a division of the property, was filed by George Coslick, Complainant. On an appeal from an interlocutory order denying motion to dismiss the bill of complaint and denying motion to appoint guardian for complainant and denying motion to strike certain portions of the bill, this court held that the motion to strike certain allegations contained in paragraph five of the bill should have been granted "on the ground that the allegations so included were not sufficient to show extreme cruelty on the part of defendant toward the complainant and were not material for any other purpose," and that the other orders appealed from should be affirmed. See Coslick, 124 Fla. 511,168 So. 847. The cause was remanded for further proceedings. There remained two alleged grounds of divorce, to-wit: violent and ungovernable temper and desertion.

Answer was filed denying the material allegations of the bill and considerable testimony was taken before the Chancellor at various times. During the hearing of testimony on December 9, 1936, the Chancellor made this statement:

"At this state of the proceedings, plaintiff having heretofore rested his case, the court wishes counsel on both sides to know that a divorce cannot be granted on the ground of cruel or abusive treatment or ungovernable temper on the part of his wife towards him, and wishes the testimony from now on to enter into the question of whether or not there is desertion on her part of him."

The allegations in the original bill of complaint relative to the desertion are as follows:

"VII. Plaintiff alleges that the defendant has been guilty of continued wilful and obstinate desertion of the Plaintiff for a period of more than one year in that during said period of time while plaintiff and defendant were the owners of certain hotels, the defendant refused to live with the plaintiff or permit him to have food or lodging in said hotels, although the earnings of the plaintiff were contributed to the upkeep of the hotels, making it necessary for the plaintiff to live at the Soldiers Home in St. Petersburg, Florida; that for more than one year last past, the plaintiff has maintained his residence in said Soldiers Home in St. Petersburg, Florida, as a direct result of the refusal of the plaintiff to permit him to have lodging and his meals in the hotels formerly owned by plaintiff and defendant and during the period of time complained of managed by defendant."

In paragraph four of the bill it was alleged that "plaintiff and defendant lived together as husband and wife until about the first day of January, 1934, when they separated, and since that time have not lived together." This date was amended to read "November, 1933."

After the plaintiff had closed and the Court had directed that the testimony from now on "should enter into the question of whether or not there is desertion on her part of him," the plaintiff with leave of the Court filed the following amendment:

"Comes now the plaintiff, George M. Coslick, and after first obtaining leave of court, amends his bill of complaint in the following particular, to-wit: By adding to Paragraph VII the following:

"``That since the institution of this suit, on to-wit: the 2nd day of April, 1935, the defendant has been guilty of wilful, obstinate and continued desertion of the plaintiff for more than one year last past; that said desertion has been wilful and obstinate and has continued from, to-wit: November, 1933, to the date of filing this bill of complaint, to-wit: the 2nd day of April, 1935, and thereafter without cessation until the date of this amendment, to-wit: the 10th day of December, 1936."

Upon motion the Court entered an order striking the following part of the amendment:

"That said desertion has been wilful and obstinate and has continued from, to-wit: November, 1933, to the date of filing this bill of complaint, to-wit: the 2nd day of April, 1935, and thereafter without cessation until the date of this amendment, to-wit: the 10th day of December, 1936."

This left only the following part of the amendment:

"That since the institution of this suit, on to-wit: the 2nd day of April, 1935, the defendant has been guilty of wilful, obstinate and continued desertion of the plaintiff for more than one year last past."

It is contended by the Appellant that the Chancellor having ruled that a divorce cannot be granted on the ground of cruel or abusive treatment or ungovernable temper, only the ground of desertion was left. It is further contended that as part of the amendment was stricken leaving only an allegation of desertion since the institution of this suit, under the doctrines announced by this Court in Palmer v. Palmer, 36 Fla. 385,18 So. 720, and Woodward v. Woodward, 122 Fla. 300, 165 So. 46, a divorce cannot be predicated upon desertion where the alleged desertion is confined to the period of time while divorce proceedings are pending, therefore the final decree of divorce should be reversed.

The doctrine announced in these two cases is undoubtedly sound but it has no application here. The pleading filed by Plaintiff below was not an amended bill of complaint but was an amendment to the bill of complaint. Nothing was stricken from the original bill and the only change made was "By adding to paragraph VII the following: That since the institution of this suit, on to-wit: the 2nd day of April, 1935, the defendant has been guilty of wilful obstinate and continued desertion of the plaintiff for more than one year last past;" the original bill of complaint sufficiently alleges desertion prior to the filing of the bill, upon which a decree of divorce could be rendered. There appears to be sufficient evidence to sustain the decree, and no reversible error appearing in the record, the decree appealed from is accordingly affirmed.

WHITFIELD, TERRELL, BROWN, BUFORD, and CHAPMAN, J.J., concur.

ON PETITION FOR REHEARING