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77 Fla. 181

Powell v. Powell

Supreme Court of Florida

Decided February 17, 1919

Supreme Court of Florida · decided 1919-02-17

<p>1. The findings of the Chancellor on the facts, where the evidence is taken before a Special Master, should not be disturbed by an Appellate Court unless such findings are clearly shown to be erroneous.</p> <p>2. Where a divorce is sought on the ground of desertion it should not only be shown that the alleged desertion is willful and obstinate, but it should also be shown that such desertion has continued for the Statutory period of one year.</p> <p>3 Evidence examined and found insufficient to sustain allegations of violent and ungovernable temper or extreme cruelty as grounds for divorce.</p>

Relies on Simpson v. First National Bank of Pensacola · Hancock v. Hancock · Beekman v. Beekman

Good law ✅— No negative treatment on recordhow we know

Decree affirmed · Decided 1919-02-17

How this case has been cited

Cited by 11 later decisions — most recently December 1959

11 state decisions

4019191920193019401950decided

Later decisions citing this case, by decade. The current decade is in progress, and our corpus holds fewer opinions from the most recent years, so the latest bars are undercounted — not a real decline.

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West, J.

¶1— Appellant brought suit for divorce against appellee in the Circuit Court of Okaloosa County. The grounds upon which the divorce was sought were (1) wilful, obstinate andi continued desertion of defendant by complainant fór a period of one year; (2) habitual indulgence by defendant in violent and ungovernable temper and (3) extreme cruelty by defendant to complainant.

¶2There was service of subpoena upon defendant and thereafter a decree pro confesso was duly entered' against her. The testimony was taken before a master and submitted to the chancellor whereupon, upon a consideration of same, it was held that the evidence was insufficient to warrant the granting of the relief prayed and the bill was dismissed at the cost of complainant.

¶3On this appeal the sole question presented is whether there was error in the order denying the relief prayed and dismissing the bill.

¶4The established rule here is that the findings of the chancellor on the facts, where the evidence is taken before a special master, should not be disturbed by an appellate court, unless such findings are clearly shown to have been erroneous. Simpson v. First National Bank of Pensacola, 74 Fla. 539, 77 South. Rep. 204; Baggott v. Otis, 65 Fla. 447, 62 South Rep. 362.

¶5With respect to the alleged desertion, the evidence wholly fails. If there had been a wilful and obstinate- desertion of complainant by defendant, there is no proof *183that such desertion had been continued for the statutory period at the time the suit was instituted. It is true that the defendant testified that “I want to be free from him;” “that I can’t live with him any more,” and “I just don’t want to be bound to him,” but when she reached this determination, if such it may be called, is not made clear by the evidence of the complainant upon whom the bui’den rested to show that the alleged wilful and obstinate desertion of complainant by defendant had continued for a period of one year as alleged.

¶6With respect to the other grounds alleged in the bill, it would serve no useful purpose to set out excerpts from the testimony. It is sufficient to say that the findings of the chancellor thereon are not clearly shown to be erron eons. On the contrary, such findings find ample support in the following decisions of this court. Ray v. Ray, 63 Fla. 558, 57 South. Rep. 609; Hancock v. Hancock, 55 Fla. 680, 45 South. Rep. 1020; Beekman v. Beekman, 53 Fla. 858, 43 South. Rep. 923; Palmer v. Palmer, 26 Fla. 215, 7 South. Rep. 864.

¶7It follows that the decree appealed from must be affirmed.

Browne, C. J., and Taylor, Whitfield and Ellis, J. J., concur.
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