Opinion
July 15, 1952.
Appeal from the Circuit Court for Dade County, Charles A. Carroll, J.
Sheppard Roberts, Fort Myers, for appellant.
Victor Levine, Miami, for appellee.
On July 9, 1945, appellant herein instituted in the Court of Common Pleas in Cuyahoga County, Ohio, a suit against appellee herein in which she sought a divorce upon the grounds extreme cruelty and gross neglect of duty.
Appellee filed an amended answer and cross petition in that cause and sought an absolute divorce upon the grounds extreme cruelty and gross neglect of duty. On November 16, 1948, the Ohio Court entered a "journal entry" which insofar as the prayer of each party for a divorce was concerned amounted to a final decree denying the prayer for divorce made by each of the parties. This "journal entry" or final decree was made and entered after the issues were created by the pleadings and upon the taking of testimony which was adduced by both parties.
The instant suit was filed by James William Riehl against his wife Vera Margarite Riehl on July 18, 1950. In his bill of complaint he prayed for a divorce and the ground asserted by him was extreme cruelty. Mrs. Riehl filed an answer in which she set up the proceedings which were had in the Ohio Court and alleged that the decree of the Ohio Court was entitled to full faith and credit and that it should be declared to operate as a bar to the instant suit.
The special master recommended and the Chancellor held that full faith and credit should not be given to the Ohio Court's decree. The final decree from which this appeal was prosecuted granted a divorce to the appellee as prayed for by him in his complaint.
In the case of Gordon v. Gordon, Fla., 59 So.2d 40, we endeavored to clarify the distinction which exists between res adjudicata and estoppel by judgment. A study of this record in the light of the opinion in the case of Gordon v. Gordon, supra, discloses the fact that in determining whether full faith and credit should be given to the Ohio decree the test proper to be applied is res adjudicata. The parties in both cases are the same and the cause of action i.e. extreme cruelty, was alleged by the husband in each suit. When such a situation obtains the decree of a sister state should be given full faith and credit because such decree places at rest every justiciable controversy.
The case of Bagwell v. Bagwell, 153 Fla. 471, 14 So.2d 841, is not controlling in the instant case because the test appropriately applied therein was estoppel by judgment and not res adjudicata.
Appellant's petition for suit money, costs and attorney's fees is granted and James William Riehl is hereby ordered to pay unto Vera Margarite Riehl the sum of $1,000 to cover the aforementioned costs and charges.
The final decree granting a divorce to the appellee is hereby reversed.
SEBRING, C.J., and TERRELL, THOMAS, HOBSON, ROBERTS and MATHEWS, JJ., concur.
CHAPMAN, J., concurring specially.
On July 18, 1950, the plaintiff-appellee, James William Riehl, filed his bill of complaint praying for a divorce in the Circuit Court of Dade County, Florida, against his wife, Vera Margarite Riehl, of 21 East 225th Street, Euclid, Ohio, on the ground of extreme cruelty. It appears that the parties were married in 1928 and three children were born to the marriage. The plaintiff-appellee alleged that the parties lived together as husband and wife until about December, 1948, when the husband was forced to abandon the wife and live separate and apart from her because of her misconduct.
The bill of complaint (a) alleged that the first act of cruelty occurred some three weeks after the parties married (1928) when the husband heard or learned that his wife was keeping company with a young man living in the same apartment house. The husband confronted the wife with the charge and she admitted it and gave as her reason for so doing that she was lonesome during the absence of the husband, who worked each night and was away from home. He further alleged that he condoned the misconduct of his wife in this instance and continued to live and cohabit with her and, in fact, their three children were each born after the alleged misconduct of his wife.
The bill of complaint (b) alleged that the second act of misconduct on the part of the wife occurred after the birth of the first child, when she began running around with another man, and when he confronted her with this charge or information, she immediately packed her clothes and went to the home of her parents. The parties later reconciled their differences and again lived and cohabited as husband and wife. The plaintiff-husband alleged that because of their child he acquiesced in all the requests of his wife, the defendant, and condoned her misconduct or alleged infidelity in his effort to preserve their marriage.
The bill of complaint as the third ground of extreme cruelty alleged (c) that after the parties moved into different surroundings the defendant-wife, instead of changing for the better, began running around with other men constantly and continuously, and when he asked her to observe her marriage obligations, she suggested in reply that he get himself a girl friend, as it would be agreeable to her as she intended to always have boy friends.
The defendant-wife criticized the plaintiff-husband, cursed and abused him publicly in an effort to destroy the plaintiff's business and undermine the confidence of plaintiff's business associates in him. On occasions when under the influence of alcohol the wife used abusive and insulting language to the plaintiff and their children. On many occasions the wife told the husband that she no longer loved him and did not care to live with him and they should separate; that she was cold and indifferent toward the plaintiff during the period the parties lived and cohabited together from 1928 continuously until he left the wife in 1947 because of ill health due to the conduct of the wife, but he alleged (Tr. 6) that he condoned all these acts of cruelty on the part of the wife.
The bill alleges further that because of the many acts of infidelity on the part of the wife occurring after their marriage in 1928 continuously until 1947, when the husband was forced to withdraw cohabitation, as living with the defendant was an intolerable burden, and so as to preserve his health, which had been adversely affected by the misconduct of his wife. Plaintiff husband alleged that he was now supporting his wife and children and expected so to do in the future to the best of his financial ability. From the above set forth, as well as other and further acts and conduct on the part of the wife, plaintiff alleges that the wife was guilty of extreme cruelty to the plaintiff-husband.
The defendant-wife, in her amended answer to the bill of complaint, denied each and every of the several allegations of extreme cruelty as alleged, and further stated that they lived together as husband and wife until a short time prior to April 26, 1944, when the husband on said date filed against her in the Courts of Ohio a suit for divorce. The parties were reconciled, the divorce suit dismissed and the parties lived together as husband and wife until July 9, 1945, when the wife filed a suit for divorce in the Courts of Ohio against her husband. The parties lived in separate rooms in the same house until November, 1947. That the wife in her suit for divorce in the Ohio Courts charged the husband with extreme cruelty and gross neglect of duty on the part of the husband toward his wife.
The answer further sets out that the husband filed in the Ohio Court an amended answer to the bill of complaint filed by the wife and additional thereto filed a cross-petition against his wife in which he charged the wife with extreme cruelty and gross neglect of duty. The Ohio Court heard the evidence adduced by the respective parties in support of the issues made by the pleadings and thereafter made and entered a final decree. A copy of the final decree is attached to defendant's answer and identified as Defendant's Exhibit "A". (See Tr. 14-22).
The following excerpt from defendant's Exhibit "A" (being an order or decree entered in the Court of Common Pleas of Cuyahoga County Ohio, as between the parties of this cause on April 4, 1949) is pertinent:
"The court further upon full consideration of the pleadings and of the evidence, finds that the plaintiff's prayer for divorce as set forth in her Amended Petition, should be and hereby is denied, and plaintiff's Amended Petition, only insofar as the prayer for divorce, be and hereby is dismissed as of and for April 19, 1948; but the Court reserves for further consideration said plaintiff's Amended Petition as to its prayer for alimony. Said reservation was made with the concurrence of defendant's counsel, who at the time believed that the Court had jurisdiction to make such reservation. Upon further consideration of the pleadings and the evidence, the Court finds that the prayer for divorce in the Amended Answer and Cross Petition of the defendant, James William Riehl, should be and hereby is denied, and the Court therefore hereby enters judgment, dismissing the Amended Answer and Cross Petition of said defendant, James William Riehl."
This cause was referred by the Chancellor below to a Special Master, with directions to take the evidence adduced by the parties and make findings of fact and law and recommendations as to an appropriate decree to be entered in the premises. The husband and wife each appeared before the Special Master and testified in the cause, as shown by the record. Additional thereto the testimony of several witnesses was taken in the State of Ohio, where the husband resided prior to coming to the State of Florida. The Special Master had an opportunity to observe each of the parties when they testified in the cause, as well as another witness or two called to show that the plaintiff-husband had resided in Florida for a period of more than 90 days prior to filing this suit. The Special Master read the testimony of the Ohio witnesses and held that the defendant failed to carry the burden of proof as required by law in showing that the Ohio decree was res adjudicata to the issues presented in the case at bar and therefore a decree should be entered for the plaintiff-appellee, which was so entered, and the defendant appealed.
The parties hereto are in accord on the point that the final decree made and entered by the Court of Common Pleas of Cuyahoga County, Ohio, on April 4, 1949, in the cause is such a final decree as is recognized by the provisions of Section 1 of Article 4 of the Federal Constitution, which must be given full faith and credit by the Courts of Florida. See Herron v. Passailaigue, 92 Fla. 818, 110 So. 539; Beckwith v. Bailey, 119 Fla. 316, 161 So. 576; Givens v. Givens, 121 Fla. 270, 163 So. 574; Thompson v. Thompson, 226 U.S. 551, 33 S.Ct. 129, 57 L.Ed. 347; Williams v. State of North Carolina, 317 U.S. 287, 63 S.Ct. 207, 87 L.Ed. 279.
We are committed to the rule that extreme cruelty recognized by our statute as a ground for divorce is such conduct by the husband or wife toward the other consort as will endanger his or her life, limb or health, or as will cause a reasonable apprehension of bodily hurt. The injury or danger of injury may be mental or physical, but it must be of such character as will render it impracticable for the complainant to discharge, with reasonable safety, his or her marital duties. Mere inconvenience, unhappiness and incompatibility of temperament or disposition rendering the marriage relation between the parties disagreeable or even burdensome, will not authorize a decree for divorce for extreme cruelty. Hancock v. Hancock, 55 Fla. 680, 45 So. 1020, 15 L.R.A., N.S., 670. The law requires that a bill of complaint seeking a divorce should contain allegations of all facts essential to the cause of action and the plaintiff's right to maintain the suit. The burden of proof by law rests on the plaintiff to establish by a preponderance of the evidence the allegations of all the essential facts to the cause of action, as well as the right of plaintiff to maintain the suit. Hancock v. Hancock, supra.
The test of the identity of causes of action, for the purpose of determining the question of res adjudicata, is the identity of the facts essential to the maintenance of action. It is of the essence of estoppel by judgment that it be made certain that the precise facts were determined by the former judgment. If there is any uncertainty as to the matter formerly adjudicated, the burden of showing it with sufficient certainty by the record or intrinsically is upon the party who claims the benefit of the former judgment. Prall v. Prall, 58 Fla. 496, 50 So. 867, 26 L.R.A., N.S., 577; Gray v. Gray, 91 Fla. 103, 107 So. 261; City of Miami Beach v. Miami Beach Imp. Co., 153 Fla. 107, 14 So.2d 172; Bagwell v. Bagwell, 153 Fla. 471, 14 So.2d 841; Coleman v. Coleman, 157 Fla. 515, 26 So.2d 445; Gordon v. Gordon, 160 Fla. 838, 36 So.2d 774, 4 A.L.R.2d 102 and Gordon v. Gordon, Fla. 59 So.2d 40.
Arnold Roberts, a witness for the plaintiff in the case at bar, also testified in the divorce case between the parties in the State of Ohio. He testified that the testimony as given by him in the Ohio Court and the Florida Court between these parties was substantially the same testimony. (Tr. 253). Mr. Weber testified that he gave testimony in this cause both in the Ohio Court and the Florida Court and that his testimony was substantially the same in both hearings. (Tr. 290). Mr. Mailander testified that he gave testimony in the Ohio Court between the parties as well as in the Florida Court and that his testimony was substantially the same in both Courts. (Tr. 302-3). Mrs. Weber testified that her testimony given in both Courts as between the parties was substantially the same. (Tr. 323). Mrs. Spinnler testified in the divorce case in the Ohio and Florida Courts and her testimony so given was substantially the same on both occasions. (Tr. 353). Counsel for defendant-appellant offered in evidence Exhibit No. 5, which was an exemplified copy of the entire proceedings in the divorce suit in Ohio, and the Special Master ruled that Exhibit No. 5 was improper evidence. (Tr. 147).
The record discloses the following proceedings (Tr. 145-7) when Mrs. Riehl, defendant-appellant, was on the witness stand:
"Mr. Roberts: At this time I would like to introduce in evidence as Exhibit 5 identified as the whole divorce proceedings in the Ohio Court.
"Mr. Levine: For what it may be worth, I have no objection. I think the Court will take judicial knowledge of the petitions filed. There are no facts involved in this case. All you have are rulings by the Court.
"Mr. Roberts: I think here you will find your actual complaint.
"Mr. Levine: Oh, no, no, let me just show the Court where it fails in lack of complaint.
"The Master: This is for the purpose of the record. Does this purport to be a complete record of the proceedings in the second action?
"Mr. Roberts: This is an exemplified copy of what purports to be an entire proceeding in the second divorce case.
"The Master: What purports to be the entire, but is it? May I ask you, Mr. Roberts, is it the entire proceedings?
"Mr. Levine: It is not.
"The Master: Mr. Levine, I have asked Mr. Roberts.
"Mr. Roberts: With the exception of the testimony itself, the actual testimony that was taken before the Court is not here, but all the papers that were filed are here. The papers filed by the plaintiff and the defendant and the orders of the presiding judge.
"The Master: In other words then this is an exemplified copy of the pleadings.
"Mr. Levine: That's right.
"The Master: In the case?
"Mr. Levine: That's right.
"The Master: Mr. Levine, they will be introduced and received in evidence as the pleadings filed.
(Received as Defendant's Exhibit 5.)
"Mr. Levine: I would like to call the Court's attention to this `specifications and details of the said gross neglect of duty and extreme cruelty will be given unto the said plaintiff should said plaintiff by motion so require.' And then it further says, `that upon the hearing hereof evidence of the said gross neglect of duty and extreme cruelty will be presented to the Court.' So there is no actual claim as we do it in the State of Florida, setting forth specific acts. Those acts are excluded. So actually we have no grounds upon which to base this complaint.
"The Master: Still the papers are admissible as copies of the pleadings that were filed.
"Mr. Levine: No question about it, but I would like to bring to the court's attention.
"The Master: Very well.
"Q. (By Mr. Roberts) Now, in that case, as far as you can recall, was the testimony that had been taken in that case, was it approximately the same as has been taken in this? A. That's right, it is.
"Mr. Levine: I object, if your Honor please. This witness isn't qualified to testify that the testimony in that case was similar to the testimony in this case, and her answers are self-serving.
"The Master: Granted.
"Q. (By Mr. Roberts) In the cross-petition in that case did your husband charge you with extreme cruelty? A. I believe that is what he called it.
"Q. What did the Judge do in that case?
"Mr. Levine: I object. Let the record speak for itself.
"The Master: Sustained.
"I am sustaining that on the grounds that this exhibit you have just introduced in evidence is the record, and it speaks for itself as to what the Judge did."
The general rule is that a person relying on the doctrine of res adjudicata as to a particular issue involved in a pending case bears the burden of introducing evidence to prove that such issue was involved and actually determined in the prior action, where this does not appear from the record. This may be established by the former record in the cause or by proof by competent evidence consistent therewith. Burthe v. Denis, 133 U.S. 514, 10 S.Ct. 335, 33 L.Ed. 768, 30 Am.Jur. 999-1000, § 285; 50 C.J.S., Judgments, § 719, pages 198-204; Little Brothers v. Barlow, 37 Fla. 232, 20 So. 240. In the latter case we held, "that, if the matter in issue in the former suit does not appear upon the record offered as evidence of such further adjudication, it may be shown by extrinsic evidence."
Mrs. Riehl testified that the issue of facts before the Ohio and Florida Courts as between the parties to this suit was identical. The Special Master and Chancellor held this testimony incompetent. Several other witnesses, supra, residing in the State of Ohio who testified in the Ohio divorce case and whose testimony was taken by deposition in the case at bar each, on cross-examination, stated that their testimony given in the cause was the same in both cases. Apparently the Special Master and Chancellor failed and otherwise omitted to give weight or consideration to this evidence going to the point that the issue of facts in the two suits was identical.
Exhibit No. 5, adduced in evidence by counsel for defendant-appellant comprising some 20 or 25 pages, is an exemplified copy of the several pleadings of the respective parties as filed in the Court of Common Pleas in the divorce suit in Cuyahoga County, Ohio. It is true that the evidence in the cause as taken was not included therein but that is not a sufficient legal reason to hold or conclude that the defendant-appellant failed to carry the burden of proof under our adjudications when she supplemented this omission by her own testimony and the testimony of other witnesses who previously testified in the Ohio case. This record, coupled with the above supplemented testimony, established the plea of res adjudicata.
I concur in the judgment of reversal.
TERRELL, THOMAS and MATHEWS, JJ., concur in conclusion.