This appeal brings on for review the final decree in a divorce case from the Circuit Court of Martin County, wherein Toley Engebretsen, husband and plaintiff, in the court below, was awarded a decree of divorce from Bessie Mae Engebretsen, wife and defendant below, and the custody of their two minor children, with the privilege granted to the mother of visiting the said children. For convenience, the parties will be referred to here as they appeared in the Court below.
The husband charged his wife with adultery and with extreme cruelty, which was denied by the wife in her answer. The wife, by way of cross complaint, or counterclaim, charged her husband with extreme cruelty; and each sought a decree of divorce from their bonds of matrimony.
There is nothing new or novel in the situation presented here and if this was an opinion on original hearing, the writer would be content merely to say, 'that we have examined the record, the briefs of counsel, and heard oral argument at the bar of this *Page 395 Court, and finding no reversible error, the decree of the circuit court is hereby affirmed.' But in as much as different conclusions have been reached from those set forth in the original opinion, filed March 24, 1942, and a different opinion and judgment is here now to be given and entered on this re-hearing, the writer deems it proper to set forth the essential facts as shown by the record and upon which this opinion and judgment is based.
The parties to this cause were married to each other in Jacksonville, Florida, on or about August 17, 1927, and immediately thereafter began their life together at a place in Martin County a few miles from a small fishing village located in said County, known as Salerno, Florida. The plaintiff husband had been married before. His former wife was dead, but he had a small son, about four years of age, as a result of his prior marriage. The plaintiff, together with his wife and small son, lived out in the country from Salerno for a time and from all that appears from the record it seems that the family life for the first few years was comparable to that of the average American family of modest means. At the time of their marriage, and for some time afterwards, the plaintiff was employed by the Arundel Corporation, as captain of a tug boat, and was stationed at Salerno. Under these circumstances things moved along uneventfully, the husband going to and from his work at Salerno and the wife performing the usual and ordinary household duties. Sometime afterward the husband resigned his position with the Arundel Corporation and opened up a business of his own at Salerno. The business is known as Toley's Boat Yard, at which small boats are repaired and a number of *Page 396 fishing boats are operated for hire, for the purpose of taking out fishing parties, and a small store, the stock in which consists of hardware and supplies for small boats, which stock is sold to the public as well as used by the plaintiff in his business of repairing boats. The husband proved himself to be a hardworking and thrifty man, the business was a success and he accumulated considerable money and property.
Not all of his wealth, however, was accumulated after his second marriage, as the record shows that he paid income tax on $14,000.00 the year prior to his marriage to the defendant in this case. After the business was established in Salerno the family moved from the place out in the country to Salerno, living in an apartment up over the store. The record shows further that defendant and her people were poor people, and that in addition to taking care of his own family, the plaintiff supported one or more members of his wife's family for a good portion of the time that he and the defendant lived together and permitted the wife to send money to her family in Jacksonville every two weeks and to make gifts of clothing to them; the record further shows that deposits of money were made in the post office from time to time in the name of the wife and at the institution of this litigation there was approximately $2500.00 on deposit in the post office in the name of the wife.
As time went on the wife began to grow careless and indifferent to her household duties, the record indicating that her step-son, Edward Engebretsen, was required to do practically all of the house work, (with the exception of caring for defendant's bed room), sweeping, cleaning the house, washing the *Page 397 dishes, etc., and was also required to look after the two small children, who are half-sister and half-brother, even to changing their diapers; because, as he testified, 'if I didn't do it, she wouldn't'; while the defendant spent more and more of her time away from the home. She also required the step-son to stay in his own bed room when he was not busy with his household chores, and instructed him not to talk to his father, telling him on one occasion, according to his testimony, 'that if I didn't stop talking to him that I wasn't going to wake up.'
The wife undertakes to explain her absence from and neglect of the home by claiming that she worked in plaintiff's store and thereby helped him to accumulate his property; but in view of the fact that the record discloses that the average, gross, monthly sales from this store was about $20.00 per month, we can hardly see why so much of her time was required and especially when it is shown that she had a home and two small children of her own who needed her care and attention much more than this small store did; nevertheless, in this state of affairs things drifted along, the husband's business was expanding, the children were growing older, and apparently, the father was demanding more of the boy, Edward's time in the business than the step-mother was willing for him to have.
About the year 1937 it appears that the wife begun to seek new interests, began to spend a good many of her evenings away from home without taking the trouble to explain to her husband that she was going to be away, or where she was going, or if she told him, she very often didn't tell him the truth about it; sometimes telling him that she was going to be over *Page 398 at a neighbor's house, when in fact she would be out "jooking." On one occasion going on a beach party with a man named Strickland and whose nick-name was "Strick," together with another man and a woman named Tatum, whose reputation is admittedly bad, and on this occasion the defendant was seen out on the beach with this man, "Strick," the man sitting on a log and she sitting in his lap with her arm around his neck; and another time, while returning from a beach party about two o'clock in the morning, with this same Mrs. Tatum and two men, the defendant and her companion, a man named Jones, was observed in the back seat of the car, with their arms locked around each other. On still another occasion, she and this same Mrs. Tatum went to a neighbor's house, a Mrs. Carsons', about seven o'clock in the morning and told her that she, the defendant, had been "jooking" all night and hadn't been to bed all night; she also told Mrs. Carson that all her husband cared about was money and that she didn't care anything about him. She said all she was in for now was a good time.
The escapades of the defendant mentioned here are only a few of the many such similar escapades indulged in by her, according to the record, during the years 1937, 1938 and 1939. It is contended by counsel for the defendant, the appellant here, that proof of such conduct on the part of the defendant is not proof of adultery. This we readily concede; but, we do think that continued indulgence by the defendant in this kind of conduct tends to show "desire" on her part. The record shows that the defendant's reputation for chastity in the small community in which she lived had become "bad," before the institution of *Page 399 these proceedings. There is the testimony of eight or ten witnesses, among whom are her neighbors and kins people, to this effect in the record.
This brings us now to the specific charge of adultery as alleged in the bill of complaint and the proofs adduced to sustain the charges. The eighth paragraph of plaintiff's bill, is as follows:
"VIII "That the defendant has also violated her marital duties by acts of adultery, by the defendant with her brother-in-law, Audley Hiers, on the night of December 12th, 1939, during an automobile trip from Salerno, Florida, to Fort Pierce, Florida, and vicinity and return. That the defendant also committed acts of adultery with the said Audley Hiers on various nights from the 5th of December, 1939, to December 12th, 1939, inclusive, except Sunday, at places unknown to your plaintiff. That again at a beach party at Jensen Beach in Martin County, Florida, on the night of October 5th, 1931, at about 9:00 o'clock P. M., the defendant committed adultery with the said Audley Hiers."
The plaintiff, to sustain the charges of adultery against his wife, produced as a witness, one, W.H. Strickland, (no relation to the Strickland whose nickname is "Strick"), who had been a constable for four years and a deputy sheriff for eight years in Georgia, who testified, in substance, as follows: That he had seen the defendant and Audley Hiers together; that on the night of December 11, 1939, right after dark, he and a man by the name of Lee DeLoach, followed the defendant and Hiers and saw them go down what was known as "Dead-End" Street: that the defendant *Page 400 and Hiers stopped their car and got out; that they went off about fifteen feet from the car and got down in the grass and bushes, out of sight, and stayed there on the ground about twenty minutes; that the witness had been coming to Salerno for the past three years; that he knew the defendant and Hiers; that he knew the defendant's reputation was bad; that he heard a lot of people talking about she and Hiers; that he followed them on this occasion, as he put it, 'to see if there was anything to it;' that he had seen the defendant and Audley Hiers together practically every night for about a week.
The next witness, Lee DeLoach, who owns a fish market in Salerno, and is a son-in-law of the witness, W.H. Strickland, testified, in substance, that he saw the defendant and Audley Hiers together every night, except one, between December 3rd, and December 12th; that he was with the witness, W.H. Strickland, when they followed the defendant and Audley Hiers down "Dead-End" Street; saw them get out of the car; that the grass around this spot was approximately 3 feet high; that the defendant and Hiers stayed out of sight 'fifteen minutes or better;' that the reputation of the defendant was not so good. The only denial of this testimony was the bare statement of the defendant and Audley Hiers that they did not go down that road and that they had never had improper relations; they neither one testified as to where they were on the night of December 11th, or offered any proof as to where they were on that particular night, although they admitted they were together many nights about that time.
The record in this case is voluminous, containing over 700 pages, but, in it is the testimony of many *Page 401 witnesses to the effect that the defendant and Audley Hiers were seen together every night, except one, between December 3rd and December 12th; the record shows that on the night of December 12, 1939, the defendant left her home before her husband quit work; that she left Salerno in an automobile with Audley Hiers, taking the two younger children with her; that she left the little girl at the home of an acquaintance of hers; that she and Hiers and the little boy went to Stuart, Florida, where they put the little boy out to go to a picture show; that she and Hiers left Stuart in a car by themselves; that she did not return that night until about eleven-thirty; that she and Hiers were gone from Stuart approximately five hours; that they did not return to Stuart to pick up the little boy from the picture show until he had seen the picture once, had seen part of it again and the person in the ticket office had gone; on her return, and upon being asked by her husband where she had been, she claimed that she had been to Fort Pierce to visit her sister, but the record shows that she did not visit her sister on that night; after considerable argument and bickering between her and her husband, she finally admitted to him that she had been out alone with Audley Hiers; and shortly after the separation she told Mrs. George Gunderson that she had admitted to her husband that she was out alone with Audley Hiers on this particular night, although she was then trying to get Mrs. Gunderson to come into court and testify that she, Mrs. Gunderson, went to Fort Pierce with her and Hiers on that occasion. The record also contains evidence to the effect that Audley Hiers tried to force his, (Hiers') wife, who is a sister of Mrs. Engebretsen, to go to court and *Page 402 testify that she, Mrs. Hiers, was with Hiers and Mrs. Engebretsen on the night of December 12th and that they went to Fort Pierce. Upon her refusal Hiers beat his wife, giving her a black eye and otherwise injuring her. That when Hiers found out that his wife was going to be a witness in this case for the plaintiff he informed her, 'that if she testified for the plaintiff she would wish she hadn't.'
Mrs. Hiers testified, in substance, that her sister, Mrs. Engebretsen, had taken her, (Mrs. Hiers'), husband away from her and that she had been to her sister and begged her to stop going with him. That Hiers had told her, (his wife), that he was in love with Mrs. Engebretsen; that he would kiss and "make over" a photograph of Mrs. Engebretsen that he had in his possession. The record shows that other of Mrs. Engebretsen's relatives had been to her and remonstrated with her about her conduct and associates, but to no avail; in fact, there is testimony in the record of numerous witnesses and covering hundreds of, pages, that would tend to show both desire and opportunity on the part of the defendant to commit the act charged, but we can see no good purpose in setting out any more of this sordid record than is here set forth. We think the testimony of the witnesses, Strickland and DeLoach, coupled with other proven circumstances in the case is sufficient proof of adultery.
Counsel for appellant has devoted considerable portions of his written briefs and oral argument at the bar of this Court to apparent conflicts in the testimony, but, in view of the fact that the testimony in this case was taken before the chancellor in person and that he had an opportunity to see and observe *Page 403 the witnesses on the stand, that as trier of the facts, it was his duty to reconcile such conflicts as properly could be reconciled, and to discard such testimony as was unworthy of belief, we think his findings of fact should have the same weight as the verdict of a jury; and having examined the entire record in this cause we are of the opinion that his findings of fact have ample evidence in the record to substantiate them. He found, among other things, that the defendant was guilty of adultery, and we see no reason to reverse his findings. Under the Statute law of this State an adulterous wife is not entitled to alimony, (Section 3195 Rev. Gen. Statutes, 1920; Section 4987 Comp. Gen. Laws of 1927).
Defendant's (appellant here), counsel has argued strenuously at the bar of this Court and in his briefs, that the defendant was entitled to compensation for services she rendered the plaintiff during the years she lived with him as his wife. As stated above, it is shown by the record that the husband, plaintiff below, supported one or more of her family during a good portion of the time they lived together; that he permitted his wife to send money and make gifts of clothing to her family and that there was a deposit in the post office in the name of the wife amounting to approximately $2500.00, on which the chancellor awarded to the wife in the final decree appealed from. We think that she has been amply compensated for the services rendered.
Our view is that the disposition of this cause depends entirely on the force, effect and sufficiency of the evidence, that the decree appealed from finds ample substantial support in the record and therefore should not be disturbed by the appellate court. *Page 404
BROWN, C. J., concurs specially.
BUFORD, J., concurs.