Mitchell v. Mitchell , 91 Fla. 427 ( 1926 )

The testimony in this case was taken before the Chancellor. From that testimony the Chancellor finds as a matter of fact, and expressly recites in the final decree, that "the parties brought about the separation for one year — mutually — and for the purpose of procuring a divorce and that in the alleged desertion and bringing of this suit there is collusion between the parties; that any decree of divorce entered in this cause would simply be a 'divorce by consent,' contrary to public policy as well as contrary to the purpose and intent of the laws relating to divorce; that the complainant has not established the existence of any willful, obstinate and continued desertion of the complainant by the defendant for one year."

There is no doubt as to either the existence or the wisdom of the rule that "where the decree of the Chancellor is not supported by, but is contrary to the evidence, it will be reversed by this court on appeal." Wolkowsky v. Kirchick,85 Fla. 210; 95 South. Rep. 611. Neither can there be doubt as to either the existence or the wisdom of the converse rule that "the findings of the Chancellor on the evidence will not be disturbed unless such findings of fact are clearly shown to be erroneous." Brickall v. Town of Ft. Lauderdale, 75 Fla. 622;78 South. Rep. 681.

From an examination of all the evidence, I do not regard it is clearly shown that the Chancellor is unsupported in his finding of fact "that the complainant has not established the existence of any willful, obstinate and continued desertion of the complainant by the defendant for one year," or that such finding was clearly erroneous. Nor does an examination of the pleadings in the case, and the progress thereof, convince me that the Chancellor was in error in his further finding "that in the alleged desertion and bringing of this suit there is collusion between the parties."

I am of the opinion that the Chancellor should be sustained in his findings, and therefore dissent.

ELLIS, J., concurs.