Stewart v. Stewart , 158 Fla. 326 ( 1946 )

I recognize the force of the excellent and carefully considered opinion of the majority of the court. I think it will meet the approbation of the majority of the bar of the State of Florida, especially of those who have had the most to do with the many distressing situations which grow out of the married state. Nevertheless it introduces a new doctrine into the law of divorce in this State, a doctrine which, despite its appeal, has been resisted by the overwhelming weight of decisions of final courts of appeal throughout the nation, after carefully weighing its merits. This is true not only in cases decided in a bygone era, but in many cases decided quite recently. So that it cannot be yet said that there is a marked trend toward a judicial change in the old conceptions of recrimination as a defense in divorce actions.

It is true that enough decisions have accumulated over the years to the same general effect as is enunciated in the majority opinion, to warrant a sub-title in both Corpus Juris and in American Jurisprudence on the doctrine of "comparative rectitude." But a study of the cases cited in the footnotes will demonstrate that, with the exception of one or two jurisdictions, it has not been followed. North Carolina decisions are the result of a peculiarity of its statutes. Pennsylvania seemed to follow such a doctrine in some early cases, but is not committed. Michigan experimented with it, and finally rejected it. Washington (and possibly Texas) follow it more or less consistently. Maryland rejected it point blank. Without covering the whole field, it will be found that in spite of a great temptation to become more liberal, our courts have quite consistently resisted such temptation.

Our state has established the doctrine by statute. If it is to be adopted in Florida, I think we should "pass a law."

I reluctantly dissent from the opinion of the majority.

THOMAS, C. J., concurs.