# Stewart v. Stewart

> Supreme Court of Florida · November 26, 1946 · 158 Fla. 326

URL: https://www.frixlaw.com/law-library/cases/3395037

## Case

- **Full name:** Jacqueline Archer Stewart v. Glenn Stewart
- **Court:** Supreme Court of Florida
- **Decided:** November 26, 1946
- **Citations:** 158 Fla. 326; 29 So. 2d 247; 170 A.L.R. 1073; 1946 Fla. LEXIS 577
- **Precedential status:** Published
- **Opinion:** Addendum by Barns
- **Judges:** Thomas, Chapman, Brown, Barns, Terrell, Adams, Buford, Fabisinski
- **Cited by:** 23 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/3395037

## Opinion text

ON REHEARING GRANTED
BARNS, J.:
The appellee brought suit for divorce and appellant answered and counterclaimed for separate maintenance. The. issues were referred to a master who was authorized and directed to make findings of fact. The master found the equities for the appellee husband and the Chancellor entered a final decree granting him a divorce and denying the appellant wife separate maintenance. The wife appeals.
The parties charge each other with misconduct, misbehavior, desertion and general abandonment of the marriage obligations. Generally speaking, judging from the cold record it might reasonably be said that each proved his or her charges, however, the master had the parties and the witnesses before him and had better opportunity to judge of the merits of the controversy than can possibly be gleaned from the record by us. It is evident from the record that each of the parties have been derelict toward discharging the obligations of marriage and it might reasonably be said that recrimination has been established by each against the other if all the testimony is to be accepted at face value. However, the master and Chancellor found the equities with the plaintiff and it has not been made to affirmatively appear that inequity has been done by the Chancellor by his decree of divorce.
The application of the doctrine of recrimination in divorce cases is an outgrowth of the equity maxim that “he who comes into equity must come with clean hands.”
It is not an absolute but a qualifying doctrine. If it were
*328
to be applied strictly great inequity would be done, for it so often happens that neither party to a suit has been free from fault. This is especially true in divorce matters generally, and in this case in particular.
The principle is most applicable when a party seeks to take advantage of an act or omission which he has himself induced.
The maxim may be invoked because of the very nature of the wrong either for the benefit of the Court and society or for the benefit of the defendant when to do otherwise would be to allow plaintiff to take an unfair advantage of the defendant.
The application of the doctrine of recrimination like the doctrine of clean hands is a matter of sound judicial discretion dependent on public policy, public welfare and the exigencies of the case at bar.
Pursuant to the order granting a rehearing, able arguments of counsel for the respective parties have been heard, pertinent parts of the pivotal testimony have been inspected, rechecked and studied and the Court again being advised of its judgment to be given in the premises, it is our- view and holding that the order of reversal be set aside and held for naught and that the order and decree of the Chancellor below be and the same is hereby affirmed.
Affirmed.
TERRELL, CHAPMAN and ADAMS, JJ., concur.
BUFORD, J., concurs specially.
THOMAS, C. J., and FABISINSKI, Associate Justice, dissent.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/3395037. Public record. Not legal advice.