Shaw v. Shaw

• Decision Date: 12 May 1976
• Docket Number: No. 47710,47710
• Parties: Gerald B. SHAW, Petitioner, v. Jean A. SHAW, Respondent.
• Court: Florida Supreme Court

Page 13

334 So.2d 13

Gerald B. SHAW, Petitioner, v. Jean A. SHAW, Respondent.

No. 47710.

Supreme Court of Florida.

May 12, 1976.

Rehearing Denied July 16, 1976.

Edward Schroll, Miami, for petitioner.

Milton M. Ferrell, Miami, for respondent.

SUNDBERG, Justice.

This is a petition for writ of certiorari to review a decision of the Third District Court of Appeal reported at 314 So.2d 205, which is asserted to be in conflict with Westerman v. Shell's City, Inc., 265 So.2d 43 (Fla.1972), as well as similar cases which announce the proposition that an appellate court may not substitute its judgment for that of the trial court by re-evaluating the evidence in the cause. ¹ Jurisdiction vests in this Court pursuant to Article V, Section 3(b)(3), Florida Constitution.

In proceedings for dissolution of marriage between petitioner-husband and respondent-wife, in which respondent was the moving party, the trial judge on July 15, 1974, entered an amemded final judgment (i) finding that the marriage was irretrievably broken and thereby dissolving the bonds of marriage between the parties; (ii) finding that wife, 'although she is in her 49th year and has been married 20 years and has minor children, is capable of supporting herself' and, based upon the financial affidavits of the parties, exhibits admitted into evidence, and the testimony, that the husband could not sustain both households, therefore ordering that the husband pay to the wife rehabilitation alimony in the amount of $50 per week for a period of one year commencing July 1, 1974; (iii) adjudicating that certain savings accounts of the parties belonged to both parties equally and ordering that the accounts be equalized based upon balances as of the date of the final hearing; (iv) granting custody of the two minor children of the parties to the wife with rights of visitation in the husband and ordering the husband to pay to the wife the sum of $30 per week per child until said child reaches majority, marries or becomes self-supporting; (v) granting use and occupancy of the marital home to the wife until the children move out or until she remarries or the children reach their majority provided that the wife should make all payments on the home place, including mortgage payments, taxes, insurance, utilities, and all repairs and maintenance with the stipulation that the home place together with its contents belong to the parties as tenants in common; (vi) providing that all future medical and dental expenses of the children were to be divided equally between the husband and wife; (vii) providing for transfer by the husband to the wife of title to an automobile in the possession of the wife; and (viii) reserving jurisdiction for costs and assessment, if any, of attorneys' fees, but not retaining jurisdiction for any other purposes.

The evidence at the final hearing upon which the amended final judgment is based was essentially as follows: The 49-year-old wife has a high school education, plus one year of business college. She has also attended court reporting school and has engaged in sales work for less than a year. She has had 16 years of experience in secretarial work, in addition to three years' experience as a legal secretary, plus 10 to 12 years of legal secretarial experience working intermittently for the husband.

The husband is an attorney at law practicing in Miami, Florida. Although his 1973 tax return reflects an adjusted gross income in excess of $30,500, the evidence reflected that, over the past five years, he has realized an average weekly net income of $247.25. As testified by the wife, the parties have lived modestly and 'things have been tight from time to time.' The home of the parties is modest and has never been fully painted. The husband drives a 1971 Volkswagen, and the wife drives a 1968 Ford. Title to the home place was held by the husband and wife as a tenancy by the entireties.

The marriage produced four children, one of whom is deceased. The oldest child is a male, 19 years of age, and is self-supporting. The remaining two children are daughters, Leslie, age 16, and Julie, age 8.

The marital home was purchased entirely with funds of the husband. The present mortgage payments on the home are $85 per month. The only other assets of the parties were a savings account in the amount of $10,450 held in the name of the husband and a savings account in the sum of $4,500 held in joint name of husband and wife. At the time of commencement of the suit for dissolution of the marriage, the wife withdrew $4,300 from the joint savings account, $1,000 of which she paid to her attorney for his representation in the proceedings.

An employment expert testified at the final hearing. Based upon information related to him concerning the wife's total background, including her education, work experience, physical complaints (which were unsubstantiated by medical testimony), age and current activities, he testified that the wife is employable, that there is work available for her, and that she could earn up to $175 per week. There was also evidence adduced from the wife that on occasions after the separation she attended night art classes at which time the older daughter babysat for the younger.

In reviewing the trial court's amended final judgment in light of the record, the district court concluded that there was no abuse of discretion except (i) in failure of the trial court to reserve jurisdiction so that it might reconsider an extension of alimony in the light of changed...