Arendall v. Arendall

• Citation: 61 Fla. 496,54 So. 957
• Parties: ARENDALL v. ARENDALL.
• Decision Date: 11 April 1911
• Court: Florida Supreme Court

54 So. 957

61 Fla. 496

ARENDALL v. ARENDALL.

Florida Supreme Court, Division A.

April 11, 1911

Appeal from Circuit Court, Marion County; W. S. Bullock, Judge.

Bill by Eunice Arendall against Charles G. Arendall, Jr. From an order granting alimony to plaintiff, defendant appeals. Reversed.

Syllabus by the Court

SYLLABUS

Where a bill in chancery is filed for alimony, upon the application of the complainant for temporary alimony, counsel fees, and suit money, the safer and more commendable practice is either to refer the matter to a master to take testimony as to the necessities of the complainant and the faculties of the defendant, or to take such testimony before the circuit judge, rather than to act upon affidavits produced and filed by the respective parties, since affidavits are necessarily ex parte statements, limited in their compass.

The only foundation for an order for alimony, suit money, and counsel fees pendente lite is the fact of marriage between the parties, and the marriage relation should be made to appear at least prima facie by proof or admission before any order is made for the taking of testimony as to alimony, suit money, and counsel fees.

In a suit in chancery for alimony, when an answer is filed by the defendant, in which he denies practically all of the allegations of the bill, especially the allegations as to his faculties, it is error to grant an order for temporary alimony, suit money, and counsel fees, when no proof whatever is adduced as to the faculties of the defendant, no matter how clearly the necessities of the complainant are made to appear.

COUNSEL Tucker & Tucker, for appellant.

R. B Bullock, for appellee.

OPINION

SHACKLEFORD J.

The appellee filed her bill in chancery against the appellant wherein she sought a divorce on the ground of desertion temporary and permanent alimony, suit money, solicitor's fees, and general relief. The only allegation in the bill in regard to the faculties of the defendant is that he 'is by trade a locomotive engineer; that he continuously and readily has employment at his trade when he desires it; that he earns from his said trade from $90 to $100 per month.' The defendant filed his answer, wherein he admitted that a marriage ceremony was performed between him and the complainant, but for reasons which he stated specifically and at length, but which we deem it unnecessary to set forth, denied that such marriage was valid or binding. He also so admitted that 'as soon as the ceremony was performed, having paid to the father of the complainant all the money which he then had and in conformity with the agreement as entered into, he left the complainant and has not seen her since.' The answer also contains the following averment:

'The defendant denies that his trade is that of a locomotive engineer, and further says that he does operate stationary engines, whenever he can get a job, and when his health will permit of him doing so, but that he is an invalid; that his eyesight is very deficient, and that he is ruptured, and can only do light work, and that he is unable to work continuously even as engineer of stationary engines; that he has sought and obtained work at various places, but on account of his affictions he has been unable to continue at his job very long at any place. He denies that he earns from his trade from $90 to $100 per month, and says that he has only been able since the year 1908 to earn a scant living for himself; and further says that he is without any visible means whatever, that he makes his home with his parents when not temporarily employed elsewhere, and that, when he paid the amount of money above stated, he surrendered to the use of the complainant and her child all the wealth which he then could command, and since that time has made but a scant living; that the money paid was borrowed from his father, who had mortgaged his home to raise it, and afterwards sold his home to pay the debt; and that he still owes his father this money.'

The bill of complaint was accompanied by the affidavit of the complainant, and the answer was sworn to by the defendant. The suit came on to be heard upon the motion of the complainant 'for suit money, attorney's fees, and alimony,' upon which the following interlocutory order was rendered:

'This cause having come on to be heard before the judge of said court at chambers in the city of Ocala, upon motion of complainant's solicitor for an order requiring said defendant to pay solicitor's fee, suit money, and alimony pendente lite, and thereupon said complainant submitted her bill of complaint, with proof of marriage to the said defendant, and other affidavits, and the said defendant his answer, and also affidavits in support thereof; and the court, having heard arguments of counsel for the respective parties, and being fully advised in the premises, and having considered same, is of the opinion that complainant has shown a liability of the defendant, and that the answer and affidavits of the said defendant submitted to the court are insufficient to avoid his liability.

'It is therefore ordered, adjudged, and decreed by the court that the said defendant, Charles G. Arendall, Jr., do pay to the said complainant, or her solicitor of record, within 20 days from this date, the following sums of money for the following purposes: (1) Fifty dollars for the fees of her solicitor for services rendered her in said cause to date; (2) $10 for court costs; and (3) $20 for her support till further order of the court.

'It is further ordered that the complainant's solicitor transmit a copy of this order to Messrs. Tucker & Tucker, solicitors for defendant, at Lakeland, Florida, by mail.

'Done at chambers in the city of Ocala, Florida, this October 14, 1910.'

From this order the defendant has entered his appeal.

The motion was heard by the circuit judge upon the pleadings and ex parte affidavits filed by the complainant and the defendant. The circuit judge could have made an order of reference to a master for the purpose of taking testimony as to the faculties of the defendant and the amount of alimony suit money, and counsel fees to be awarded the...