Banks v. Banks
| Decision Date | 04 December 1900 |
| Citation | 29 So. 318,42 Fla. 362 |
| Parties | BANKS v. BANKS. |
| Court | Florida Supreme Court |
Appeal from circuit court, Duval county; Rhydon M. Call, Judge.
Bill by Emma Banks against E. L. J. Banks. From an order granting alimony, defendant appeals. Reversed.
Syllabus by the Court
The only foundation for an order for alimony, suit money, and counsel fees pendente lite is the fact of marriage between the parties; and where, at a hearing for such order upon bill filed by the alleged wife, there is no proof of the marriage or living together as husband and wife, except the allegations of an unsworn bill of complaint, while the defendant by affidavit specifically denies under oath that he was ever married to complainant, and that he ever lived with her as his wife, the court is not justified in making any order for alimony, suit money, and counsel fees pendente lite, or for the appointment of a master to ascertain and report sums of money to be allowed for those purposes, with power to take testimony in the premises.
COUNSEL Walker & L'Engle, for appellant.
Thos A. Ledwith, for appellee.
On October 15, 1895, appellee filed her bill of complaint against appellant in the circuit court of Duval county alleging that both parties were residents of Jacksonville Duval county, Fla.; that they were married on November 9 1885; that they had lived together as husband and wife from said date until a day unnamed in the year 1892; that upon said day, in the year 1892, appellant deserted appellee; that he had therefrom to the date of filing the bill willfully obstinately, and continuously deserted her, she being faultless; that appellant was well off, and appellee was very poor. The bill further set forth, by particular description, certain parcels of real estate in Jacksonville alleged to belong to appellant; alleged that certain parts of the real estate were improved; that appellant received certain monthly rentals therefrom; that he was capable of earning, and did earn, a certain sum per month as wages; that he was mentally and physically strong, while appellee was a weak woman, and not qualified to earn more than a living; and that appellant had not during the time he had deserted her contributed to her support. The bill prayed for process; for answer under oath; for the appointment of an examiner to ascertain appellant's faculties; that alimony pendente lite, suit money, and counsel fees be allowed her; that in due course permanent alimony be granted to her; and for general relief.
On October 25, 1895, the cause came on for hearing upon motion of appellee for an order for temporary alimony, counsel fees, and suit money pending the case, and appellant filed his affidavit, in which he denied that he was married to appellee on November 9, 1885, and alleged that he never was married to her; that he never did live with her as alleged in the bill; and that he had not deserted her. Appellant also denied by said affidavit that he was well off, and averred that he was poor; admitted that he owned the property described, but alleged that it was heavily mortgaged, and then in danger of foreclosure; that he rarely ever collected more than half the amount of rent alleged; admitted that he earned on an average about $50 per month, but alleged that in addition to his own necessities he was compelled to provide for three children dependent on him; alleged that $50 per month was barely sufficient, under ordinary circumstances, to provide the necessities of life for all of said persons; denied that he was physically strong; alleged that in March, 1895, while at work on the...
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Sims v. Sims
... ... counsel fees pendente lite is the fact of marriage between ... the parties. Citing, Banks v. Banks, 42 Florida, ... 362, 29 So. 318; Rundle v. Pegram, 49 Miss. 751 ... "Nor ... can sexual intercourse, which the parties know ... ...
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Vinson v. Vinson
...was written by Mr. Justice Whitfield in that case which was concurred in by all the members of the Court. In the opinion, the case of Banks v. Banks, supra, was and the holding therein approved. In the Banks case, the bill of complaint alleging the marriage was not sworn to and the marriage......
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Chaves v. Chaves
...the power to require the husband to provide suit money for the wife to enable her to cope with him in the litigation.' In the case of Banks v. Banks, supra, the bill of complaint was sworn to which alleged the marriage, and the marriage was specifically denied under oath by the defendant in......
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Arendall v. Arendall
...complainant, and this would seem to be the prevailing practice in this state. See Wood v. Wood, 56 Fla. 882, 47 So. 560, and Banks v. Banks, 42 Fla. 362, 29 So. 318. course, the circuit judge also has the power to have the testimony taken before himself, or he may proceed to hear and dispos......