Behar v. Southeast Banks Trust Co., N. A.

• Decision Date: 07 August 1979
• Docket Number: 79-394 and 79-395,Nos. 78-2197,s. 78-2197
• Citation: 374 So.2d 572
• Parties: Sylvia BEHAR, Appellant, v. SOUTHEAST BANKS TRUST COMPANY, N. A., Personal Representative of Alberto Behar, Appellee.
• Court: Florida District Court of Appeals

Page 572

374 So.2d 572

Sylvia BEHAR, Appellant, v. SOUTHEAST BANKS TRUST COMPANY, N. A., Personal Representative of Alberto Behar, Appellee.

Nos. 78-2197, 79-394 and 79-395.

District Court of Appeal of Florida, Third District.

Aug. 7, 1979.

Rehearing Denied Sept. 14, 1979.

Schuster & Stratton and Douglas D. Stratton, Miami Beach, for appellant in no. 78-2197.

Sylvia Behar, in pro per. in nos. 79-394 & 79-395.

David T. Berg and Sherwin Gross, Miami, Franklin, Ullman, Kimler & Entin, P. A., and Michael W. Ullman, North Miami Beach, for appellee.

Before BARKDULL and HUBBART, JJ., and CHAPPELL, BILL G., Associate Judge.

BARKDULL, Judge.

Sylvia Behar, petitioner/counter-defendant, appeals a final judgment of dissolution in Case No. 78-2197, which reserved jurisdiction for a future determination of property rights.

The final judgment of dissolution was entered on September 29, 1978. The wife appealed this order before any hearing on property rights could be conducted. In January of 1979, the trial court entered an interim order directing that the husband should continue in possession of the marital home, allowing the wife to take her personal property from the marital home, and ordering the husband to transfer some $300,000.00 into custodia legis. This order is the subject of separate appeals Numbers 79-394, 79-395. ¹ Five days after the January order was entered, the husband died. The guardian ad litem of the child of the parties and the wife both moved for a stay of the trial court proceedings, on the grounds that until the appeal of the final judgment of dissolution was resolved no one knew if the wife was proceeding as a widow or a divorced person. The stay was granted. Southeast was substituted as the personal representative of the deceased in this court.

Sylvia Behar sued for divorce in January of 1978. The husband counterclaimed for same, claiming that the eighteen-year marriage was irretrievably broken; the wife answered, admitting that the marriage was irredeemable. Later the parties stipulated that the marriage could not be salvaged.

The husband was 81 years of age at the time of the divorce. The parties had a minor child. The husband was apparently terrified of his wife and, while the divorce proceeding was pending, there were orders directed to the wife to keep her from harassing the man. At the final hearing, wife's then counsel opened the proceedings by making an oral motion to withdraw; ² the trial court denied this motion until the hearing was over. ³ At the hearing, both the husband and the wife testified that the marriage was irretrievably broken. The court then found that the marriage was irretrievably broken; that the husband was to have the use of the marital home; that the parties were enjoined from harassing each other and from dissipating assets, and that the husband was to pay temporary alimony and child support. The court reserved jurisdiction of property matters. The final order of dissolution did not end the matter in the trial court; Mrs. Behar filed several emergency motions to obtain various types of relief.

The order sought to be reviewed by appeals numbers 79-394 and 79-395 concerned, generally, the possession of the marital abode. It awarded the exclusive possession of the home to the husband, while ordering the husband to transfer $300,000.00 in funds to a court-appointed trustee. The husband was given possession of the home since he was aged and in ill health. There was evidence adduced in the trial court that the wife had abused the husband while they were living together, and that there was much bitterness between the parties. The parties' minor child is affected by these actions and he has been represented in the trial court and on appeal by a guardian ad litem. Mrs. Behar's problems with legal representation continue and her last attorney has been permitted to withdraw in appeals numbers 79-394 and 79-395; she has filed a brief on her own behalf and made an oral presentation.

The principal contentions of the appellant are that the trial judge erred in not continuing the September hearing, when her counsel made an ore tenus motion to withdraw. Further, that the trial court erred in dissolving the marriage of the parties and continuing the disposition of the property rights until a further time. That, after the appellant appealed the order of dissolution, the trial court was without jurisdiction to render subsequent orders affecting property rights.

We affirm. First, the motion to withdraw was not granted until the conclusion of the September hearing, and counsel for the appellant participated in the hearing as much as counsel for the deceased husband. The trial court was eminently familiar with the parties, there having been numerous hearings before him. ⁴ Further, the trial court conducted most of the interrogation of both the parties and amply protected any property rights of the appellant. Normally, when counsel opens a hearing with a motion to...