Brown v. Brown

• Decision Date: 10 September 1974
• Docket Number: No. T--423,T--423
• Citation: 300 So.2d 719
• Parties: Evelyn BROWN, Appellant, v. Raymond Pierre BROWN, Jr., Appellee.
• Court: Florida District Court of Appeals

Page 719

300 So.2d 719

Evelyn BROWN, Appellant, v. Raymond Pierre BROWN, Jr., Appellee.

No. T--423.

District Court of Appeal of Florida, First District.

Sept. 10, 1974.

Rehearing Denied Oct. 15, 1974.

W. A. Swann, Jr., Pensacola, for appellant.

David H. Levin, of Levin, Warfield, Graff, Mabie & Rosenbloum, Pensacola, for appellee.

RAWLS, Chief Judge.

The primary question posed by appellant-wife in this appeal from a final judgment dissolving the marriage of the parties is that of money and custody of the children.

The final judgment dissolving the marriage of the parties was rendered by the trial court on the 14th day of June, 1973; the pertinent portions thereof being as follows:

'1) That the Motion to Reopen is denied, the Petitioner having had ample opportunity prior to resting her case to obtain the information which she now desires to present.

'2) The bonds of matrimony heretofore existing between RAYMOND PIERRE BROWN and EVELYN BROWN are hereby dissolved.

'3) The Wife shall have custody of the children of the parties, namely: GREGORY BROWN, STUART BROWN, PRESTON BROWN and ROGER BROWN, and the Husband shall have liberal rights of visitation with the Court allowing Gregory, Stuart and Preston Brown to live with their father if this is their desire, without further order of this Court. The Husband shall pay child support in the sum of Five Hundred ($500.00) Dollars per months to be divided equally between the four (4) minor children. Upon any child reaching his twenty-first birthday, becoming self-supporting, or marrying, child support shall be reduced on a pro rata basis of $125.00 per month per child. In addition, the Husband is to provide medical expenses and school supplies for the four children, and, if financially able, he is to provide private schooling and college education so long as the child receiving support diligently pursues his efforts to obtain a four-year college degree.

'4) The Wife shall have the continued use of the 1970 Dodge Dart automobile. The Wife shall also have the exclusive use and occupancy of the family home located at 2000 Morningside Drive, Pensacola, Florida, so long as it is used as a home for her and the children. She shall be required to pay the mortgage note in the amount of $154.00 each month, and the wife shall have as her sole property the furnishings in said home, however, the Husband shall have the right to remove any personal belongings from the family home. The home shall remain in the joint names of the parties as tenants-in-common.

'5) The parties shall be tenants-in-common in the Charter Bank Shares, the Jad's Lease and the Jack Hall note.

'6) Inasmuch as the Wife is a Registered Nurse and a real estate saleslady, the Court feels that she is not entitled to permanent alimony, however, the Court awards her rahabilitative alimony in the amount of Five Hundred ($500.00) Dollars per a period of six months, and thereafter for a period of one (1) year, the amount of Two Hundred Fifty Dollars ($250.00) per month.'

In the year 1952, these parties entered into the holy estate of matrimony. When the coverture was consummated neither party possessed any estate of material value. At the outset of the marriage enterprise, the wife, a registered nurse, continued working and the husband, a graduate of the University of Florida (with a major in accounting), was employed. Not too long after this marital venture was launched, the husband received a promotion resulting in the parties moving to Lancaster, Pennsylvania, where the wife continued her nursing career until six weeks prior to their first child being born. At this point in time, the wife exchanged her career as a nurse for that of a mother and housewife. ¹ During the next eighteen or so years, the husband successfully pursued his career as an accountant, reaching the top echelon of his profession upon earning the coveted title of 'Certified Public Accountant'. While the husband accumlated material wealth, the wife dutifully kept house and assumed the primary responsibility for raising and caring for the four male children born of this marriage. ² When the marital partnership was dissolved after 21 years of coverture, the husband's financial statement reflected a net worth of $232,843.00, together with an annual earning capacity in the range of $36,000.00 to $40,000.00. The wife's material assets at the time of, and pursuant to, the judgment of dissolution when translated into money amounted to the following: 1) rehabilitative alimony--$6,000.00; one-half equity in residence--$3,000.00; one-half equity in beach cottage--$12,500.00; one-half interest in Hall note--$2,000.00; one-half interest in Jad note--$4,200.00; ³ aggregating the sum of $27,700.00.

We first consider the question of money and material goods. There are indications from the record of the proceedings below that members of the Bench and Bar consider that this Court has virtually eliminated alimony. ⁴ In addition, we have before us a factual situation which is still prevalent even in this modern day of women's liberation, i.e., a wife who has foregone pursuing a professional career and the accumulation of a personal estate in order to be a full time mother and homemaker while the husband remains in the market place providing for the material needs of his family and accumulating a sizable personal estate. For these reasons, the time has come for us to pause and pursue an in-depth consideration of the law of alimony in Florida.

In order to fully explore the subject of alimony, the husband's testimony as to his mental attitude towards the future of the marital venture is material. We observe that the materiality is not by reason of 'fault' or 'no fault', but is being considered in analyzing the financial status of each party of this marital partnership at the time of its inception and its dissolution. In answer to the question: When was it that you decided to leave? The husband answered, '1964. I made a vow to myself at that time and that vow was that if I ever made enough money that I could support her and those children and have enough groceries for myself, I was going to leave.' This statement indicates the husband's motivation to accumulate wealth in his own name in order to prepare for the divorce he had long desired. ⁵

For at least forty years prior to the recent enactments repealing 'divorce' and instituting 'dissolution of marriage' (commonly referred to as 'no fault'), the courts awarded a divorced wife periodic alimony almost as a matter of constitutional right. In Phelan v. Phelan, 12 Fla. 449 (1868), the Supreme Court defined alimony as: 'Permanent alimony is not a sum of money or a specific proportion of the husband's estate given absolutely to the wife. It is a continuous allotment of sums payable at regular periods for her support from year to year.' The Court in further discussing alimony stated:

'The actual income of the husband appears from the cases to be as a general rule the precise fact to be regarded. 2 Hag.Con., 199, 201; 3 Hag.Ec., 472; 5 Eng.Ec., 186; 2 Phillim., 40.

'But this is not a fixed and absolute rule, and there are circumstances which vary it. Before an allotment of permanent alimony is made, the ability of the husband should be made to appear, as well as the other considerations which are to be estimated in connection with his faculties, in determining the amount.'

This definition of 'permanent alimony' was reaffirmed by the Supreme Court in Welsh v. Welsh, 160 Fla. 380, 35 So.2d 6 (1948), where it is interesting to note that although she owned substantial property in her own name and was working, the Court awarded her $150.00 per month periodic alimony. The Court observed in Welsh that Chapter 23,894, Acts of 1947, had been amended to permit the award of lump sum alimony but refused to apply same retroactively. So, at this point in our judicial construction of alimony, a wife was entitled to periodic alimony based upon her needs and her husband's ability to pay.

The next development in the law of alimony was the appearance of the doctrine of 'special equity'. As early as 1919 in Carlton v. Carlton, 78 Fla. 252, 83 So. 87 (1919), the Supreme Court in a per curiam opinion after noticing that the wife, mother of six children, had contributed generously in funds and by Her personal exertion and industry through a long period of time to the acquisition and development of his home and other property and the establishment of his fortune, held that the wife possessed a special equity in the property which she aided in acquiring and possessing.

In Heath v. Heath, 103 Fla. 1071, 138 So. 796 (1932), the Supreme Court utilized the doctrine of special equity to relieve a wife from the harshness of the statutory prohibition of awarding alimony to an adulterous wife. Bottoming the decision in Heath, the Court stated:

'The provisions of section 4987, Comp.Gen.Laws, section 3195, Rev.Gen.St., to the effect that no alimony shall be granted to an adulterous wife, do not preclude the ascertainment and allowance by the court of an amount to the wife for her special equity in property and business of the husband toward which she is shown to have contributed materially in funds and industry through a period of years while the marriage remained undissolved.'

The Supreme Court in Welsh v. Welsh, supra, examined in detail the factual situation presented and concluded that the evidence showing a special equity in behalf of the wife in the husband's property for services rendered falls far short of the requirements set out in the court's adjudications. However, the Welsh court did find that the wife had substantial assets of her own, was possessed of earning ability and also entitled to permanent alimony payable in the monthly sum of $150.00. As we read Welsh, the court granted to the wife an equitable settlement including payment for the services rendered by her to his drug business with emphasis on the permanent monthly alimony...