Buckalew v. Buckalew, 1252
| Decision Date | 06 November 1959 |
| Docket Number | No. 1252,1252 |
| Citation | 115 So.2d 564 |
| Parties | D. R. BUCKALEW, Appellant, v. Berniece E. BUCKALEW, Appellee. |
| Court | Florida District Court of Appeals |
Bentley, Shafer, Miller & Sinder, Lakeland, for appellant.
Oxford & Oxford, Lakeland, for appellee.
Appellee, Berniece E. Buckalew, sued her husband, the appellant, for divorce. In her complaint she asked the court to decree her to be the equitable owner of the home of the parties and to grant such other and further relief as the court might deem proper. She alleged that the home had been constructed and the mortgage indebtedness thereon reduced principally through her financial contributions. Neither the wife in her complaint nor the defendant husband in his answer set forth how the title to the home was held, it merely being stated that the parties owned a home at a specified address. Plaintiff did not pray for alimony.
In the final decree, the court decreed, among other things, that the plaintiff was the owner of a three-fourths interest in the home of the parties.
After entry of the final decree the husband filed a petition for rehearing in hich he sought to show by a written memorandum that he had borrowed $6,500 from his father, that said sum was used in building the home, and that this sum together with the outstanding mortgage indebtedness accounted for the total cost of the home. This petition for rehearing was denied.
The husband then filed an extraordinary petition for rehearing in which he set forth that the parties and the court had been in error as to the status of title to the home in that it had been considered by all concerned that the parties held title in an estate by the entireties, whereas in fact the title to the property was held in the name of the husband alone. The husband also sought to show his contribution to the family financial pot over the years of the marriage. This extraordinary petition was also denied.
The husband-appellant contends that it was a flagrant abuse of discretion on the part of the chancellor to refuse to grant a petition for rehearing under these circumstances. He argues that it is obvious that the final decree was based on a mistake as to ownership of the property and that the chancellor should have granted the petition and corrected the decree thereon upon the new evidence being presented to it. He cites McArthur v. McArthur, Fla.1957, 95 So.2d 521 in support of his contention.
It is to be noted here that the testimony taken before the chancellor and the other evidence submitted was not transcribed and included in the record, therefore we have before us none of the evidence upon which the final decree was rendered.
As has been stated by the Supreme Court of Florida many times, an appellate court cannot review matters of fact or evidence where all, or so much of, the evidence submitted before the trial court as is essential to clearly show error is not in the record before it. The appellate court must of necessity assume, when no transcript of the testimony taken in the trial court is contained in the record, that the essential allegations of the pleading favored by the decree were proved by competent evidence. McClosky v. Martin, Fla.1952, 56 So. 2d 916. Also see cases cited in 2 Fla.Jur....
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