Claughton v. Claughton, 76-1724

• Decision Date: 19 April 1977
• Docket Number: No. 76-1724,76-1724
• Citation: 344 So.2d 944
• Parties: Edward N. CLAUGHTON, Jr., Appellant, v. Beverly A. CLAUGHTON, Appellee.
• Court: Florida District Court of Appeals

Page 944

344 So.2d 944

Edward N. CLAUGHTON, Jr., Appellant, v. Beverly A. CLAUGHTON, Appellee.

No. 76-1724.

District Court of Appeal of Florida, Third District.

April 19, 1977.

Sibley, Giblin, Levenson & Ward, Miami, for appellant.

Paige & Catlin, Miami, for appellee.

Before HENDRY, C. J., NATHAN, J., and CHARLES CARROLL (Ret.), Associate Judge.

PER CURIAM.

This interlocutory appeal is taken from an order dated August 9, 1976, in a dissolution of marriage action, wherein the chancellor ordered both appellant and appellee to answer certain questions relating to their alleged adulterous conduct.

Appellee petitioned the court for dissolution of her marriage to appellant, who filed his response thereto. The petition, besides seeking dissolution, also sought both temporary and permanent alimony, attorney's fees and court costs, a determination of the property rights of the parties and custody of the couple's minor children.

By agreement of the parties, the issues were bifurcated and on January 21, 1976, the court took testimony and determined that the marriage was irretrievably broken and entered its order dissolving same. On April 9, 1976, appellant served interrogatories upon his former wife, concerning her alleged illicit sexual activities both before and after the dissolution of their marriage. Appellee objected to this area of inquiry and refused to answer.

Subsequent to the serving of the above interrogatories, on May 21, 1976, appellee commenced the taking of her former husband's deposition. Appellee inquired as to appellant's alleged extra-marital sexual relations at points in time both during the marriage and subsequent thereto. Appellant, likewise, refused to answer the questions.

The chancellor thereupon entered an order requiring both parties to answer the questions concerning their sexual activities both during and after the marriage. From that order, appellant has taken this interlocutory appeal and has filed his assignments of error. Appellee has filed cross-assignments of error directed to that same order.

Appellant contends that the chancellor erred in ordering him to answer questions concerning his alleged adulterous activities as he is not the spouse who is seeking alimony, pursuant to Section 61.08(1), Florida Statutes (1975).

Appellee's principle contentions are that, notwithstanding the above, Section 61.08(2), Florida Statutes (1975) permits a chancellor to consider any factor necessary to do equity and justice between the parties in determining a proper award of alimony and, where custody and visitation are at issue, an inquiry into the moral fitness of the parents, pursuant to Section 61.13(3)(f), Florida Statutes (1975), must necessarily include an examination into their lifestyles, i. e. any adulterous, promiscuous conduct of either party.

Initially, we note that appellant's contention is based solely upon our holding in Escobar v. Escobar, 300 So.2d 702 (Fla. 3d DCA 1974). Appellant reads Escobar as authority for the proposition that the alleged adulterous activities of a spouse Not seeking alimony cannot be introduced in a hearing to determine the alimony, custody and visitation rights of the parties.

We are of the view that any such broad interpretation of Escobar is unfounded.

By its facts, Escobar merely stands for the proposition that a chancellor need not hear testimony concerning the adulterous activities of a spouse Not seeking alimony, when the purpose of said testimony is solely to obtain alimony for the spouse introducing the testimony or to increase the award of any alimony, as the basis of alimony is the 'wife's demonstrated need and the husband's ability to pay . . .' supra at 703. We realize that our holding in Escobar has previously been misunderstood by both our sister court ¹ and the practicing bar and we welcome the opportunity to clarify our position.

Initially, we turn to the provisions of Section 61.08, Florida Statutes (1975), which provides that:

'(1) In a proceeding for dissolution of marriage, the court may grant alimony to either party, which alimony may be rehabilitative or permanent in nature. In any award of alimony, the court may order periodic payments or payments in lump sum or both. The court may consider the adultery of a spouse and the circumstances thereof in determining whether alimony shall be awarded to such spouse and the amount of alimony, if any, to be awarded to such spouse.

'(2) In determining a proper award of alimony, the court may consider any factor necessary to do equity and justice between the parties.'

Subsection one of the above section, as construed correctly in Escobar, permits a chancellor to consider the adulterous activities of a spouse seeking alimony, 'as a Mitigating defense to the awarding of alimony and the amount thereof.' Escobar, supra, quoting from Stafford v. Stafford, 294 So.2d 25 (Fla. 3d DCA 1974). Subsection two of Section 61.08, which permits a chancellor to 'consider any factor necessary to do equity and justice between the parties' was never utilized in Escobar, as the facts there, as heretofore mentioned, revealed that the alimony seeking wife sought to utilize testimony of the alleged adultery of her husband solely to obtain an award of alimony.

The alleged facts, Sub judice, seemingly reveal a course of adulterous conduct on the part of appellant throughout most of the parties' more than twenty-year marriage. Appellee, on the other hand, has allegedly had only a...