Cocalis v. Cocalis, 57-407
| Decision Date | 05 June 1958 |
| Docket Number | No. 57-407,57-407 |
| Parties | George Demetrius COCALIS, Appellant, v. Marjorie Jane COCALIS, Appellee. |
| Court | Florida District Court of Appeals |
John D. Marsh and Anthony F. Barone, Miami, for appellant.
Pallot, Cassel & Marks, Miami, for appellee.
Appellant seeks reversal of a decree for alimony and attorneys' fees rendered in a divorce suit in which he was the defendant.
The chancellor granted the plaintiff wife a divorce, by a decree dated April 9, 1957, which reserved jurisdiction for later determination of alimony, child support and attorneys' fees. Those matters were fixed by a further decree dated May 17, 1957 which directed the payment of lump sum alimony in the amount of $2,500, ordered payment of $100 a week for support of the two children, required the husband to pay off a mortgage on a home which had been conveyed to the wife and allowed a fee of $750 to the wife's attorneys.
A timely petition for rehearing was filed, with the object of increasing the alimony on the basis of additional facts relating to the financial status of the defendant which it was claimed had been overlooked and not presented to the court. The court granted the petition for rehearing by an order in which it was provided that the parties should have the right to present additional testimony pertinent to the issues involved.
After a hearing in September of 1957 at which more testimony was submitted, the court made an amended final decree on October 30, 1957, which vacated the earlier decree of May 17 relating to alimony and awarded $15,000 lump sum alimony, continued the provision for support of the children, ordered payment to the wife of $65 per week for three years (in place of the order in the previous decree for payment of the mortgage on the wife's residence), and allowed an additional attorneys' fee of $1,000, payable to the attorneys representing the ex-wife in the proceedings on the rehearing, who were different from the attorneys who had acted for her in obtaining the original decree.
The assignments of error challenged the granting of the petition for rehearing, and the provisions of the amended decree of October 30, 1957, granting alimony and allowing attorneys' fees, and vacating the earlier alimony decree.
The granting of the petition for rehearing was within the sound judicial discretion of the court under rule 3.16, 1954 Florida Rules of Civil Procedure, 31 F.S.A., and no abuse of discretion was shown.
The evidence furnished adequate basis for the provisions for support of the wife, as fixed in the ultimate decree. The appellant was shown to be possessed of an estate valued in excess of $200,000, and to be the beneficiary of a trust from which he received annually an income of approximately $15,000 after taxes.
On behalf of the appellant it was argued that the court should not have granted a lump sum alimony, but should have made provision for the payment of alimony in regular installments. The court was entitled to choose to allow lump sum alimony. Section 65.08, Fla.Stat., F.S.A.; Yandell v. Yandell, Fla.1949, 39 So.2d 554; Rubinow v. Rubinow, Fla.1949, 40 So.2d 561; Lindley v. Lindley, Fla.1955, 84 So.2d 17.
In Yandell v. Yandell, supra, 39 So.2d at pages 556, 557, it was said with reference to lump sum alimony:
'* * * There may be other situations which might justify or possibly require a lump sum award, but it should never be made unless the husband is in a financial position to make payment of such gross award without endangering or actually impairing his economic status. A...
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