Deigaard v. Deigaard, s. 59-46
| Citation | 114 So.2d 516 |
| Decision Date | 24 September 1959 |
| Docket Number | Nos. 59-46,59-88,s. 59-46 |
| Parties | Chester S. DEIGAARD, Appellant, v. Ethel E. DEIGAARD, Appellee. |
| Court | Court of Appeal of Florida (US) |
George J. Baya, Miami, for appellant.
Sanford M. Swerdlin, Miami, for appellee.
The chancellor entered a final decree of divorce in favor of the appellee-wife which, inter alia, contained a provision for the payment by the husband to the wife of the sum of $75 per week as support and maintenance, together with a lump sum of $5,000 as post demise alimony in the event of the husband's death prior to the remarriage or death of the appellee-wife, $25 per week support for a minor daughter, the establishment of a trust fund, in the amount of $8,400, for the use and benefit of a minor son in defraying expenses of his college education, and allowance to the wife of the sum of $15 per week for his support and maintenance if he should reside with her during the summer months. This trust fund created by the decree was conditioned upon the fact that if the son should discontinue his college education, then the court reserved the right, upon the husband's request, to dispose of any balance of the monies remaining in said trust fund. The wife was required to keep a strict accounting of the disbursements from the trust fund. The chancellor also awarded the wife's attorney a $1,500 fee and costs.
The husband has posed four questions which he considers sufficient to warrant a reversal of the decree. In summary, these contentions are: (1) that the amounts awarded as alimony were excessive; (2) that an award of post demise alimony was without legal basis; (3) that the chancellor was without authority to require the father to provide his son with a college education; and (4) that the attorney's fee was excessive.
We conclude that the appellant's first contention, i. e., the awards of alimony were excessive, is without substantial merit. The record discloses that the appellant's earnings from a partnership operating a wood-treating business, and the standard of living which the parties had enjoyed within at least the last three years preceding this action, were sufficient to sustain the awards. Under the circumstances of the parties, as developed by the testimony and exhibits, the chancellor did not, in our opinion, abuse his discretion in making the awards which he did. See Lewis v. Lewis, Fla.App.1958, 104 So.2d 597; Gilbert v. Gilbert, Fla.App.1958, 105 So.2d 379.
The second contention of the appellant we think has merit. The chancellor by his decree awarded the wife the sum of $75 per week alimony which, as we have heretofore held, was justified in view of the evidence adduced before him. However, he further provided:
'* * * [I]n the event Defendant shall die prior to Plaintiff's re-marriage or death, then, and in that event, Plaintiff shall have a claim against the estate of the Defendant in the amount of Five Thousand Dollars ($5,000.00) in lieu of post-demise alimony.'
The only provision for the award of permanent alimony upon a decree of divorce is found in § 65.08, Fla.Stat., F.S.A., wherein, inter alia, it provides:
'In any award of permanent alimony the court shall have jurisdiction to order periodic payments or payment in a lump sum.'
It has been held that a chancellor cannot award both periodic alimony payments and lump sum alimony. See Cocalis v. Cocalis, Fla.App.1958, 103 So.2d 230, 232. In addition, a divorced husband's liability for alimony generally terminates with his death. There was no expressed contract or agreement between the parties that alimony should continue beyond the life of the husband, and in the absence of statutory authority, we conclude that the decree in this respect is without legal basis. See Allen v. Allen, 111 Fla. 733, 150 So. 237; Underwood v. Underwood, Fla.1953, 64 So.2d 281; Johnson v. Every, Fla.1957, 93 So.2d 390. Cf. Simpson v. Simpson, Fla.App.1959, 108 So.2d 632.
The appellant's third contention revolves around the authority of the chancellor to require appellant to provide his 18-year-old son a college education. The provision of the final decree under attack required the wife to establish a trust fund for the benefit and use of the minor son in an amount equal to monies which...
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Aldrich v. Aldrich
...agreement.' A similar view of that case was expressed by the District Court of Appeal of Florida, Third District, in Deigaard v. Deigaard, Fla.App.1959, 114 So.2d 516, a divorce suit in which a decree of the trial chancellor provided that if the defendant husband should die prior to the rem......
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