English v. English, 59-465
Decision Date | 04 February 1960 |
Docket Number | No. 59-465,59-465 |
Citation | 117 So.2d 559 |
Parties | Grace ENGLISH, Appellant, v. J. W. ENGLISH, Appellee. |
Court | Florida District Court of Appeals |
Joseph Pardo, Miami, for appellant.
Sylvester P. Adair, Homestead, for appellee.
The appellant Grace English is the wife of the appellee J. W. English. Her suit against him for separate maintenance was settled in 1957, with a consent final decree which included a provision for weekly support payments, as follows:
'* * * [A]nd further pay to the plaintiff the sum of one hundred dollars ($100.00) per week on the first day of each and every week, with which the said plaintiff-wife shall make payment for food for the household, utilities (including telephone, excepting long distance calls by husband), maid service, laundry, gasoline and maintenance of the wife's automobile, said weekly payment to be made until further order of this court.'
In April of 1959, on a motion of the wife alleging certain nonpayment of the $100 weekly installments of alimony, a rule to show cause was issued. Thereafter and before the return date, the husband filed a petition for modification (under § 65.15, Fla.Stat., F.S.A.), alleging a change in circumstances and financial ability. On the hearing it appeared, undisputed, that the husband was in arrears in the amount of $1,300. The chancellor refused to make the rule absolute, and entertained and granted the husband's motion to modify the decree. In his order the chancellor found that the financial circumstances of the defendant had 'materially worsened over the past two years' and that he was unable to continue the payments of $100 a week for maintenance of the home, the requirements for which he found were less than that amount. That order contained the further finding that 'the plaintiff has an independent income of her own between $10,000.00 to $20,000.00 a year, and that the $100.00 payments heretofore ordered by the court are entirely unnecessary for her support and maintenance.' Based on such findings the chancellor modified the decree by relieving the defendant of the provision for payment of $100 per week, and by requiring the defendant to pay only amounts actually needed for support of the household.
The wife filed this interlocutory appeal from that order, and her brief stated the following two questions:
'1. Where the defendant admits that he is in arrears in the sum of $1,300.00 in the payment of separate maintenance entered pursuant to a final decree, did the lower court err in refusing to grant the plaintiff relief for said arrearages?
On the first question, the appellant argues that the court committed error by not adjudging the husband in contempt for his failure to make required payments of alimony which resulted in the $1,300 arrearage.
One method, in fact the most usual remedy for enforcement of a decree for alimony, in event of default, is by a contempt proceeding. But proof of unpaid arrears of alimony will not entitle an applicant, as a matter of right, to an order of commitment of a person for contempt, as such an application is addressed to the discretion of the court. A respondent to a rule to show cause will be adjudged in contempt when the court determines that the arrearage in alimony is the result of a willful failure to comply with the order for its payment. Orr, for Use and Benefit of Walton v. Orr, 141 Fla. 112, 192 So. 466, 467. A willful default implies that there was capacity and financial ability to pay. Yandell v. Yandell, 160 Fla. 164, 33 So.2d 869; 6 Fla.Jur., Contempt § 53. Here the chancellor in considering the contempt application, and also on the question of whether the...
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Succession of King
...have accrued, the right to those payments vests absolutely in the wife and cannot be modified by the courts. In English v. English, 117 So.2d 559, 561, 562 (Fla.App.1960), the court '* * * Those amounts of alimony which were in default and accrued at the time of the hearing on the rule to s......
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...are closed to him so long as he is in such wilful default. Blanton v. Blanton, 1944, 154 Fla. 750, 18 So.2d 902; English v. English, Fla.App.1960, 117 So.2d 559; Watson v. McDowell, Fla.App.1959, 110 So.2d There is no legal reason why the rule should not be fully operative in a converse sit......
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Hoffman v. Hoffman, 61-327
...1 A.D.2d 1025, 151 N.Y.S.2d 520.4 See McArthur v. McArthur, Fla.1958, 106 So.2d 73, and cases cited therein. See also, English v. English, Fla.App.1960, 117 So.2d 559; 10 Fla.Jur., Divorce, Separation & Annulment, §§ 202, 203, ...