Farina v. Farina, 57-108

• Decision Date: 01 October 1957
• Docket Number: No. 57-108,57-108
• Citation: 97 So.2d 485
• Parties: Madeline FARINA, Appellant, v. Louis FARINA, Appellee.
• Court: Florida District Court of Appeals

Page 485

97 So.2d 485

Madeline FARINA, Appellant, v. Louis FARINA, Appellee.

No. 57-108.

District Court of Appeal of Florida, Third District.

Oct. 1, 1957.

Rehearing Denied Nov. 6, 1957.

Arthur A. Kimmel and Amos Benjamin, Miami, for appellant.

Joseph Pardo, Miami, for appellee.

CARROLL, CHAS., Chief Judge.

The appellant sued her husband for divorce, and filed this appeal from an adverse final decree dated October 12, 1956, which denied her a divorce, granted a divorce to appellee on his counterclaim and awarded appellant lump sum alimony of $1,500, plus counsel fees and costs.

The notice of appeal to the Supreme Court of Florida was filed in the circuit court December 5, 1956, and the appeal was lodged in the Supreme Court on January 21, 1957. The record-on-appeal and briefs were filed there in March of 1957.

This court heard argument in the cause following its transfer from the Supreme Court to this court for consideration and determination, by order dated August 5, 1957, pursuant to authority vested in the Supreme Court of Florida by Section 26(6), Article V of the Constitution as amended at the General Election in November 1956, effective July 1, 1957, F.S.A.

The appellant in her brief, stated the following four questions or points:

'Point I. Whether or not the evidence adduced by the plaintiff at the final hearing supported her allegations of extreme cruelty against the Defendant. (Plaintiff's Assignments of Error Nos. 1, 2, 6, 9, 11, 12 and 14).

'Point II. Whether or not the Lower Court erred in finding for the Defendant in his Counter-Claim alleging extreme cruelty on the part of the Plaintiff where the evidence adduced by the Defendant was for the most part hearsay, and where the evidence failed to show that the alleged actions of the Plaintiff produced an ill effect on the Defendant's health or made cohabitation impossible. (Plaintiff's Assignments of Error Nos. 3, 4, 5, 7, 8, 10 and 15).

'Point III. Whether or not the Lower Court, when finding that the Plaintiff was entitled to rehabilitation, properly considered the financial worth of the Defendant, the contributions of the Plaintiff towards the marriage, and the needs of the Plaintiff, in allowing the Plaintiff the meager sum of One Thousand Five Hundred Dollars ($1,500) as a lump sum alimony when, by the Defendant's own testimony, he is worth as much as One Hundred Fifty Thousand Dollars ($150,000). Plaintiff's Assignments of Error Nos. 1, 2, 6, 9, 11, 12 and 14).

'Point IV. Where the Chancellor assumes complete charge of the Plaintiff's case and interrogates witnesses to exclusion of counsel and by his questions permits introduction of incompetent testimony and privileged communications between doctor and patient, does such conduct constitute reversible error. (Plaintiff's Assignments of Error Nos. 13 and 16).'

In its consideration of these questions the court did not have the benefit of an appendix to appellant's brief, as required by Florida Supreme Court Rule 31 and Rule 36.6(e), 31 F.S.A. The record-on-appeal, consisting of the original record in the circuit court, including the transcribed testimony, is 239 pages in length, of which the testimony consumes 204 pages

If an appellant fails to file and include an...