Firestone v. Firestone

• Decision Date: 12 April 1972
• Docket Number: No. 41470,41470
• Citation: 263 So.2d 223
• Parties: Mary Alice FIRESTONE, Petitioner, v. Russell A. FIRESTONE, Respondent.
• Court: Florida Supreme Court

Page 223

263 So.2d 223

Mary Alice FIRESTONE, Petitioner, v. Russell A. FIRESTONE, Respondent.

No. 41470.

Supreme Court of Florida.

April 12, 1972.

Rehearing Denied June 29, 1972.

Joseph D. Farish, Jr., of Farish & Farish, West Palm Beach, and Fuller Warren, Miami, for petitioner.

John R. Farrell, and Gerald T. Wetherington, of Farrell & Wetherington, Miami, for respondent.

PER CURIAM.

This cause is before this Court on petition for writ of certiorari to review a decision of the Fourth District Court of Appeal, reported at 249 So.2d 719, which affirmed a judgment entered by the Circuit Court of Palm Beach County.

We have jurisdiction by virtue of conflict with Diem v. Diem, 1940, 141 Fla. 260, 193 So. 65, Article V, Section 4 (Florida Constitution, F.S.A.) and Rule 4.5(c), F.A.R., 32 F.S.A.

Petitioner-wife and respondent-husband were married on August 1, 1961; it was her first marriage and his third; a son was born of this union; they separated during October, 1964; the wife then filed a complaint for separate maintenance to which the husband counterclaimed for divorce on grounds of extreme cruelty and adultery; after a lengthy trial, the circuit judge entered final judgment on December 15, 1967, granting, among other things, a divorce to the husband but did not find the wife guilty of adultery. The appellate processes then commenced, resulting in the proceeding now before us.

In awarding the divorce, the final judgment stated:

'. . . it is the conclusion and the finding of the Court that neither party is domesticated . . . In the present case, it is abundantly clear from the evidence of marital discord that neither of the parties has shown the least susceptibility to domestication, and that the marriage should be dissolved.'

The wife initially attacks the award of a divorce. Certainly, 'lack of domestication' was not one of the nine (9) grounds for divorce under Section 65.04, Florida Statutes, 1963, (the Florida divorce law governing this suit), however, 'extreme cruelty' was a ground for divorce. Its definition was succinctly described in Diem, supra, at page 66, as follows:

'Extreme cruelty as ground for divorce is relative. What constitutes it may be determined by the degree of one's culture, his emotions, nervous reaction or moral sense. It may also be tested by acts or social conduct to which the spouse affected is allergic. The rapid change in social conventions may generate conditions that bring on extreme cruelty. One spouse may indulge a habit to which the other is allergic that would be extremely painful, depending on the nature of the affected spouse. A wife that chews tobacco may strain the connubial relation and the husband that dips snuff may do likewise. Any habitual indulgence on the part of one spouse that causes mental torture, undermines the health, or tends to dethrone the reason of the other, is sufficient to constitute extreme cruelty as ground for divorce.' (emphasis supplied)

To grant a divorce on the ground of 'lack of domestication' would in effect create a tenth ground under the cited statute and would be an improper invasion of the legislative province. Nevertheless, the divorce can be and is hereby sustained on the ground of 'extreme cruelty.' In reaching this conclusion we have considered the elementary theory that a trial court's judgment, even if insufficient in its findings, should be affirmed if the record as a whole discloses any reasonable basis, reason or ground on which the judgment can be supported. In other words, the findings of the lower court are not necessarily binding and controlling on appeal, and if these findings are grounded on an erroneous theory, the judgment may yet be affirmed where appellate review discloses other theories to support it. See In Re Estate of Yohn, Fla.1970, 238 So.2d 290; Goodman v. Goodman, Fla.App.1967, 204 So.2d 21; Bambrick v. Bambrick, Fla.App.1964, 165 So.2d 449.

Sub judice, the record consists of thousands of pages of testimony which we have reviewed. Sufficient facts exist for a divorce to be awarded to the husband on the ground of 'extreme cruelty.' For this reason, that aspect of the judgment under review is sustained.

The wife also asserts error in the trial court's alimony award to her of $3,000.00 per month, contending this to be inadequate. Admittedly, this sum appears to be sufficient, however, we must examine the record to determine whether the award is such that it will permit the wife to live in a manner reasonably commensurate with that provided for her by the husband during coverture and whether the husband has the ability to pay the award. In reaching a determination of 'ability to pay,' the husband's income alone is not the only factor for review. Among other things, consideration should be given to the husband's capital assets. In general, then, the primary criteria to be used in establishing the amount of alimony is the husband's ability to pay as above described, and the needs of the wife, taking into consideration the standard of living shared by the parties to the marriage. Chastain v. Chastain, Fla.1954, 73 So.2d 66; Schiff v. Schiff, Fla.1951, 54 So.2d 36; Klein v. Klein, Fla.App.1960, 122 So.2d 205; Peteler v. Peteler, Fla.App.1962, 145 So.2d 291; Sommers v. Sommers, Fla.App.1966, 183 So.2d 744; Kaufman v. Kaufman, Fla.1953, 63 So.2d 196; Astor v. Astor, Fla.1956, 89 So.2d 645. But see also: Kahn v. Kahn, Fla., 78 So.2d 367, for a limitation on the amount of alimony award.

Sub judice, the husband's answer to his wife's charges admitted that '. . . he is a man of substantial means.' The judgment under review found:

'With a gross 1965 income from family trusts totaling $521,888.47, the defendant may be considered a man of conspicuous wealth, although a maza of spendthrift restrictions, pledges, alienations and assignments for various purposes . . . debts totaling $1,400,000; individual business operations involving helicopters, airplanes, race horses and real estate, and taxes reaching the current maximum 70 percent bracket overlying the whole, tend to rob the financial picture of much of its rosy hue.'

Thus, while the trial judge in 1967 clearly considered all obligations of the husband, consideration of his assets was apparently limited to his 1965 trust income. The record, however, abundantly discloses that at age 40 (which arrived during litigation), the husband became entitled to a distribution of trust assets valued to approximately $2,500,000.00, and at age 50 he will become entitled to another similar distribution. Also, the husband is a contingent beneficiary under his mother's substantial trust arrangements.

Equally garnered from the record is the fact that during the marriage of these parties, and prior to their separation, the wife was afforded numerous privileges, such as: a $3,000.00 per month allowance to spend as she desired; clothing allowances of approximately $5,000.00 per month; the use of various automobiles, as well as the use of an airplane and helicopter at any time. To say the least the luxuries shared by these parties...