Floyd v. Floyd
| Decision Date | 13 May 1926 |
| Citation | 108 So. 896,91 Fla. 910 |
| Parties | FLOYD v. FLOYD. |
| Court | Florida Supreme Court |
Suit by J. W. Floyd against Addie Hunton Floyd for divorce. From a decree allowing a temporary solicitor's fee and temporary alimony, plaintiff appeals.
Affirmed in part, and reversed in part.
Syllabus by the Court
'Alimony,' which literally signifies nourishment or sustenance, is allowance for wife's maintenance when living apart from husband, or divorced, and is based on common-law obligation of husband to support wife. 'Alimony' is based on the common-lay obligation of the husband to support the wife. It literally signifies nourishment or sustenance and is the allowance which a husband may be compelled to pay his wife for her maintenance when living apart from him, or has been divorced. [Ed. Note.--For other definitions, see Words and Phrases, First and Second Series, Alimony.]
'Temporary alimony' is allowance made to wife for maintenance during pendency of divorce action; where wife is defendant in divorce action, temporary alimony is conditioned on petition therefor being well founded (Rev. Gen. St. 1920, § 3194). 'Temporary alimony' is an allowance made to the wife for her maintenance during the pendency of the action as provided by section 3194, Revised General Statutes of Florida. Where the wife is the defendant, it is conditioned on the petition therefor being well founded. [Ed. Note.--For other definitions, see Words and Phrases, Temporary Alimony.]
Before court is justified in making allowance to wife of temporary alimony and suit money, it must be shown that wife lacks means to maintain herself during litigation, and employ counsel, and that husband has means to supply such necessity (Rev. Gen. St. 1920, § 3194). Two facts must concur and be made to appear before a court is justified in making an allowance to the wife, in a divorce suit, for temporary alimony and suit money: (1) The necessity of the wife from want of means or sufficient means to maintain herself during the litigation, and with which to employ counsel; (2) it must be made to appear that the husband has means to supply this necessity.
Granting or withholding temporary alimony and suit money is not matter of right, but of judicial discretion, to be exercised according to established rules of law wisely adapted to facts of case and subject to review by appellate court. The granting or withholding of temporary alimony and suit money is not a matter of right, but it is within the discretion of the court to whom the application therefor is made; but this discretion is not an arbitrary one; it is a judicial discretion, to be exercised in accordance with established rules of law wisely adapted to the facts apparent in each particular case, and is subject to review by the appellate court.
Voluntary absence of wife from husband's household without cause will bar her rights to temporary alimony; where husband charges that wife voluntarily absented herself rom his household without cause, temporary alimony will be denied unless sufficient showing is made by wife in refutation of such charge. The voluntary absenting of the wife from the husband's household without cause will bar her right to temporary alimony. Where, therefore, a charge to that effect is asserted by the husband in defense of the wife's application for temporary alimony, the temporary alimony sought will be denied, unless a sufficient showing is made by the wife in refutation of such charge.
If wife's income from her separate estate provides for her maintenance her application for temporary alimony will be denied. If it is made to appear that the wife's income from her separate estate is sufficient to provide for her maintenance, her application for temporary alimony will be denied.
If either voluntary absence of wife from husband's home without his fault or wife's possession of ample means to defend divorce suit is established, petition for temporary alimony should be denied. When the voluntary absence of the wife from the husband's home without his fault and the contention of the husband that the wife has ample means to prosecute her defense are put in issue, it is the duty of the chancellor to determine these issues; and, if one or both of them is found in favor of the husband, the petition for temporary alimony should be denied.
Appeal from Circuit Court, Duval County; Daniel A Simmons, judge.
McGill & McGill, of Jacksonville, for appellant.
David Kaufman, of Jacksonville, for appellee.
In the spring of 1923, Addie Hunton of Brooklyn, N. Y., secretary of the National Association for the Advancement of Colored People, came to Jacksonville, Fla., in the interest of that organization. While in Jacksonville, J. W. Floyd, the appellant, heard her speak, became fascinated with her at 'first sight,' and sought an introduction. She continued her journey to South Florida, from whence she returned to Jacksonville in about 10 days and was introduced to Floyd, who precipitated instanter the subject of matrimony as the major topic of conversation. Floyd proposed, Addie Hunton accepted, and, after 3 days spent in Jacksonville continued her journey to Georgia, Alabama, and Louisiana in the interest of the organization for which she was secretary. Floyd communicated with her at every stop along her journey by letter, telephone, and telegraph. She reached Savannah, Ga., about the middle of April, where she was met by Floyd, who renewed his proposal and urged an early marriage. From Savannah, Addie Hunton proceeded to Ft. Valley, Ga., where she again met and was married to Floyd, April 30, 1923, after having communicated with him by long-distance telephone.
This appears to have been the second matrimonial venture of both the contracting parties. The groom was in his early 60's and the bride was in her middle 40's. The marriage rites being concluded the groom returned at once to Jacksonville, Fla., and the bride, now Addie Hunton Floyd, continued her work as secretary for the National Association for the Advancement of the Colored People, reaching the home office in New York about the 1st of June. Floyd went to New York in July, 1923, where he lived and cohabited with Addie Hunton Floyd from the 5th to the 31st of that month. He then returned to Jacksonville, and, so far as the record shows, never saw his wife again, though they corresponded frequently until May, 1924, and Floyd, at various times, sent her money by check to pay certain doctor bills and living expenses.
On August 13, 1924, Floyd filed his bill praying for divorce on the ground of desertion. On September 3, 1924, Addie Hunton Floyd filed her petition for temporary alimony, suit money, and solicitor's fees as authorized by section 3194, Revised General Statutes of Florida 1920. This petition is sworn to, and, among other things, alleges that----
'She has a good, true, and complete defense to the charge of desertion alleged in the bill of complaint, but that her health is bad, and she has no property or money wherewith to retain a solicitor to represent her, nor money wherewith to pay court costs, nor money wherewith to maintain herself while this cause is being litigated.'
A special master was appointed October 6, 1924, to take testimony as to the faculties of the parties under the petition for temporary alimony and counsel fees. On September 16, 1924, commission and interrogatories were issued to Samuel W. Le Vine of 261 Broadway, N. Y., to take the deposition of Addie Hunton Floyd. The special master filed his report October 27, 1924, and the cause was considered on final hearing the same date of the master's report, and the chancellor entered his decree allowing $200 temporary solicitor's fee, and $25 per week temporary alimony. Floyd appeals from this decree.
Was the decree allowing temporary alimony and solicitor's fees providently entered may be stated as the sole question presented here for our consideration.
The marriage of the parties hereto is admitted. The grounds on which temporary alimony and suit money are based are recited in that part of the petition heretofore quoted in this...
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