Frank v. Frank

• Decision Date: 05 October 1954
• Citation: 75 So.2d 282
• Parties: Doris FRANK, Appellant, v. Belmont FRANK, Appellee.
• Court: Florida Supreme Court

Page 282

75 So.2d 282

Doris FRANK, Appellant, v. Belmont FRANK, Appellee.

Supreme Court of Florida, Special Division B.

Oct. 5, 1954.

Rehearing Denied Nov. 17, 1954.

J. Lewis Hall, Tallahassee, and Abbott, Burris & Langer, Miami Beach, for appellant.

Wm. J. Pruitt, Miami, for appellee.

HOBSON, Justice.

This suit originated in the Circuit Court of the 11th Judicial Circuit, in and for Dade County, Florida, with the filing of a complaint by Doris Frank against her husband, Belmont Frank. The wife sought a divorce, custody of the minor daughter born of the marriage and support money for the child as well as alimony, both temporary and permanent.

Belmont Frank filed an answer in which he denied most of the material allegations of the complaint but admitted the allegations of residence in Florida for the period of time prescribed by statute, of the marriage, and of the birth of the Child. The record does not disclose that the appointment of the special master, who was appointed in this cause to take the testimony and report the same together with his findings of fact, conclusions of law and recommendations, was requested by specific stipulation of the parties, or that they formally agreed upon Hon. J. P. Marchant as such appointee. It is clear, however, that the appointment was not objected to by either litigant.

The special master found that the court had jurisdiction of the parties as well as the subject matter, and that the plaintiff had established by competent substantial evidence her charge against her husband of extreme cruelty. He recommended that a decree of divorce in favor of Doris Frank be granted, and that Belmont Frank be ordered to pay to his wife a lump sum of $5,000 as well as $100 per week support money for permanent alimony and for support of the minor child whose custody he recommended be granted Mrs. Frank with the right of reasonable visitation on the part of Mr. Frank.

The report of the special master was approved and adopted by Circuit Judge Wayne Allen, who, as chancellor, entered a final decree consonant therewith in the following language:

'This cause coming on before me upon exceptions by both plaintiff and defendant to the Master's report, and the Court having considered the record and heard argument of counsel, it is

'Ordered, Adjudged and Decreed as follows:

'1

'That the report and recommendations of the Master be, and the same are hereby sustained.

'2

'That the equities of this cause are with the plaintiff and that she is hereby granted a decree of divorce, a vinculo matrimonii, from the defendant, and that the bonds of matrimony heretofore existing between them be forever dissolved.

'3

'That the care, custody and control of the minor child of the parties is awarded unto the plaintiff, with the right of reasonable visitation granted to the defendant.

'4

'That the defendant is required to continue to pay to the plaintiff the sum of $100.00 per week for the support of the plaintiff and the said child.

'5

'That the defendant be required to pay to the plaintiff the sum of $5,000.00, in order that she be placed in such financial position that she can continue to live upon the monthly payments heretofore ordered.

'6

'That the plaintiff be required to convey to the defendant her interest in the lot in Burlington, Vermont, owned jointly by the parties.

'7

'That the attorneys for the plaintiff, Abbott, Burris and Langer, be allowed an additional fee of $3,500.00, payable by the defendant, and that the defendant pay to the plaintiff's attorneys the sum of.$492.46 as costs expended by said attorneys in connection with the prosecution of this case.

'8

'That any further costs in these proceedings, including the fee of the Special Master in Chancery, be taxed against the defendant.

'9

'That the Special Master in Chancery be allowed the sum of $750.00 for his services in this case.

'Done and Ordered in Chambers at Miami, Florida, this 13th day of October, 1953.

'/s/ Wayne Allen

'Circuit Judge'

Thereafter Judge Allen departed this life and a motion for rehearing was argued before Circuit Judge Pat Cannon who, sitting as chancellor subsequently entered the following order and final decree:

'This matter having been presented to the court upon Defendant's Petition for Rehearing For Purpose of Vacating Final Decree, and the court having heard argument of counsel for the respective parties, and briefs having been submitted; the court having reviewed the record, and being fully advised in the premises is of the opinion that the plaintiff has failed by competent testimony to prove the material allegations of her bill of complaint and has failed to prove by competent testimony, the jurisdictional question of residence and grounds for divorce.

'By reason of the findings of the court aforesaid, the Final Decree heretofore entered on the 13th day of October, 1953, was erroneous.

'It Is Therefore Considered, Ordered, Adjudged and Decreed as follows:

'1. That the defendant's petition for rehearing be and the same is hereby granted.

'2. That the plaintiff has failed to prove by competent testimony, the material allegations of her Complaint as applies to residence, and allegations of grounds for divorce.

'3. The equities are with the defendant and against the plaintiff.

'4. The Final Decree of divorce heretofore entered on the 13th day of October, 1953 in this cause, be and the same is hereby set aside, vacated and held for naught.

'5. The plaintiff's bill of complaint be and the same is hereby dismissed.

'6. The court shall retain jurisdiction of the parties for the purpose of taxing costs, allowance of attorneys' fees, Master's fees and such other costs as may have been properly incurred in the above entitled cause.

'Done and Ordered at Miami, Dade County, Florida this 11th day of December, 1953.

'/s/ Pat Cannon

'Circuit Judge'

From the foregoing final decree appellant Doris Frank has perfected an appeal to this court.

Appellant takes the position that Judge Cannon sitting for the first time as chancellor in this cause erred in granting the petition for rehearing and in entering the aforementioned final decree because the original final decree, which was favorable to her, finds ample support in the transcript of record. She contends that there is competent substantial evidence which not only justified the findings and recommendations of the master but which under established law in this jurisdiction required the chancellor to approve and adopt them and enter a final decree in conformity therewith.

Appellee has a contrary view. He contends that the final decree from which this appeal was taken and is being prosecuted is the one which should have been entered originally. His argument is that the record is devoid of any competent substantial evidence to support either the allegation of bona fide residence for the period of time required by statute or the charge of extreme cruelty.

We have carefully considered the evidence and have concluded that we must sustain appellant's contention. This court has ofttimes made the pronouncement that if a special master is appointed, by agreement or consent of the parties to a chancery cause, with authority to make findings of fact, conclusions of law and recommendations, his findings and recommendations should be approved and adopted by the chancellor unless clearly erroneous or it appears that the master has misconceived the legal effect of the evidence. Harmon v. Harmon, Fla., 40 So.2d 209; McAdow v. Smith, 127 Fla. 29, 172 So. 448; Kent v. Knowles, 101 Fla. 1375, 133 So. 315. And see Slatcoff v. Dezen, Fla., 74 So.2d 59. Of course, the...