Goldstein v. Goldstein, s. 73--469
| Decision Date | 16 October 1973 |
| Docket Number | Nos. 73--469,73--470,s. 73--469 |
| Citation | 284 So.2d 225 |
| Parties | Sherry C. GOLDSTEIN, Appellant, v. Robert S. GOLDSTEIN, Appellee. |
| Court | Florida District Court of Appeals |
Miller & Podell, Miami Beach, for appellant.
Marx & Squitero, Coconut Grove, for appellee.
Before PEARSON, CHARLES CARROLL and HENDRY, JJ.
We have for consideration two interlocutory appeals filed by Sherry C. Goldstein, from orders entered in her action for dissolution of marriage, which was commenced on November 26, 1971.
Included in the allegations of the petition were that the parties were married in 1959, had separated in August of 1971, and that the marriage was irretrievably broken; that there was one child of the marriage, aged five years; that the petitioner was without funds and in need of support for herself and the child; that the husband's net worth was in excess of $200,000 and that his income for 1970 was $35,000. The wife sought dissolution of the marriage, custody, child support and alimony, and to establish a joint interest in certain property held by the husband.
The husband moved for an order to require the wife to submit to a mental and physical examination, for the purpose of having a doctor determine whether she was capable of supporting herself. As basis therefor, his motion stated that in a discovery deposition the wife had testified she was unable to work due to health conditions, involving her loss of weight (to between 65 and 70 pounds); and the motion recited that it would be necessary for the respondent husband 'to show that the petitioner's health is not impaired and that her loss of weight is something of her own choosing.'
On March 13, 1973, an order was entered directing the wife to appear for such examination before a named doctor 'at least two weeks before the trial of this matter.' On April 6, 1973, the husband filed a motion for imposition of sanctions for failure of the wife to submit to physical examination as ordered. The wife filed a response thereto wherein she alleged that after the marriage in 1959 when she was 21 years of age, she had modeled twice a week for some six months, but otherwise had not been gainfully employed; that she was no longer capable of such employment; that she had attended college for two years but did not have skills qualifying her for gainful employment 'such as secretarial or typing skills,' and that her time was consumed in caring for the child. She contended therein that her failure to appear for the examination should be considered immaterial in view of her circumstances. In support thereof she filed an affidavit by her mother stating that in prolonged earlier illnesses the petitioner had, in the belief of her mother, developed fear and an aversion to appearing for treatment by doctors, except 'when there is an absolute medical necessity.'
Thereupon on April 12, 1973, the court entered one of the interlocutory orders appealed from, in which, upon reciting that the petitioner had willfully failed to comply with the order for mental and physical examination, the court struck the petitioner's claim for alimony.
Promptly thereafter the petitioner filed a motion to vacate that order. Therein she announced readiness and willingness to submit to examination by the doctor as previously ordered, 'although the petitioner continues to fear medical examinations for the reasons set forth in the affidavit of her mother.' Her motion stated: 'the petitioner never intended to be disrespectful or willful in disregard of the court's said order for compulsive physical examination, and now entreats the court to grant her the opportunity to obey said order.' The court entered an order denying that motion, from which the wife appealed.
The appellant contends the sanction imposed by the court represented an abuse of discretion, being unduly harsh and harmful to her cause in that it struck her right to claim rehabilitative alimony or other alimony having no bearing on her possible condition of health. Further, the appellant contends that despite her failure or refusal to comply with the...
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