Gottesman v. Gottesman
| Decision Date | 25 March 1969 |
| Docket Number | No. 68--567,68--567 |
| Citation | 220 So.2d 640 |
| Parties | Lena GOTTESMAN, Appellant, v. Alfred GOTTESMAN, Appellee. |
| Court | Florida District Court of Appeals |
Howard N. Pelzner, Miami, for appellant.
Horton & Schwartz, Theodore Epstein, Miami, for appellee.
Before CHARLES CARROLL, C.J., and HENDRY and SWANN, JJ.
The appellant obtained a decree of divorce from the appellee on May 11, 1950. Sixteen years later, in April of 1966, he petitioned for reduction of alimony payments. The wife responded with a petition to enforce payment of arrears. In September of 1966, a judgment was entered in her favor for alimony arrears in the amount of $43,216, with execution thereon authorized. At that time the court also reduced the alimony to $500 per month, from the $866 per month which the initial award of $10,400 per year had imposed. The husband appealed, and this court affirmed. 202 So.2d 775.
Approximately a year and a half later the wife petitoned for a rule to show cause, alleging arrears of alimony occurring subsequent to the time of the earlier judgment for arrears. A rule to show cause was issued, and after hearing thereon the trial court entered an order finding that the husband was further in arrears of alimony, as of May 1, 1968, in the amount of $9,500. Judge was not entered on the arrears. See 10 Fla.Jur., Divorce, § 223. In a separate provision the order specified that execution on the amount found to be in arrears would not be authorized until further order of the court. The order denied the wife's application for interest on the arrears and for attorney fees, and it was ordered that the husband should continue making alimony payments in the previously fixed amount of $500 per month. The wife then took this appeal from that order.
Appellant contends the court erred in withholding execution on the amount of alimony found to be in arrears. As held on the earlier appeal in this case, the unpaid alimony constituted a vested right not subject to modification, and it is noted that in the order appealed from, the trial court did not modify the alimony arrears, or permanently deny enforcement thereof.
The proceedings in the trial court at the hearing on the rule to show cause were not transcribed and are not disclosed in the record. Therefore, we must assume that the trial judge, as he was entitled, found there were equitable considerations which justified and prompted withholding present enforcement of the arrears in alimony, by judgment and execution thereon, or otherwise.
The enforcement of the payment of arrears of alimony which have not been reduced to judgment is a matter resting in the discretion of the court, to be determined on equitable considerations, including the husband's financial status. From the disclosures in the earlier decision in this case, it appears that the husband is approximately 80 years of age, and that his financial status has been deteriorating for a number of years. The trial court was aware that approximately two years previously the wife had received a judgment against the husband for more than $43,000 and that execution thereon had been authorized, and of the continuing obligation of the husband to pay alimony at the rate of $500 per month. Therefore, in the absence of a record demonstrating a requirement to the contrary, we find no basis to disturb the ruling of the trial court on this question.
We find no error in the refusal of the trial court to allow interest on the alimony arrears. There is no showing that the decree awarding the alimony provided for defaulted installments to bear interest from their respective due dates. A judgment, had one been entered on the amount of alimony arrears, would have borne interest as provided by law from the date of the entry thereof.
We reverse the provision of the order which denied the wife's application for attorney fees. In Witlin v. Witlin, Fla.App.1968, 206 So.2d 275, 276, this court affirmed a denial of attorney fees to an ex-wife in a proceeding subsequent to divorce decree in which she opposed an ex-husband's petition for reduction of child support. In so ruling in the Witlin case we said:
Subsequently the wording of the statute was changed. It...
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Vitt v. Rodriguez
...v. Shellmyer, 418 So.2d 477, 478 (Fla. 4th DCA 1982); Smithwick v. Smithwick, 343 So.2d 945 (Fla. 3d DCA 1977); Gottesman v. Gottesman, 220 So.2d 640 (Fla. 3d DCA 1969). Clearly, determining the manner in which arrearages will be repaid includes the task of designating whether the payments ......
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Attorney General of Florida, on Behalf of State v. D'Agosto
...to be heard and present evidence along with confronting witnesses in connection with matters involving support arrearages. In Gottesman vs. Gottesman, 220 So.2d 640 (Fla. 3rd [sic] DCA 1969), the Court entered an order finding the husband to be in arrears but did not authorize execution on ......
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Smithwick v. Smithwick, 76--267
...of the court to be determined on equitable considerations, including the financial status of the parties. See Gottesman v. Gottesman, 220 So.2d 640 (Fla.3d DCA 1969). In light of our disposition of the above points, we deem it unnecessary to dispose of the remaining points The cause is rema......
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Teta v. Teta
...reduce the decree as regards past due installments. Pottinger v. Pottinger, 133 Fla. 442, 182 So. 762 (1938); Gottensman v. Gottesman, 220 So.2d 640 (Fla.App.3rd, 1969); Petrucci v. Petrucci, 252 So.2d 867 (Fla.App.3rd, 1971); and Hynes v. Hynes, 277 So.2d 557 (Fla.App.3rd, 1973). We recogn......