Haddon v. Haddon

• Decision Date: 26 November 1895
• Citation: Haddon v. Haddon, 36 Fla. 413, 18 So. 779 (Fla. 1895)
• Parties: HADDON v. HADDON.
• Court: Florida Supreme Court

18 So. 779

36 Fla. 413

HADDON v. HADDON.

Florida Supreme Court

November 26, 1895

Appeal from circuit court, Hillsborough county; H. L. Mitchell Judge.

Action by Camilla E. Haddon against Samuel P. Haddon for divorce.From a decree awarding the payment of alimony, defendant appeals.Reversed.

Syllabus by the Court

SYLLABUS

1.Two things must concur, and must be made to appear, before a court is justified in making any allowance to the wife in divorce proceedings for alimony pendente lite and for counsel fees: (1) a necessity therefor must appear on the part of the wife, from her want of means, or of sufficient means, to maintain herself during the litigation, and with which to employ counsel; (2) and it must also appear that the husband has the pecuniary ability to supply that necessity.If it appears in such a case that the applicant wife has abundant means or property of her own, that is under her control and at her disposal, out of which to maintain herself and to employ counsel, then the necessity for the allowance is wanting, and it should be denied.

2.The granting or withholding of allowances for alimony pendente lite and counsel fees in divorce proceedings is discretionary with the court to whom the application therefor is made.It is not an arbitrary discretion, but a judicial one, to be exercised in accordance with well-established rules of law wisely adapted to the facts appearing in each particular case; and, when the discretion is abused, it is a matter from which an appellate court will grant relief.

COUNSEL

Sparkman & Sparkman, for appellant.

OPINION

TAYLOR J.

This appeal is from an interlocutory decree rendered on the 11th of June, 1889, in a suit for divorce brought by Camilla E Haddon, the appellee, against her husband, Samuel P. Haddon, the appellant, whereby he was required to pay to the complainant the sum of $100 for her support during the pendency of the suit, and the further sum of $100 for her counsel fees in the prosecution of the suit.The bill is brought by the wife, and alleges that there are five living children, the issue of the marriage, the oldest of whom is 18 years of age, the next one 17, the next two (twins) 12 years old, and the youngest 8 years old.The grounds of divorce are the habitual indulgence in violent and ungovernable temper and cruelty on the part of the husband towards the complainant wife; and she prays for absolute divorce, and custody of the children.The decree appealed from was made upon a sworn petition filed by the complainant, supported by her own and other affidavits, in which petition she alleges that she is 'wholly destitute' of the means of supporting herself and the said minor children during the pendency of the suit; and, upon information and belief, she alleges that the husband (appellant) has real estate and personal property to a large amount, to wit, upwards of $5,000, and amply sufficient to enable him to pay such sums as may be necessary for her support, and to conduct the suit, and that he has an annual income from his labor, as a book agent, of about $700.

At the hearing before the judge below, of the application, it appeared from the undisputed facts presented by affidavits and documents of record that, about one year before the complainant exhibited her bill for divorce, she and the defendant sold and conveyed all but about three acres of what then remained of a homestead tract of land situated in or quite near to the city of Tampa, that belonged to the husband, for the sum of $10,050; that about $1,000 of this amount was paid to a real-estate agent as commissions for effecting the sale; that, of the balance of the purchase price, the sum of $4,505.37 was turned over by the husband to the wife, as she says, in consideration of her execution of the deed to their homestead, and consent to its sale; that at the same time, and, as she says, upon the same consideration he conveyed to her, through the medium of a third party, the retained 2.82 acres of the homestead, upon which their furnished dwelling house was located; that besides this, and about a month prior thereto, the husband also gave to his wife, as she says, in consideration of her execution of the conveyance, the sum of $1,506.60, being one-half of the price at which he then sold to another party a part of their said homestead tract; that besides this,...