Halberstadt v. Halberstadt
| Decision Date | 21 May 1954 |
| Citation | 72 So.2d 810 |
| Parties | HALBERSTADT v. HALBERSTADT. |
| Court | Florida Supreme Court |
William V. Chappell, Jr., Ocala, for appellant.
Charles A. Savage, Ocala, for appellee.
Appellee sued appellant for divorce, charging extreme cruelty, adultery and habitual intemperance. A settlement of property rights was also prayed for. Defendant's answer denied the allegations of the complaint, proffered a counterclaim, praying for divorce on the ground of extreme cruelty and prayed for equitable division of all property owned by the parties.
A final decree was entered July 22, 1952, awarding the plaintiff a divorce, the legal and equitable title to certain real property owned by the parties as an estate by the entireties, together with certain personal property located on the premises. Defendant was awarded an automobile, a boat and other personal effects. August 11, 1952, defendant moved for a rehearing which he did not bring on for hearing till April 8, 1953. On June 8, 1953, defendant was permitted to offer affidavits, and newly discovered evidence in support of his petition for rehearing. The purpose of this procedure appears to have been to enable the court to determine whether or not the petition for rehearing had merit. June 3, 1953, petition for rehearing was denied. July 31, 1953, more than one year after entry of the final decree, appellant filed his notice of appeal to review the order denying the petition for rehearing. August 8, 1953, appellant filed his assignments of error wherein he challenged the correctness of the final decree entered more than a year prior thereto. September 11, 1953, appellee moved in this Court to strike the assignments of error, which motion was denied September 21, 1953.
Appellee contends that this Court should now grant a rehearing and strike the assignments of error, thus disposing of the controversy, because appellant has abandoned all assignments of error except assignment 2 which attacks the correctness of the final decree. This is true says appellee, because an order denying a petition for rehearing taken more than sixty days after entry of the final decree does not bring up the merits of the final decree for review. Thomkin Corp. v. City of Miami Beach, 135 Fla. 360, 185 So. 422; Hollywood, Inc., v. Clark, 153 Fla. 501, 15 So.2d 175; and Lauderdale By The Sea Development Co. v. Lauderdale Surf and Yacht Estates, 160 Fla. 929, 37 So.2d 364, 10 A.L.R.2d 1072 are relied on to support this contention. The trial court, for apparently good reasons rejected this contention. This appeal is from the final decree except as to that part granting the divorce.
Several questions are urged for determination but in our view they all turn on that of whether or not a lump sum in property may be awarded as alimony.
We think this question requires an affirmative answer. Section 65.08, Florida Statutes 1951, F.S.A., authorizes the payment of alimony in a lump sum. Bezanilla v. Bezanilla, Fla., 65 So.2d 754 and Fuller v. Fuller, Fla., 38 So.2d 51 support the view that a court of equity may decree all property owned by the entireties to the wife or the husband, divide it equally between them and thus give full relief and close the matter in litigation. Appellant derives comfort from Section 689.15, Florida Statutes 1951, F.S.A., abolishing the right of survivorship in real estate held by joint tenants but we do not think said statute has any application to this case. We have also examined Boles v. Boles, Fla., 59 So.2d 871; Hogan v. Martin, Fla., 52 So.2d 806 and Markland v. Markland, 155 Fla. 629, 21 So.2d 145, but these cases do not rule the case at bar.
The record shows that at the time this suit was instituted the parties owned a small parcel of land near Ocala on which was located a dwelling. Appellee contributed about $3,000 and appellant about $800 to purchase the property. A restaurant was later constructed on the property with funds borrowed by both parties and repaid with profits from the restaurant which was conducted in the name of both parties, but appellee appears to have kept the books and assumed all responsibility for the labor and management. Appellant appears to have been a kind of majordomo about the place but spent his time neglecting the business, getting drunk, insulting the patrons, spitting on his wife and otherwise discrediting the business. He had no affinity for good manners and was allergic to consistent labor. Some of his antics, such as spitting on his wife, were child stuff or the...
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