Hobbs v. Hobbs, 2541
| Decision Date | 17 January 1962 |
| Docket Number | No. 2541,2541 |
| Citation | 136 So.2d 363 |
| Parties | Louise L. HOBBS, Appellant, v. Harvey L. HOBBS, Appellee. |
| Court | Florida District Court of Appeals |
W. H. Carmine, Jr., and W. Ed Weaver, Jr., Fort Myers, for appellant.
Charles M. Roberts, Fort Myers, and Charles R. Holley, St. Petersburg, for appellee.
Louise L. Hobbs was plaintiff and counter-defendant in divorce proceedings wherein the chancellor granted a divorce to the defendant Harvey L. Hobbs but allowed the plaintiff $200.00 per month permanent alimony. The plaintiff urges on appeal that (1) the award of alimony was insufficient, (2) she should have been granted a portion of the defendant's estate because of her right to special equity therein and (3) the allowance for her attorney's fees was inadequate. Child custody rights are not involved and the divorce itself is not in issue.
On April 12, 1960 the plaintiff filed a complaint for separate maintenance unconnected with divorce. On May 31, 1960 she was allowed temporary alimony and attorney's fees. The defendant counterclaimed for divorce on the ground of adultery, whereupon the plaintiff charged the defendant with adultery and prayed also for a divorce. On March 10, 1961 the defendant, pursuant to final hearing, was granted a divorce from the plaintiff on the ground of extreme cruelty. The plaintiff was granted a monthly allowance of $200.00 and a total of $2500.00 for the services of her attorney.
The decree found that Louise Hobbs had no interest in any property held and owned by Harvey Hobbs and she was denied any part thereof; but her separate property rights were confirmed. With reference to alimony, the decree provided:
(Emphasis ours.)
The parties were married in 1942 when Harvey Hobbs was an employee earning only meagre wages. He thereafter established a profitable nursery business. For several years preceding this litigation his annual income average was approximately $40,000.00. The indicated value of his property holdings at the time of this suit was in excess of $265,000.00.
The evidence was strangely vague and obscure as to the full extent of Louise Hobbs' separate estate. In addition to an undivided one-half interest in the home place purportedly worth $50,000.00, she apparently had an interest of indeterminate value in an establishment known as Harlon Enterprises and was named beneficiary in an inter vivos trust set up by the defendant.
In reviewing the decree within the compass of the points on appeal we are confronted with an unchallenged divorce in which the appellant wife, although adjudged at fault, nevertheless was awarded permanent alimony of $200.00 per month. A wife from whom the husband obtains a divorce because of her misconduct ordinarily is denied alimony eo nomine, but allowances have been granted in exceptional cases. Mathews v. Mathews, 1934, 117 Fla. 60, 157 So. 195; 17 Am.Jur., Divorce and Separation, § 676. Moreover, an offending wife may be decreed an interest in the husband's estate by showing her entitlement to special equity therein. See infra 4th par. et seq.
In Mathews v. Mathews, supra, the Supreme Court of Florida affirmed an award of $50.00 per month to a deserting wife from whom the husband had been granted a divorce. The parties had been married for many years. The court, in a split decision, sustained the allowance as 'justified by an equitable consideration of the whole record.' See also Gill v. Gill, 1933, 107 Fla. 588, 145 So. 758; 10 Fla.Jur., Divorce, 170.
The defendant here has not challenged the allowance of alimony. On this phase of the appeal, therefore, the only question is the plaintiff's contention that it was error not to have allowed more. In considering this question the criterion is not that we would have ruled differently had we been in the position of the chancellor but whether we conclude, with requisite assurance, that the chancellor's ruling constituted a palpable abuse of discretion. There appears no such abuse. We here note, without need for painful detail,...
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