Kaufman v. Kaufman

• Decision Date: 05 August 1952
• Citation: 63 So.2d 196
• Parties: KAUFMAN v. KAUFMAN.
• Court: Florida Supreme Court

Page 196

63 So.2d 196

KAUFMAN v. KAUFMAN.

Supreme Court of Florida, en Banc.

Aug. 5, 1952.

On Rehearing Jan. 20, 1953.

Caldwell, Parker, Foster & Wigginton, Tallahassee, for appellant.

Horn & Ossinsky, Charles W. Luther and Walter Shelley, Daytona Beach, for appellee.

CHAPMAN, Justice.

This is an appeal from a final decree awarding separate maintenance unconnected with a divorce entered in the Circuit Court of Volusia County, Florida. The decree fixed Lotty Kaufman's separate maintenance in the sum of $3,900 per annum and counsel fees for her attorney in the sum of $4,000. The parties lived in Toms River, New Jersey, prior to moving to Daytona Beach, Florida, approximately three years ago and prior to their separation. The husband purchased a duplex apartment at Daytona Beach and occupied the lower apartment as a home and rented the upper one for $60 per month. The apartment was valued at from $20,000 to $22,000. It does not appear in the record the amount appellant paid for the apartment.

On November 10, 1950, when the husband left his wife at Daytona Beach and returned to Toms River, New Jersey, he was approximately 80 years of age and the wife was 60. When the separate maintenance suit was filed in November, 1950, the husband Samuel Kaufman, had a substantial sum of money on deposit with a bank at Daytona Beach and bonds and other property in a safety deposit box at the same bank. The wife, Lotty Kaufman, had a bank account and a separate safety deposit box at the same bank. An inventory thereof, as made by Judge Frederick, disclosed a savings account appearing in the name of Lotty Kaufman in the sum of $1,352. The wife's safety deposit box contained bonds in the sum of $835, also three diamond rings containing 18 large diamonds and numerous small ones having a total value of between five and six thousand dollars. The modest scale of living on the part of the Kaufmans is characterized as 'miserly'. During the thirteen years prior to the separation the husband gave his wife a $10 weekly allowance, which she spent for clothes, cosmetics and other personal items.

Honorable Herbert B. Frederick, Circuit Judge, on December 12, 1950, heard the wife's application for support and maintenance and counsel fees, and entered an order requiring Samuel Kaufman to pay to his wife, Lotty Kaufman; (1) the sum of $30 per week; (2) the sum of $400 as temporary counsel fees; (3) the wife was granted the right to occupy the downstairs apartment as her living quarters free of rent; (4) the costs of maintenance of the property, such as taxes, insurance, water rents, sewer rents and all other necessary alterations and repairs on the apartment house to be paid by the husband; (5) costs of litigation in the sum of $50 was allowed the wife. The order is dated December 12, 1950.

On December 14, 1950, Samuel Kaufman answered the bill of complaint as filed by his wife, Lotty Kaufman. The reason set out in his answer for separating from his wife was she 'constantly nagged and abused him.' That she requested him to give 'her money to take care of her relatives' and wanted him to convey to her all his property. The defendant is approximately 80 years of age and is subject to heart attacks, and that the nagging and mistreatment on the part of the wife causes the heart attacks to become longer and more violent. The husband specifically denied that it was his intention to withhold from his wife the means of support but had supported her and furnished a home, sent her money and was willing and able to support her according to his station in life. That the wife was never penniless or without the means of support, but she had money on deposit in the bank to check on; government bonds in a safety deposit box at the bank; and additional thereto, at the time of bringing her bill of complaint, owned and possessed rings and diamonds of the value of between $5,000 and $6,000. The answer admitted that the husband owns property and other assets and is financially able to support his wife, but the total value of his property is not set out in the answer.

On January 20, 1951, Judge Frederick made and entered an order in the cause (Tr. 46-49). The order recites that 'Lotty Kaufman was not on the date of filing her bill of complaint, to-wit, November 18, 1950, (as is alleged therein) and is not now without means or funds with which to support hereself during the pendency of this suit and that she will not be left penniless as alleged unless the Court retains within its jurisdiction cash funds belonging to the defendant, Samuel Kaufman.' * * * 'The plaintiff, Lotty Kaufman, had admitted that the defendant (Samuel Kaufman) and she had refused $22,000 for the premises in which she now resides now within the jurisdiction of this Court.' The order dated December 12, 1950, which required the payment of $400 attorneys fees and $50 as costs and expenses was vacated. A check in the sum of $450 payable to counsel for plaintiff-appellee under the order dated December 12, 1950, was duly surrendered 'with admission of the impropriety of allowing such fees and costs under the circumstances.' The check was returned to counsel for defendant-appellant.

The order of Judge Frederick dated December 12, 1950, directed Samuel Kaufman to pay Lotty Kaufman the sum of $30 per week and allowed the wife to remain in the downstairs apartment as living quarters. Judge Frederick became ill and another Judge was assigned to Volusia County. On April 21, 1951, a petition was presented for additional support and maintenance on the theory that Lotty Kaufman was unable to live on $30 per week, as costs of living had materially increased and the $30 per week allowance was insufficient. The same petition prayed for additional counsel fees. The Court heard the parties and entered an order increasing the temporary support and maintenance from $30 to $40 per week. Other provisions appear in the order but a recital thereof is unnecessary for a disposition of this controversy.

Counsel for Lotty Kaufman filed in the Court below a motion for an order to show cause why Samuel Kaufman should not be held in contempt for the violation of the order requiring him to pay his wife the sum of $40 per week, as Kaufman was in arrears in his payments in the amount of $90. Also, Kaufman had failed to submit himself to discovery proceedings according to stipulations of counsel. On June 21, 1951, (Tr. 74), Samuel Kaufman, through counsel, answered the motion for an order to show cause on discovery proceedings and represented that he was over 80 years of age; that he resided at Toms River, New Jersey; that he was in failing health and did not feel physically able to travel the distance from Toms River, New Jersey, to Daytona Beach, Florida incidental to the alleged discovery proceedings, but was willing to answer all questions propounded to him at Toms River, N. J., pertinent to the issues made by the pleadings in the case at bar. Kaufman further set out that he was not in arrears in his alimony payments, but had sent checks each month pursuant to the Court order dated December 13, 1950. That the wife had obtained rents from the tenant in the apartment, which, if correctly credited to the alimony claims, would clear him of being in arrears in alimony payments as charged.

Honorable Don Register was assigned to Volusia County and heard the evidence of the parties on the issues presented and thereafter held: (1) that Samuel Kaufman was in arrears in support and maintenance money in the sum of $130; (2) he allowed Lotty Kaufman's counsel a fee of $75 for services rendered incident to the contempt proceedings; (3) that Kaufman was in contempt because of his failure to appear in Volusia County in connection with the discovery proceedings; (4) he was further ordered to appear in the Circuit Court of Volusia County, Florida, at 10:00 o'clock A.M., June 28, 1951, for the discovery proceedings, and in default thereof that he pay the estimated costs and expenses of $500 for the appellees counsel in going to Toms River, N. J., to take the depositions. On June 29, 1951, Honorable Don Register entered a second order in the cause in which he held that Samuel Kaufman was in contempt. Arrears in support and maintenance money, with counsel fees, were assessed and made a lien on the apartment of Samuel Kaufman. The rent on the upstairs apartment in the sum of $60 per month was given to Lotty Kaufman. The estimated costs of her counsel going to Toms River and returning in amount of $500 was entered as a judgment against Kaufman. The Court enjoined Samuel Kaufman from taking any steps in the cause. His answer then in the record was stricken, a decree pro confesso entered against him and the cause ordered to proceed ex parte. The same order provided for the arrest of Kaufman, with directions that he be brought before the Court to show cause why he should not be punished for contempt of Court.

The Chancellor referred the cause to a Special Master, who heard the testimony of Mrs. Matilda Schott, Lotty Kaufman and attorney Gordon F. Mac Calla and thereafter, on July 19, 1951, a final decree was entered for the plaintiff-appellee. It was decreed that Samuel Kaufman should pay to Lotty Kaufman, his wife, the sum of $3,900 per annum as alimony at the rate of $75 per week. An attorney fee in behalf of the wife's attorney was fixed at the sum of $4,000. Items of cost likewise were assessed against the husband and made, by the terms of the decree, a lien on the apartment owned by Samuel Kaufman. The Court retained jurisdiction to enforce the decree, and further for the punishment of Samuel Kaufman for contempt of Court. Kaufman appealed.

The statute under which the case at bar was brought recognized the right and authority of a husband to fix the standard of living for himself and family. This right and authority exists now in the husband and such prerogative, in the absence of statutory authority, cannot be usurped by the...