Kennedy v. Kennedy
| Decision Date | 20 November 1974 |
| Docket Number | No. 44826,44826 |
| Parties | V. Jackson KENNEDY, Petitioner, v. Mary E. KENNEDY, Respondent. |
| Court | Florida Supreme Court |
George A. Routh and Carleton L. Weidemeyer of Wightman, Rowe, Weidemeyer, Jones & Turnbull, Clearwater, for petitioner.
John R. Parkhill, Tampa, for respondent.
Once again through application for conflict certiorari we are faced with the task of cutting the Gordian knot arising from irreconcilable differences over a final judgment of divorce with its various judicial dispositions. The case was affirmed by the Second District Court of Appeal, cited at Fla.App., 286 So.2d 286, without opinion. We have jurisdiction pursuant to Art. V, Sec. 3 (b)(3), Florida Constitution, F.S.A. After rehearing with oral argument and upon review of the record, we reverse in part and remand with directions.
Certainly, a trial judge's findings and conclusions come to us shrouded in the mantle of presumptive correctness, however, there is no absolute guarantee against a breach of this breastwork where an abuse of discretion has occurred, as has been partially demonstrated in this cause. Ellard v. Godwin, Fla.1955, 77 So.2d 617; Carolina Portland Cement Co. v. Baumgartner, 1930, 99 Fla. 987, 128 So. 241.
In acquiring jurisdiction of a case, our Court has appropriate authority to dispose of all contested issues. In the interest of justice and elimination of continuous and protracted future litigation, it appears to be proper and dutiful to exercise the right of permutation in this matter even though it may tend to be hortative to the litigants involved. Nevertheless, the perorations of a judicial tribunal's ultimate conclusion must arrive at some point of finality. Such is this case, and we can only trust that it will be the emendator to the domestic problems of these parties and also an encyclical message to others of equal parity.
The pertinent facts reveal that the wife (respondent) was initially twice married and divorced. She later married the petitioner-husband. Unfortunately this third marriage also resulted in a divorce, with the wife receiving approximately one-half of petitioner's assets.
The parties subsequently re-married. Intranquilities again occurred, resulting in the wife filing suit for this divorce in April, 1972, in which she also sought additional and further relief.
After final hearing and in open court, the trial judge announced his ultimate findings and conclusions. Thereafter, a written amended final judgment was entered on April 19, 1973, which, in essence, resulted in:
(1) A dissolution of marriage;
(2) Child custody and support for the children being awarded to the wife with reasonable and liberal visitation for the petitioner;
(3) An attorney's fee award of $1,500.00 to the wife;
(4) An award to the wife of the house jointly owned by the parties as lump sum alimony, plus $10,000.00 cash;
(5) An additional award to the wife of $500.00 per month for her support, maintenance of a home for herself and the children during their minority, with the additional proviso that 'the alimony will terminate thereafter'; and
(6) Directing petitioner to maintain life insurance during the childrens' minority to guarantee these payments.
Items (1) and (2), above, are not in dispute and therefore do not require our attention. We cannot find fault with item (3), relative to attorney's fee, and therefore this is also affirmed.
However, items (4), (5) and (6) are the onerous problems, In this case, which result in vexatious consideration and ultimately lead to a departure from reasonable judicial discretion.
In attempting to plug the facts of this case into the socket of judicial logic and impartial results, we need turn only to the cold steel facts of the case and the established law of our State.
As an example of apparent but obviously reasonable perplexity, the trial judge's open court comments stated, among other things:
The wife was earning in excess of $20,000.00 per year. While petitioner was normally earning in excess of that sum, and upon occasion earned income well in excess thereof, these extra profits of the husband were primarily derived through federal income tax shelter benefits which in normal sequence were credited to his benefit. The various properties, bonds, stocks, interest and income of the wife, together with her professional training and ability, more than amply qualified her for the characterization as a 'wheeler-dealer', as the trial judge found. Thus, under the fundamental law of this State, she is not entitled to alimony or maintenance of any nature. The wife apparently asserted a special equity claim on the home; however, the trial judge declined this thrust. In fact, that which has already been paid by the petitioner ($500.00 per month) under the 1973 judgment should more than fill her needs for 'rehabilitative purposes', as hereinafter discussed. Sub judice, indeed this case involved a pyramiding of alimony.
In Roberts v. Roberts, Fla.App.1973, 283 So.2d 396, 397, Judge Sam Spector, speaking for the majority, succinctly stated:
'In absence of evidence that the appellee cannot fulfill her own needs, there does not appear any basis for an award of alimony at this time under the new 'no fault-no responsibility' divorce law recently enacted by the state legislature.
'The public policy under the new law which the legislature passed and which therefore we must apply seems to be that if the spouse has the capacity to make her own way through the remainder of her life unassisted by the former husband, then the courts cannot require him to pay alimony other than for...
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...authority to dispose of all contested issues in a case once it has jurisdiction. See Gibbs, 340 So.2d at 1203 (citing Kennedy v. Kennedy, 303 So.2d 629 (Fla.1974). And in a few cases, appellate courts, although declining to pass on the order denying the motion to strike, have held discovery......
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