Lauderdale v. Lauderdale

• Decision Date: 30 July 1957
• Docket Number: No. 57-1,57-1
• Parties: John Thomas LAUDERDALE, Appellant, v. Myrtle LAUDERDALE, Appellee.
• Court: Florida District Court of Appeals

Page 663

96 So.2d 663

John Thomas LAUDERDALE, Appellant, v. Myrtle LAUDERDALE, Appellee.

No. 57-1.

District Court of Appeal of Florida, Third District.

July 30, 1957.

Rehearing Denied Aug. 13, and Sept. 3, 1957.

Arden E. Jensen and Jack Moore, Miami, for appellant.

Charles J. Bodner, Miami, for appellee.

CARROLL, CHAS, Chief Judge.

The appellant John Thomas Lauderdale was the defendant in his wife's suit under Section 65.09, F.S.A., for alimony unconnected with divorce. She charged him with extreme cruelty, and sought alimony, suit money and an accounting and division of property.

The husband did not contest the wife's charge of extreme cruelty, and the trial concerned only the questions relating to the provisions to be made for alimony and child support, the wife's efforts to obtain certain asserts and the allowances of attorney fees and costs.

The Chancellor's decree granted the wife separate maintenance and custody of the minor child, and gave them the right to live in the home. The Court allowed the husband also to continue living there, and required him to maintain the residence premises, and in addition ordered the husband to supply the wife with a car and to pay her $50 a week. The decree denied a claim the wife made to certain assets of the husband amounting to $3,274.72, but ruled in her favor on a check for $15,903.85, made payable to the two of them, representing proceeds of a purchase money mortgage which had been made out to them jointly. Of that, the Court ordered that the wife receive one-half, and that attorney's fees and costs be paid by the husband out of his half. A $150 temporary fee for the wife's attorney was supplemented by an allowance of $1,000 in the final decree. By a later order the court costs were charged against the husband, the Court refusing to include as costs to be paid by him certain large fees incurred to real estate and legal experts who were produced as witnesses for the wife.

The husband assigns as error: (1) the award of $50 a week for alimony and child support as being too much, (2) the awarding to the wife of half the proceeds of the jointly held mortgage, (3) the allowance of the wife's attorney fees, (4) the denial of his petition for rehearing, and (5) the charging of costs against him.

The wife cross appealed, with six assignments of error, challenging these teatures of the decree: (1) allowing the husband to continue to reside in the common dwelling, (2) that the $50 a week allowed to her was not enough, (3) that the attorney fees allowed were not enough, and (4, 5 & 6) failure to charge her expert witness fees as costs against the husband.

This appeal and cross appeal represent an example of an effort to have an appellate court review the record and evidence, and substitute its views on allowances for alimony and support, attorney's fees and costs, for those of the trial judge; in short, to retry the suit.

It is not the function of an appellate court, nor the policy or practice of this court to retry cases.

This suit was thoroughly tried in the circuit court. Over two hundred and fifty pages of testimony were taken, and thirty-four exhibits were filed. The evidence covered the activities of these parties over a long period of time. They were married in 19259 They were farmers, and he was a carpenter, and he dealt in real estate. She helped him for many years, but encountered ill health the last eight years. Now sixty years old, she has diabetes and other in 1925. They were farmers, and he was a

An experienced Chancellor assessed the evidence, and, exercising his discretion, determined and fixed the provisions for alimony and child support, and for attorney fees and costs. We refuse the request which this appeal presents to substitute our judgment for that of the Chancellor on those matters.

In providing for allowance of alimony in suits for separate maintenance, Section 65.09, F.S.A., says: '* * *; and the court shall have power to grant such temporary and permanent alimony and suit money as the circumstances of the parties may render just; * * *.'

A Chancellor's decree, made on consideration of the evidence and in exercise of his discretion, awarding alimony, suit money and costs, will not be disturbed by an appellate court unless an abuse of discretion is clearly shown, and the party complaining on appeal has the burden of demonstrating on the record such abuse of discretion. Snider v. Snider, 155 Fla. 788, 21 So.2d 546; Blue v. Blue, Fla.1953, 66 So.2d 228; and Astor v. Astor, Fla.1956, 89 So.2d 645.

'* * * The awarding of alimony and the amount thereof is a matter resting within the sound judicial discretion of the chancellor before whom the cause is pending. Rubinow v. Rubinow, Fla.1940, 40 So.2d 561. A party dissatisfied with an award of alimony must carry the burden here of showing that the lower court abused its discretion with respect thereto. Kanter v. Kanter, Fla.1949, 38 So.2d 685. * * *'. Pross v. Pross, Fla.1954, 72 So.2d 671, 672.

As to those allowances, no abuse of discretion is shown, and the assignments and cross assignments of error relating to them are ineffective. This includes the...