McRae v. McRae

• Decision Date: 08 June 1951
• Citation: 52 So.2d 908
• Parties: McRAE v. McRAE.
• Court: Florida Supreme Court

Page 908

52 So.2d 908

McRAE v. McRAE.

Supreme Court of Florida, Division B.

June 8, 1951.

R. C. Lohmeyer, Miami Beach, and J C. Howell, Atlanta, Ga., for appellant.

Mason & Vann, Miami, for appellee.

ROBERTS, Justice.

The appellant, who was plaintiff and cross-defendant in divorce proceedings in the court below, appeals from those portions of the divorce decree (1) awarding to defendant and cross-plaintiff the sum of $35 per week as alimony and support for the four minor children of the parties, together with the right to use and occupy the homestead of the parties as her residence, and (2) enjoining the appellant from disposing of his interest in the homestead and 'in any other property he may own either within this state or outside of this state' until the further order of the court. The appellant does not object to those portions of the decree granting to the appellee, as cross-plaintiff, a divorce and the custody of the children.

In his argument going to the question of the excessiveness of the award for the support of his former wife and children, the appellant does not here contend that the award is more than that which is necessary to support them; and, indeed, this contention could not be sustained. The wife has no money or property, other than a one-half interest in the homestead, which is owned jointly by the parties; she has no means of livelihood; and, in any event, she will be required to devote all her time during the next several years to the care and upbringing of her four small children, the oldest of which is only eight years of age. Under such circumstances, it cannot be said that the weekly allowance of $35--which will do little more than provide food and clothing for the appellee and the children--and the award to the appellee of the use and occupancy of the homestead, is excessive insofar as the needs of the wife are concerned.

Counsel for appellant does, however, argue earnestly and eloquently that the award is excessive insofar as the ability of the husband to pay is concerned. The appellant testified that he owns and operates a hardware store in Ojus, Florida, and that he owns other real estate in Gainesville and Jacksonville, Florida; that the total gross sales of the hardware store for the year 1949 were $17,581.09, and for the first six months of 1950, almost $6,000. He testified also, however, that his property in Gainesville and Jacksonville produces no income and is practically worthless; that his only income-producing property is the hardware store, and that it has operated at a loss for each of the eight years since it was established. The Chancellor, who heard all the evidence of the parties, was of the opinion that the appellant's testimony as to his financial worth, and particularly as to his operating the store at a loss for a period of eight years, 'just didn't add up,' and we are in entire agreement with this conclusion. The record shows that the appellant charges to the business, as salary for himself, the sum of $150 per month; and we think that the evidence and the inferences reasonably deducible therefrom are ample to show that the appellant is able to draw an equal sum for the support of his wife and children.

It is not indicated in the brief filed on behalf of appellant just what sum appellant would consider himself able to pay to support his former wife and children; but from what appears therein, and from appellant's testimony, we can only conclude that he does not consider himself able to pay anything at all to support them, from which we deduce that the appellant must be content to slough them off as wards of the state or some charitable institution. As to this, our views cannot be better expressed than in the language of Mr. Justice Terrell in Pollack v. Pollack, 159 Fla. 224, 31 So.2d 253, 254, when he said: 'Appellant fails to...