Novack v. Novack, s. 66--460

• Decision Date: 14 March 1967
• Docket Number: 66--461,Nos. 66--460,s. 66--460
• Citation: 196 So.2d 499
• Parties: Ben NOVACK, Appellant v. Bernice NOVACK, Appellee.
• Court: Florida District Court of Appeals

Page 499

196 So.2d 499

Ben NOVACK, Appellant v. Bernice NOVACK, Appellee.

Nos. 66--460, 66--461.

District Court of Appeal of Florida, Third District.

March 14, 1967.

Sibley, Giblin & Levenson, Miami Beach, for appellant.

Irving Cypen and Arnold Nevins, Miami Beach, for appellee.

Before HENDRY, C.J., and PEARSON and SWANN, JJ.

PER CURIAM.

The appellant-husband has taken separate interlocutory appeals from an order in a divorce suit granting temporary allowances to the appellee-wife and from an order which, though discharging him from a rule to show cause, directed him to fully comply with the first order by a day certain or suffer the dismissal of his complaint. These interlocutory appeals have been consolidated for appellate purposes.

Appellant's first point is directed to the fact that the order granting temporary allowances was not based on Any evidence or testimony in the record, but rather upon the chancellor's having taken judicial knowledge of the record in an altogether separate proceeding.

Both parties concede that the order granting temporary allowances was not based on evidence or testimony in the present action, but was based on judicial notice by the chancellor of testimony and evidence in a prior divorce case between the parties, which divorce case had been amicably settled and dismissed prior to the instant cause. The wife contends that this procedure was proper because the chancellor in the prior divorce suit between the parties was the same chancellor who awarded the temporary allowances herein. In addition, the wife submits that the husband has admitted that he is financially able to respond to any reasonable award of support and alimony.

The law in Florida requires that a wife in a divorce proceeding must make a record which establishes both her needs and her husband's ability to pay in order to justify the chancellor's exercise of discretion in granting temporary allowances. See Arendall v. Arendall, 61 Fla. 496, 54 So. 957 (1911); Haddon v. Haddon, 36 Fla. 413, 18 So. 779 (1895). A chancellor is not authorized to take judicial knowledge of the records in a different case pending or disposed of in the same court but outside the record of the case before that court. The reasons for such a rule are clearly enunciated by Justice Thornal in Kostecos v. Johnson, Fla.1956, 85 So.2d 594, where he stated:

'Our consideration of the record on this appeal is complicated by the fact that in entering a summary judgment for the appellee, the trial judge took judicial notice of the records in the county delinquent tax proceeding and in the drainage district foreclosure proceeding. Apparently both parties agreed to this and the trial judge recited in his judgment that he had done so. Although no error is assigned on this proposition, both parties evidently agreeing that the procedure was correct, we are constrained to point out that the trial court is not authorized to take judicial notice of the records in a different case pending or disposed of in the same court but outside the record in the case before him. See Adams v. Adams, 126 Fla. 217, 170 So. 697, and Cassels v. Ideal Farms Drainage District, 156 Fla. 152, 23 So.2d 247. The case before us illustrates the sense of the rule.

'The judgment recites that the trial judge took judicial notice of the entire contents of the records in the two delinquent tax cases. Undoubtedly he could conveniently call upon the office of the clerk of the court to bring the records before him and make them available for his examination in arriving at a judgment. Upon appeal, however, this court is not similarly situated and we are, therefore, obviously without the information contained in the two records in the Circuit Court of Sarasota County which may or may not have properly constituted the basis of the summary judgment that was entered because these records do not constitute a part of the record on appeal unless they were appropriately introduced in evidence either in the original or by certified copy and then included in the record sent to this court for consideration.'

See also Gann v. Levitt & Sons of Fla., Inc., Fla.App.1966, 193 So.2d 200.

We therefore hold that the wife did not meet the requirement that she establish her needs by evidence in the record in this cause.

Appellant's next point is directed to the fact that at the time the order granting temporary allowances was entered (April 15, 1966) an interlocutory appeal was pending in this court in which another order of the chancellor was being challenged. Inasmuch as we have already determined that reversible error was committed, we find no need to discuss this question. Parenthetically, this order was subsequently affirmed by us (188 So.2d 697) and the Supreme Court denied certiorari on January 30, 1967.

The last point raised by the appellant is that it is an abuse of discretion to award the wife any temporary allowances since she has been charged, under oath, with misconduct in voluntarily absenting herself from the marital abode of the parties to be with another man with whom she was enamoured, and in taking a large sum of cash belonging to the husband.

The complaint charged the wife with extreme cruelty, alleging, inter alia, that she had become interested in another man and spent approximately four nights each week in his company. The complaint also alleged that she had taken a large amount of cash from the husband's safety deposit box. These allegations were denied in the wife's sworn answer and counterclaim, in which she explained that she had justifiably removed certain non-negotiable papers from a safety deposit box and that she had voluntarily offered to return them to her husband.

The facts alleged herein are not similar to those relied upon by the appellant in Floyd v. Floyd, 91 Fla. 910, 108 So. 896 (1926), and it is not applicable.

Section 65.07, Florida Statutes, F.S.A., provides that if a wife defendant in any suit for divorce shall in her answer, or by petition, claim temporary alimony or suit money, and the answer or petition shall seem well-founded, the court shall allow a reasonable sum therefor.

Had the wife established a proper record of her needs, then it would not have constituted an abuse of discretion for the chancellor to have awarded a temporary cash...