Oliver v. Oliver, 73--9
Decision Date | 23 November 1973 |
Docket Number | No. 73--9,73--9 |
Citation | 285 So.2d 638 |
Parties | Bryce W. OLIVER, Appellant, v. Betty Warwick OLIVER, Appellee. |
Court | Florida District Court of Appeals |
Robert W. Lee, Orlando, for appellant.
James P. Panico and Howard J. Clifton, Maitland, for appellee.
Reframing as concerns appellant's Points 1, 5 and 6 (the remaining points are without merit), we sense the real question to be, 'does a spouse defending against a claim for alimony and attorney fees have the right to introduce evidence as to the claimant's misconduct during marriage and as to matters touching upon the equities of the claim?' We answer in the affirmative and thus reverse the judgment and remand with directions.
Backgrounding, the husband-appellant sued for dissolution of marriage and plead with specificity that the wife was habitually intemperate and frequently intoxicated in public. She frequently threatened to kill the husband and did not keep the house and contribute to the five month marriage. The wife-appellee counter-sued for alimony, fees and other relief. The final judgment dissolved the marriage and awarded the wife $30 per week for two years as alimony, plus $850 attorney fees.
The critical ruling is reflected:
'Q. Does this dissolution stem from any particular activity of your wife?
'A. Yes.
'Q. And what activity is that?
This is more a case of economics than anything else.'
Thus, the husband was not allowed to introduce any evidence as to the wife's marital conduct.
This suit was brought under the 1971 Dissolution of Marriage Statute, Chapter 61, F.S., F.S.A., Laws of 1971. We set forth the three sections we deem pertinent:
'61.001 Purpose of Chapter.--
'(1) This chapter shall be liberally construed and applied to promote its purposes.
'(2) Its purposes are:
'(a) To preserve the integrity of marriage and to safeguard meaningful family relationships;
'(b) To promote the amicable settlement of disputes that have arisen between parties to a marriage; and
'(c) To mitigate the potential harm to the spouses and their children caused by the process of legal dissolution of marriage.'
'61.052 Dissolution of marriage.--
'(1) No judgment of dissolution of marriage shall be granted unless one of the following facts appears, which shall be pleaded generally:
'(a) The marriage is irretrievably broken.'
'61.08 Alimony.-- '(1) In a proceeding for dissolution of marriage, the court may grant alimony to either party, which alimony may be rehabilitative or permanent in nature. In any award of alimony, the court may order periodic payments or payments in lump sum or both. The court may consider the adultery of a spouse and the circumstances thereof in determining whether alimony shall be awarded to such spouse and the amount of alimony, if any, to be awarded to such spouse.
'(2) In determining a proper award of alimony, the court may consider any factor necessary to do equity and justice between the parties.' (Emphasis supplied.)
Looking at these statutes, we would agree that the criteria of § 61.052, F.S.1971, F.S.A., that a marriage is irretrievably broken as concerns the dissolution may be satisfied under the encouragement and guidelines found in § 61.001. In determining whether a marriage is irretrievably broken, there is no need to resort to the often sordid and provocative testimony of fault that customarily obtained under the predecessor statute. More than that, it is our understanding that the earlier requirement of fault and the establishment of the prevailing party was the very dissatisfaction that lead to the enactment of the socalled no-fault dissolution of marriage chapter.
But what about alimony and fees? Are, as the trial judge found, the same strictures and limitations to be applied? We think not. It is our view that Section 61.08(2):
'(2) In determining a proper award of alimony, the court may consider any factor necessary to de equity and justice between the parties,'
is dispositive of the issue and correctly so. While it would be desirable to make the whole marriage dissolution procedure pleasurable and non-abrasive, such result is not possible when one considers the overriding considerations that apply in determining the amount of alimony, if any, to be awarded.
As all know, there is a wide range of discretion vested in the court in deciding how much and the kind of alimony to award and there are many factors, such as the misconduct of a party, that may properly be placed before the court touching upon the issue and which form the basis for the proper exercise of such discretion. See 10A Fla.Jur., Dissolution of Marriage,...
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