Orlowitz v. Orlowitz

• Decision Date: 01 March 1967
• Docket Number: No. 35630,35630
• Citation: 199 So.2d 97
• Parties: Beatrice S. ORLOWITZ, Petitioner, v. Ellis O. ORLOWITZ, Rrespondent.
• Court: Florida Supreme Court

Page 97

199 So.2d 97

Beatrice S. ORLOWITZ, Petitioner, v. Ellis O. ORLOWITZ, Rrespondent.

No. 35630.

Supreme Court of Florida.

March 1, 1967.

Rehearing Denied June 13, 1967.

Daniel Neal Heller, Miami, for petitioner.

John W. Prunty, Miami, for respondent.

O'CONNELL, Justice.

We have for review a decision of the District Court of Appeal, Third District, affirming a final decree granting the respondent husband a divorce, denying petitioner wife's counterclaim for separate maintenance, and allowing the wife lump sum alimony in the amount of $10,000 attorney's fees, and certain suit money. 187 So.2d 670.

The single question presented is whether the chancellor erred when he entered an order prohibiting the defendant wife 'from inquiring of the plaintiff as to any matters relating to his financial worth, income, capital assets, income tax returns or other financial data.' This order was entered in response to the husband's 'Motion for Protection,' filed by him after receiving notice of the taking of his deposition. Subsequent rulings of the chancellor imposed this prohibition for the remainder of the case.

Although entry of the subject order was assigned as error, it received only this comment by the district court:

'The extent of worth of the husband was not shown. In her answer the wife averred he was a multimillionaire. In resisting discovery as to his assets, the husband represented to the court in this suit that he was 'ready, willing and able to answer any reasonable order for costs, fees or other allowances.' See Jacobs v. Jacobs, Fla.1951, 50 So.2d 169.'

We think this comment on the assigned error amounts to a clearly implied affirmance of the chancellor's order and that it conflicts sufficiently with the decision of the District Court of Appeal, Fourth District, in Parker v. Parker, Fla.App.1966, 182 So.2d 498 to satisfy the constitutional prequisites for our jurisdiction. In that case, the fourth district court affirmed a trial court order granting a similar discovery motion, and this despite the fact that the husband had filed a written admission that he was worth five million dollars and that he was well able to satisfy the needs of the wife and children, as alleged by her. Said the court, in the Parker case,

'We must say, based upon our understanding of the Rules and the philosophy behind them, that we do not look with favor upon the husband's position in not wishing to reveal any of the details of his financial position and his effort to bridle the dependents' discovery rights by substituting his seecondary non-verifiable conclusion in lieu of primary detailed facts. The adversary and the court are entitled to the whole factual picture to the end that an independent complete understanding and evaluation may be had.'

Since the trial court possesses broad discretion, not only in the granting or refusing of a discovery motion, but also for the protection of the parties against the possible abuse of this procedure, Rule 1.310(b) F.R.C.P., 30 F.S.A., it follows that only an abuse of this discretion by the chancellor would constitute fatal error. Petitioner argues that the order in question had the effect of denying to the court any information whatever concerning the husband's ability to pay alimony and concerning other issues as well. Respondent argues that the admissions contained in his 'motion for protection' eliminated the issue of his financial ability, leaving only the question of the wife's need for determination by the court.

We agree with the petitioner that the chancellor committed reversible error in immunizing the respondent from all inquiry concerning his financial worth. It is well established that the financial ability of the parties is one of the more important elements that enter into the determination of the amount of alimony and other allowances. 24 Am.Jur.2d 'Divorce and Separation,'...