Penney v. Penney
| Decision Date | 18 April 1941 |
| Citation | 146 Fla. 652,1 So.2d 883 |
| Parties | PENNEY v. PENNEY et al. |
| Court | Florida Supreme Court |
Rehearing Denied May 19, 1941.
En Banc.
Certiorari to Circuit Court, Clay County; Bayard B. Shields, Judge.
Ragland, Kurz & Layton, of Jacksonville, for petitioner.
Taylor & Carlton of Jacksonville, for respondents.
This cause is before us on petition for certiorari under Rule 34, to review and order entered by the Circuit Judge in an action for separate maintenance and for the custody of the adopted children of the parties, in which order the Circuit Judge awarded temporary support and maintenance to the plaintiff wife for herself and the two minor children, and the payment of her counsel fees and costs. The cause was submitted hare upon the petition for writ of certiorari, transcript of the proceedings in the trial court, and upon the well prepared briefs of counsel and also oral argument, all of which have been duly considered by the Court. A majority of the Court are not convinced that any reversible error or abuse of discretion on the part of the chancellor has been made to appear.
It is therefore ordered and adjudged that the petition for writ of certiorari be and the same is hereby denied.
On petition for a writ of certiorari presented under the provisions of Rule No 34, an order is sought in this Court quashing an interlocutory order dated October 26, 1940, entered by the Circuit Court of Clay County, Florida. The order complained of (a) awarded temporary alimony, suit money and counsel fees to the wife, plaintiff below; and (b) awarded the custody of two girls, 9 and 10 years of age, to the adopted mother.
The bill of complaint was filed on July 12, 1940, under Section 4988, C.G.L., and alleged that the defendant below was guilty of: (a) Habitual intemperance; (b) extreme cruelty and was guilty of habitual indulgence in a violent and ungovernable temper. That the defendant below withheld from the plaintiff the means of support from and after July 1, 1940, until July 12, 1940.
The parties intermarried on June 26, 1936, and cohabited together until April 30, 1940. The defendant below at the time of the marriage was a divorcee. On July 18, 1930, the petitioner and his first wife, Helen Neff Penney, adopted a female infant known as Virginia Elizabeth Penney; and on August 10, 1931, adopted a certain infant female known as Ann Cynthia Penney. These children lived with the petitioner from the date of adoption until the custody thereof was awarded to the respondent in this proceeding under the order here assigned as error.
The petitioner owned a large and well furnished home located in Green Cove Springs, Florida, and after marriage the respondent assumed the control and management of the home and an adoption order of the court was made to her as to the two girls. It does not appear by the record that the court considered the orders of adoption to Helen Neff Penney as entered by the Illinois and Ohio courts, and a consideration of this point is not essential to a disposition of the case at bar.
There is no evidence in the record to show that the petitioner was habitually drunk or so intemperate because of the excessive use of intoxicating liquors as would constitute a ground for divorce. See Hayes V. Hayes, 86 Fla. 350, 98 So. 66; McGill v. McGill, 19 Fla. 341. The petitioner admitted that he drank socially but not to an excess. His business associates and those employed by the corporation for which he worked corroborated his statement. The exception to this is the testimony of his wife.
The petitioner contends that the testimony adduced to establish extreme cruelty and an ungovernable temper practiced toward the respondent was legally insufficient to bring the case within Windham v. Windham, Fla., 198 So. 202, and the several cases therein cited. There is disputed and contradictory testimony in the record to sustain such a finding and on this point it has not been established that the lower court abused its discretion. The burden of showing an erroneous ruling was on the petitioner. See Stover v. Stover, 103 Fla. 284, 137 So. 249.
The petitioner shows that he furnished the respondent with a commodious and well furnished home and on July 12, 1940, at the time of filing the bill of complaint she was living in the home. The petitioner likewise was rooming or living in a different section of the same home, but the respondent failed or omitted to prepare, or cause the servants in the home to prepare, his meals. He went to the kitchen for his meals but none would be prepared, although he at the time supplied respondent with a home, automobile and four servants and he was forced to go away from home to get his meals.
The petitioner's father established a trust and from this source the respondent was paid approximately $60 each month, and in addition thereto the petitioner paid to her as household expenses for many months prior to filing suit the sum of $200 per month. She received the payment of $200 for the month of June, 1940, and on July 8, 1940, petitioner paid her $75 and paid $100 to a grocery store on an account of $189 incurred by respondent and not paid. On August 2, 1940, she was paid $103.67 and respondent had a charge account at a grocery store where groceries could be obtained by her and the costs charged to the petitioner. It is true, as disclosed by the record, that the petitioner discontinued the practice of permitting and allowing his wife to sign checks on his bank account, closed out the charge accounts at different stores and ran an ad in the paper to the effect that he would not be responsible for debts incurred by his wife. He felt that she was amply provided for and that her control or management of his household had created a large debt and he had difficulty in satisfying his creditors out of his monthly income.
The testimony shows that the petitioner's home and furnishings are worth approximately $10,000 and that the respondent is living in the home; that the stocks and bonds owned by him are worth around $11,000; his salary is $725 per month; that the home is mortgaged for the sum of $1,000 and the sum of $83,33 is used monthly to amortize the mortgage indebtedness; the sum of $100 is paid monthly to Helen Neff Penney as alimony under a decree of the court; and that after these monthly payments are made, the petitioner has net monthly the sum of approximately $550; he has an unpaid outstanding indebtedness in the sum of $9,581.75 and of this amount $8,381.75 is chargeable of living expenses incurred by the respondent in the management (or mismanagement) of petitioner's household affairs; and from his monthly salary he tried to make payments on his indebtedness and thereby satisfy his creditors.
The parties here live in the same house and four servants are hired. The petitioner provided a charge account at a grocery store where respondent could buy food and the necessities. The record shows that she bought them during the month of July, 1940, and had the same charged to him, and with four servants on the place, the petitioner here who was owner of the homestead where respondent was living, and paying around $200 per month for the support of his wife and two adopted daughters, was forced to leave his home to obtain his meals. The court below held that the petitioner withheld support from the respondent from July 1st to 12th, 1940, but at this time the respondent had a bank balance in her behalf in the sum of over $100; had a private income of approximately $60 per month, and her husband was paying her for household expenses at the rate of $200 per month.
The order challenged was entered under the provisions of Section 4988, C.G.L., viz.:
One of the serious questions appearing on this record is whether or not the testimony adduced by the respondent brings her within the provisions of Section 4988, C.G.L., supra, which provides: 'The court shall have power to grant such temporary and permanent alimony and suit money as the circumstances of the parties may render just.' This Court in numerous cases has determined the question of temporary and permanent alimony and suit money as incidental to a divorce. We have consistently held that before a court is justified in making an allowance to a wife in a divorce suit for alimony and suit money, certain essentials must be made to appear, viz.: (a) The necessity of the wife for want of means or sufficient means to maintain herself during the litigation and with which to employ counsel; (b) it must appear that the husband has the means to supply this necessity. See Shepard v. Shepard, 128 Fla. 72, 174 So. 330; Floyd v. Floyd, 91 Fla. 910, 108 So. 896; Arendall v. Arendall, 61 Fla. 496, 54 So. 957, Ann.Cas. 1913A, 662; Haddon v. Haddon, 36 Fla. 413, 18 So. 779; Sanchez v. Sanchez, 21 Fla. 346; Underwood v. Underwood, 12 Fla. 434; Phelan v. Phelan, 12 Fla. 449.
In the case of Floyd v. Floyd, supra, the question of temporary alimony was before the court under the provisions of Section 4986, C.G.L. The wife sought temporary alimony and suit money and it was shown that she was living apart from her husband...
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