Phifer v. Phifer
| Decision Date | 02 May 1936 |
| Citation | 124 Fla. 223,168 So. 9 |
| Parties | PHIFER v. PHIFER. |
| Court | Florida Supreme Court |
En Banc.
Suit by Jeanette J. Phifer against Vannie L. Phifer. Decree for defendant, plaintiff appealed and filed a motion for an allowance, and defendant filed a motion to dismiss the appeal as frivolous.
Decree affirmed on motion to quash appeal as frivolous. Appeal from Circuit Court, Duval County; Miles W. Lewis Judge.
Mahon & Safer, of Jacksonville, for appellant.
Fred M Burns and Lee M. Booth, both of Jacksonville, for appellee.
This was a suit started by the petitioner, Jeanette J. Phifer, in the Duval county circuit court for divorce, custody of three minor children of the parties, temporary and permanent support, and counsel fees. The special master, who has since become one of the circuit judges of Duval county after a hearing had on the faculties of the parties, found that petitioner was entitled to $150 per month as temporary allowance for support and $150 for temporary counsel fees. Upon final hearing the chancellor entered a final decree dismissing the bill of complaint, from which final decree the petitioner has taken and filed her appeal to this court. The final decree appealed from reached the same conclusion as that recommended by the master in favor of the respondent husband, but was predicated upon additional and supplemental testimony taken before the chancellor prior to the rendition of such final decree.
The case is now before this court upon a petition by the appellant wife for allowance of temporary support and maintenance of herself and her three minor children, as well as additional solicitor's fees for her solicitors, and in this connection a full hearing has been had upon the merits of the case, in view of the motion to dismiss the appeal as frivolous which was filed by the appellee as part of his response to the application of the appellant for relief in this court pendente lite.
It is undoubtedly within the power and jurisdiction of the Supreme Court to order the husband of an appellant wife to pay alimony, support, and maintenance money, as well as solicitor's fees, where a final decree of divorce granted against the wife has been duly appealed, Prine v. Prine, 36 Fla. 676, 18 So. 781, 34 L.R.A. 87; Duss v. Duss, 92 Fla. 1081, 111 So. 382, but the petition in such cases must be well founded. Floyd v. Floyd, 91 Fla. 910, 108 So. 896.
But it is an equally well accepted rule that after a final decree denying a divorce has been rendered against the wife as plaintiff, and she thereupon appeals from such decree, that the burden is cast upon the appellant wife, when seeking alimony, suit money, and support money allowances in the appellate court pending the determination of the appeal, to make it appear that she is acting in good faith and has reasonable grounds to believe that the appeal will be successful and that she is probably entitled to have a divorce granted to her in the proceeding she has unsuccessfully...
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...faith. Boyer v. Boyer, 588 So.2d 615 (Fla. 5th DCA 1991); Miller v. Miller, 586 So.2d 1315 (Fla. 5th DCA 1991), citing, Phifer v. Phifer, 124 Fla. 223, 168 So. 9 (1936); Troeger v. Troeger, 127 Fla. 53, 172 So. 473 (1937). Cf. Dresser v. Dresser, 350 So.2d 1152 (Fla. 1st DCA 1977). See also......
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...Ala. 277, 147 So.2d 828; Jones v. Jones (1960), 67 N.M. 415, 356 P.2d 231; Bryant v. Bryant (N.D.1960), 102 N.W.2d 800; Phifer v. Phifer (1936), 124 Fla. 223, 168 So. 9. See, generally, Annotation, 18 A.L.R. 1494, 1505; Annotation, 136 A.L.R. Where an appellate court has concurrent jurisdic......
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