Phinney v. Phinney
| Decision Date | 09 June 1919 |
| Citation | 82 So. 357,77 Fla. 850 |
| Parties | PHINNEY v. PHINNEY |
| Court | Florida Supreme Court |
Appeal from Circuit Court, Duval County; Daniel A. Simmons, Judge.
Suit for divorce by Ernest G. Phinney against Willie Pearl Phinney. Decree for complainant awarding permanent alimony to defendant, and defendant appeals, and plaintiff filed cross-assignments of error. Decree granting the divorce affirmed, and so much thereof as required complainant to pay permanent alimony reversed.
Syllabus by the Court
Where the testimony is conflicting, but there is ample evidence to support the finding of the chancellor, the decree will not be reversed on the evidence.
Under the statutes of this state, permanent alimony cannot be awarded to the former wife in a suit by the husband, where the divorce is granted for the fault of the wife.
COUNSEL Myers & Myers, of Tallahassee, and W. M. Toomer of Jacksonville, for appellant.
Cromwell Gibbons, of Jacksonville, for appellee.
In a suit for divorce brought by the husband on the grounds of extreme cruelty to complainant, and habitual indulgence in violent and ungovernable temper, a final decree was entered by the chancellor, who found the equities to be with the complainant and granted the divorce. The decree further ordered the complainant to pay his former wife the sum of $100 a month as permanent alimony. An appeal from this decree was taken by the wife, and cross-assignments of error filed by the husband as to so much of the final decree as awarded permanent alimony to the defendant.
There is some conflict in the testimony, which is quite voluminous, but there is ample evidence to support the decree of the chancellor, both as to the jurisdictional matter of the domicile of the complainant, and of the allegations of the bill charging the wife with extreme cruelty to complainant and habitual indulgence in violent and ungovernable temper.
It is a well-settled rule of this court that where the testimony is conflicting, but there is ample evidence to support the finding of the chancellor, the decree will not be reversed on the evidence. Sheppard v. Crowley, 61 Fla. 735, 55 So. 841; Alles v. Diaz, 62 Fla. 421, 57 So. 614; Gillett v. Beachman, 63 Fla. 438, 57 So. 615; Millinor v. Thornhill, 63 Fla. 531, 58 So. 34; Tampa Water Works Co. v. City of Tampa, 83 South ----, decided at this term of the court.
The right of the former wife to be awarded permanent alimony after divorce granted the husband for her fault is a matter of law, and the question is brought here for review by the cross-appeal of the complainant.
The statute of Florida governing the granting of permanent alimony upon decrees of divorce is as follows:
'In every decree of divorce in a suit by the wife, the court shall make such orders touching the maintenance, alimony and suit money of the wife, or any allowance to be made to her, and if any, the security to be given for the same, as from the circumstances of the parties and nature of the case may be fit, equitable and just; but no alimony shall be granted to an adulterous wife.' Section 1932, General Statutes of Florida 1906, Compiled Laws 1914.
This restricts the granting of alimony upon a decree of divorce to cases in which the suit is brought by the wife. The legislative intention thus set out is in accord with sound principles of justice.
Harris v. Harris, 31 Grat. (Va.) 13.
The authorities are not in full accord on this question, although in most of the states where permanent alimony is granted the former wife in a suit brought by the husband, and decree of divorce rendered against her, there are statutes expressly permitting it, or from which the right to so award alimony may be reasonably implied. The Supreme Court of Colorado holds that----
'Without the aid of statute a court of equity will generally decree that the wife as well as the children shall be provided with the necessities of life out of the husband and father's estate, as far as possible, unless her misconduct has been very gross; and the fact that the divorce was granted for her fault certainly will not deprive her of all relief, where she is still deemed worthy to be intrusted with the custody of the children.' Luthe v. Luthe, 12 Colo. 421, 21 P. 467.
California holds to the opposite view that--
'When the court grants a divorce to the husband on account of the offense of the wife, it...
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Baker v. Baker
...no alimony can be awarded under the statutes of this state. This contention is predicated on the holding of this court in Phinney v. Phinney, 77 Fla. 850, 82 So. 357. The holding of this court in the Phinney Case is on section 3195, Revised General Statutes of Florida, which is as follows: ......
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Krieger v. Krieger, CC--64
...question before us it is necessary to examine those cases which construed the predecessor statutes of Section 61.08. In Phinney v. Phinney, 77 Fla. 850, 82 So. 357 (1919), the court held, in construing the effect of Section 1932, General Statutes, 1906, Compiled Laws 1914, 3 that permanent ......
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Mooty v. Mooty
... ... Baker, 94 Fla ... 1001, text 1006, 1007, 114 So. 661, 664, this court said: ... 'The ... holding of this court in the Phinney Case [ Phinney v ... Phinney, 77 Fla. 850, 82 So. 357] is based on section ... 3195, Revised General Statutes of Florida, which is as ... ...
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Stern v. Stern
...money or maintainence, or other relief under its provisions. Cowan v. Cowan, 147 Fla. 473, 2 So.2d 869, overrulling Phinney v. Phinney, 77 Fla. 850, 82 So. 357; Brunner v. Brunner, 159 Fla. 762, 32 So.2d There would seem to be no question that where subsequent to the entry of a decree provi......