Rogoff v. Rogoff, 59-232

• Decision Date: 09 November 1959
• Docket Number: No. 59-232,59-232
• Citation: Rogoff v. Rogoff, 115 So.2d 456 (Fla. App. 1959)
• Parties: George ROGOFF, Appellant, v. Estelle ROGOFF, Appellee.
• Court: Florida District Court of Appeals

Page 456

115 So.2d 456

George ROGOFF, Appellant, v. Estelle ROGOFF, Appellee.

No. 59-232.

District Court of Appeal of Florida, Third District.

Nov. 9, 1959.

Albion & Greenfield, Miami, for appellant.

Robert L. Koeppel, Miami, for appellee.

CARROLL, CHAS, Judge.

The appellant George Rogoff, who was the defendant in a suit for divorce filed by his wife in the circuit court in Dade County, has appealed from a final decree which (1) granted a divorce to the plaintiff wife on the ground of extreme cruelty, (2) awarded her custody of the minor child of the parties and made provision for visitation of the child by the father, (3) required him to pay $75 per week for 'alimony and support of the minor child,' (4) allowed the wife to occupy the home, and (5) found that the cash, securities and other property given to the wife by her relatives should remain her separate property. The wife cross-assigned as error the court's refusal to allow her 'temporary and permanent' attorney fees.

The provisions of the decree as to the divorce, custody of the child and visitation are not questioned, but appellant challenges the allowance of alimony and child support, and the ruling as to the wife's property.

Based on appropriate assignments of error the appellant argues three points. First, he contends that the court was in error in making an undivided award for alimony and child support. Where this question has been raised it has been held that such an award is not void, but that either party should be at liberty to apply to the trial court at any time for allocation of the separate amounts intended for alimony and for child support. Bezanilla v. Beznilla, Fla.1953, 65 So.2d 754, 756; Zalka v. Zalka, Fla.1958, 100 So.2d 157, 159-160; Katiba v. Katiba, Fla.App.1959, 110 So.2d 693. Such division of the award may become important on later petitions to modify the allowance. This may be because of a change of financial status of the husband, or upon change of status of the former wife, such as by her becoming employed, or on remarriage or her death; or a change as to the child--by employment, marriage in the case of a daughter, death or attainment of majority. Here, however, the appellant argues that there is a present need for allocation of separate amounts to alimony and to child support, because of the benefit to him for income tax purposes. That would appear to be sufficient consideration for present separation of the amounts to the two subjects for which a combined sum was awarded. Appellant points out that he made application for such relief to the court by petition for rehearing following the entry of the decree, and that he has assigned error for failure of the court to grant that ground of his petition. We hold that the decree presently should be modified to that extent.

Appellant's second point presents an earnest contention on his part that the amount which the court allowed for alimony and child support was excessive, and beyond his ability to pay. The appellant who is a chiropractor, points to the evidence of his income as disclosed by certain recent income tax returns, in the filing of which his wife joined with him. As indicated thereby, appellant claims that his net income for the past three years was approximately $5,000 per year. The chancellor does not appear to have been satisfied from that evidence that appellant's net income was so restricted. Appellant's annual gross income during that time was around $13,000. Before their separation the appellant furnished his wife with $100 per week. Out of that she paid the monthly mortgage payment on the house amounting to $76.50, the housekeeping expenses, gasoline for the automobile she used and other personal expenses for herself and the child. Also, there was evidence that the wife returned to the husband $20 to $25 a week out of the amount she received. While the evidence regarding the needs of the wife and the child was meager, it appeared in the argument of the case that in claiming excessiveness of the award the appellant was not contending that the amount was more than the needs of the wife and the child called...