Simpson v. Simpson
| Decision Date | 17 March 1953 |
| Citation | 63 So.2d 764 |
| Parties | SIMPSON v. SIMPSON. |
| Court | Florida Supreme Court |
Carey & Harrison, St. Petersburg, for appellant.
Bussey & Simmons, St. Petersburg, for appellee.
The principal question here presented may be stated as follows: Where the husband petitions for a reduction of the amounts allowed in a former decree for alimony and child support, is the wife entitled to suit money, including a reasonable attorney's fee, under the provisions of Section 65.16, Florida Statutes, F.S.A.? It is our opinion that Section 65.16 should be so interpreted. This is so because when the wife defends such a petition, she is, in effect, litigating to enforce that portion of the former decree which by his petition he seeks to take away from her. This court has heretofore held, in Selinsky v. Selinsky, Fla., 62 So.2d 24, 26 that the services rendered by an attorney on behalf of a wife in resisting the husband's counterclaim seeking to have the court modify its former decree by eliminating therefrom the provisions respecting alimony 'constitutes services for the purpose of enforcing the original decree or order for alimony.' Similarly, when the husband petitions for a reduction, the wife must employ an attorney to defend against his claim for a reduction, and his services are, as in the Selinsky case, 'for the purpose of enforcing the original decree or order for alimony.'
It is our opinion, then, that the word 'enforcing' in Section 65.16 should be given a broad and liberal interpretation so that the wife may be provided with suit money to defend against any attack upon a former decree made by the husband, whether such attack be for the purpose of eliminating entirely or merely reducing the amounts therein awarded for alimony and child support, since her defensive litigation is for the sole purpose of enforcing a compliance with the decree as originally entered. Any other interpretation would permit a husband to harass an indigent wife by filing multiple petitions for modification of a former decree, which she would be unable to defend unless awarded suit money by the court.
Clearly, the statute will not be applied to give suit money to a wife who attacks a former decree by applying for a modification thereof. And, in any case, the matter of attorney's fees is addressed to the sound judicial discretion of the trial court; it must be reasonable and 'as from the circumstances of the parties and the nature of the case shall be fit, equitable and just.'
The questions presented on the cross-appeal have been carefully considered, and no error has been found. See the dissenting opinion by Mr. Justice THOMAS for a full discussion of this matter.
For the reasons stated, that portion of the decree denying to the wife a reasonable amount for the services of her attorney in resisting the husband's petition for modification of the decree is reversed. That portion of the decree attacked on the cross-appeal is affirmed, for the reasons stated in the dissenting opinion by Mr. Justice THOMAS.
Affirmed in part and reversed in part.
On the main appeal the sole question presented is the propriety of the chancellor's denial of the appellant's petition for compensation of her attorneys in a postdivorce proceeding to decrease, on the former husband's petition, or increase, on the former wife's petition, the allowances for alimony and support of the parties' children. The appellant bases her position upon Chapter 25037, Laws of Florida, Acts of 1949, section 65.16, Florida Statutes 1949, and F.S.A., and our decisions in Monyak v. Monyak, Fla., 43 So.2d 903, and McNeill v. McNeill, Fla., 59 So.2d 57.
Historically, until relatively recent years there was no authority for granting suit money except upon the basis of the marriage relationship. When the parties ceased to be man and wife any such obligation died with the dissolution of the union. In Carson v. Oldfield, 99 Fla. 862, 127 So. 851, it was held that a woman divorced, remarried, and divorced again, was not entitled to alimony from the first husband to rehabilitate herself, nor to suit money, the first divorce having become absolute and the first husband's duty therefore having ceased. Such, for many years, seems to have been the established law with a deviation in Frohock v. Frohock, 117 Fla. 603, 158 So. 106, from which the court, later, in Vinson v. Vinson, 139 Fla. 146, 190 So. 454, receded.
Then came Chapter 21881, Laws of Florida, Acts of 1943, providing that a court could award suit money and attorneys' fees to a party prosecuting or defending in good faith further proceedings in respect of enforcement or modification of alimony, or other matter arising as a direct result of the divorce. This act was first held unconstitutional in Chiapetta v. Jordan, 153 Fla. 788, 16 So.2d 641, but later, on rehearing, was held constitutional.
By Chapter 22858, Laws of Florida, Acts of 1945, Chapter 21881, supra, was repealed, and in 1949 the present law, Chapter 25037, supra, was enacted. It provides:
'whenever any legal proceeding is brought for the purpose of enforcing a decree or order of the court * * * for the payment of alimony or support for children, the court may * * * allow to the divorced wife such sums of suit money, including a reasonable attorney's fee, as * * * shall be fit, equitable and just.' [Emphasis added.]
In Monyak v. Monyak, supra , the former husband sought a modification of the required alimony payments. The court ordered him to compensate the attorneys of his former wife for their services in resisting his petition. The petition was filed before, and the order was entered after, the effective date of Chapter 25037, supra. Evidently the appellant contended that no fee was allowable because the act was not effective when the petition was filed. The court was 'not impressed with the contention' so the order was affirmed....
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...a divorce decree for fraud. See McNeill v. McNeill, Fla.1952, 59 So.2d 57; Selinsky v. Selinsky, Fla.1952, 62 So.2d 24; Simpson v. Smipson, Fla.1953, 63 So.2d 764; Haynes v. Haynes, Fla.1954, 71 So.2d The chancellor, in his final decree, showed clearly his awareness of the rule when he refu......
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