Tenny v. Tenny
| Decision Date | 01 July 1941 |
| Parties | TENNY v. TENNY. |
| Court | Florida Supreme Court |
Appeal from Circuit Court, Volusia County; George William Jackson, judge.
Ray Selden, of Daytona Beach, for appellant.
Green & West, of Daytona Beach, for appellee.
The controlling question presented to this Court for a decision on appeal from a final decree granting a divorce dated April 26, 1940 entered by the Circuit Court of Volusia County, Florida, is Was the court authorized to retain jurisdiction of the subject matter and the parties by a term of the final decree of divorce, for the purpose of entering such a further and subsequent order of decree allowing Mabel W. Tenny whatever amount which may be reasonable and just for attorney's fees which may be incurred in the future or after the date of the entry of the final decree? The record discloses that the court below decreed the payment of $250 as reasonable attorneys' fees. The first order required the payment of $100 as temporary attorneys' fees and the final decree provided for the payment of the additional sum of $150, which made the total amount of a reasonable fee in the sum of $250.
Sections 4986, 4987, 4988, and 4989, C.G.L., confer on courts of chancery the authority and power to make and enter orders or decrees requiring the payment of alimony, temporary and permanent suit money, and attorneys' fees, but no alimony shall be granted to an adulterous wife. The allowance by the court of alimony, suit money, and counsel fees rests entirely on the facts of each case, but it is fundamental and has been consistently held by this Court from territorial days that marriage must be established prior to the entry of an order requiring the payment of alimony. The citation of authorities on this point is unnecessary.
If a decree is entered dissolving the marriage, the former wife certainly has no standing in a court of chancery and there is no duty or obligation due her by the former husband under the provisions of the statutes supra and decisions of this Court. See Vinson v. Vinson, 139 Fla. 146, 190 So. 454. We have carefully examined the case of Orr v. Orr, 141 Fla. 112, 192 So. 466, cited by counsel for appellee. It is well established that the Chancellor in the exercise of his discretion has the power to retain jurisdiction for the purpose of making such future orders as may be proper affecting the custody and welfare of children of divorced parents. Courts of chancery are open at all times for the purpose of hearing complainants and making and entering orders and decrees affecting or preserving the welfare of children. That provision of the final decree wherein the court retained jurisdiction of the parties and subject matter for the purpose of making future orders affecting the interest and welfare of the minor child is proper. See Mooty v. Mooty, 131 Fla. 151, 179 So 155.
It is contended that the final decree is erroneous because it is allowed or granted a money judgment for accrued arrearages for temporary alimony previously allowed the wife and minor child and for money loaned by the wife to the husband during coverture. The answer to this contention, in part, is found in the case of Vinson v. Vinson, supra. While it is true in that case the court discussed and considered arrearages of permanent alimony, a part of the personal judgment here is for temporary alimony allowed the wife for her support and the support of their minor child while the case was progressing to final hearing. However, it was an adjudication of the claims and issues of the respective parties by a court of competent jurisdiction. See Thompson v. Thompson, 142 Fla. 643, 195 So. 571.
Property rights existing between husband and wife may be an appropriate subject of litigation in a divorce proceeding and in many instances these rights have been adjudicated incidental to divorce. See McGill v. McGill, 19 Fla. 341; Carlton v. Carlton, 78 Fla. 252, 83 So. 87; Taylor v. Taylor, 100 Fla. 1009, 130 So. 713; Meloche v. Meloche, 101 Fla. 659, 133 So. 339, 140 So. 319; Heath v. Heath, 103 Fla. 1071, 138 So. 796, 82 A.L.R. 537; Francis v. Francis, 133 Fla. 495, 182 So. 833.
The case of Fritz v. Fernandez, 45 Fla. 318, 34 So. 315, 319 was a suit in equity on the part of the wife against the estate of her deceased husband. She had loaned to him large sums of money, evidenced by notes, and a considerable amount of the property appearing in the name of the deceased husband was paid for with money loaned to the husband by the wife, and in the equity suit it was her contention that...
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