Vinson v. Vinson

• Decision Date: 07 July 1939
• Citation: 190 So. 454,139 Fla. 146
• Parties: VINSON v. VINSON.
• Court: Florida Supreme Court

190 So. 454

139 Fla. 146

VINSON v. VINSON.

Florida Supreme Court, Division B.

July 7, 1939

Divorce action by Aldine Vinson against J. C. Vinson. Aldine Vinson was granted a divorce and awarded the custody of the children and permanent alimony and support money. From an order adjudging that J. C. Vinson was in arrears in alimony payments, J. C. Vinson appealed. J. C. Vinson also filed a motion to dismiss Aldine Vinson's petition for allowance by the Supreme Court of alimony pendente lite, attorneys' fees and costs incidental to the pendency of the appeal from the order.

Motion granted and petition dismissed. Appeal from Circuit Court, Hillsborough County; L. L. Parks, judge.

COUNSEL

Whitaker Brothers, of Tampa, for appellant.

Shackleford Farrior & Shannon and George T. Shannon, all of Tampa, for appellee.

OPINION

BROWN Justice.

We are here confronted with a petition by appellee, Mrs. Aldine Vinson, for allowance by this Court of alimony pendente lite, attorneys' fees and costs incidental to the pendency of an appeal from a recent Circuit Court order modifying the amount of permanent alimony allowed in a divorce decree rendered some eight years ago; also a motion by appellant, Dr. J. C. Vinson, to dismiss said petition.

An appeal was taken by Dr. Vinson from an order which adjudged that appellant was in arrears in alimony payments in the sum of $1770, which arrearage was ordered to be paid in installments, and which further provided that the amount of alimony required to be paid by the original final decree be reduced to $50 per month payable on the 8th day of each month. The order was dated April 8, 1939.

On the 21st day of July, A. D. 1931, now some eight years ago, a final decree was entered in the above captioned cause granting to this appellee a final decree of divorce from said appellant, and awarding the custody of their two children to her, and decreeing that appellant should pay to appellee as permanent alimony and support money for the minor children the sum of $200 per month for the months of July, August and September, 1931, and $250 per month thereafter. No appeal was taken from this decree.

On March 17, 1939, appellee filed in said cause a petition praying for the issuance against appellant of a rule to show cause why he should not be adjudged in contempt of court for failure to comply with the terms of said final decree in the payment of said permanent alimony. Appellant filed an answer thereto praying, among other things, for a modification of said final decree, and on April 8, 1939, the court entered an order adjudicating the amount of arrears of said permanent alimony and directing appellant to pay same in said installments set out in said order, and also modifying the final decree by reducing the monthly installments of permanent alimony to $50 per month, as above stated. On the date of said order, appellant paid to appellee the sum of $65 as provided for thereby but has not complied with said order otherwise.

In her application to this Court appellee, petitioner herein alleges that she is without any source of income other than the permanent alimony decreed her in said cause. And in addition thereto she is without assets or funds of any kind or nature with which to either maintain herself or to employ and pay counsel for their services in representing her in this Court on this appeal, whereas the appellant is an active practicing physician in the City of Tampa with a large and lucrative practice and is well able to pay such reasonable amounts as this Court may fix for alimony pendente lite attorneys' fees and costs.

To this petition, the appellant, J. C. Vinson, filed a motion to dismiss, the main ground of which is that no marital relation exists between the parties to this cause and that the said Aldine Vinson is therefore not entitled to the allowance of alimony pendente lite, attorneys' fees or costs in this Court, and that this Court is without jurisdiction to grant the same.

Without waiving his motion to dismiss appellant also has answered the petition on the merits, alleging among other things that the two sons of appellant and appellee have reached their majority and are now aged 26 and 23, respectively, denying the allegations of the petition with reference to Aldine Vinson's inability to support herself; alleges she is trained in practical nursing and has been following her profession for a long period of time, that she is living with her two sons who have good positions, and that she is one of the heirs of a certain estate which has large holdings and assets, the exact amount of which is unknown to appellant and that appellee is well able to maintain herself as well as pay her counsel fees and costs in this action. Also that although appellant is a practicing physician, his earnings from his profession have been small during these past several years and he has only been able to barely maintain himself.

Appellant also alleges that in accordance with an order entered by Hon. L. L. Parks, Judge of the Circuit Court of Hillsborough County, on May 4, 1939, he entered into a supersedeas bond payable to the said Aldine Vinson in the sum of $1500, a certified copy of which is attached to said answer, and that no further payments have been made under the order of April 8th because of the giving of said bond, which was duly approved. The condition of the bond is that if the said J. C. Vinson shall prosecute his said appeal to effect, and if the final decree of the Circuit Court shall be affirmed, 'he shall pay the amounts adjudged against him in and by said final decree, which accrue under said final decree during the pendency of this appeal, and costs.'

It appears that the marital relation between these parties was dissolved by the final decree of divorce rendered on July 1, 1931, and the main question here presented is whether or not, in view of this fact, the said Aldine Vinson is entitled to an allowance by this Court of alimony pendente lite and attorneys' fees, pending this appeal, taken by her former husband from said order of April 8, 1939, which order adjudicated the amount of permanent alimony in arrears and provided for the payment thereof in installments, and modified and reduced the monthly installments of said alimony. There is also the question of the effect of the supersedeas order and bond, filed and approved in the trial court, upon the appellee's rights to allowance of alimony pendente lite, etc., by this Court pending this appeal.

It might be observed that the final decree of divorce which was rendered in 1931, concluded with this order:

'It is further ordered, adjudged and decreed that this Court does hereby retain jurisdiction in this cause for the purpose of making such further orders herein as are necessary.'

Appellant contends that Section 4986, C.G.L. of 1927, and the decisions of this Court, base the right to alimony pendente lite and suit money, upon the existence of the marital relation. Appellant further contends that it is a fundamental principle that when a decree of divorce is entered and becomes final, and permanent alimony is therein decreed to be paid, thereafter the parties stand before the court in the same status and legal relationship as any other parties to a judgment entered for the payment of money; citing the case of Duss v. Duss, 92 Fla. 1081, 111 So. 382; and in support of the rule that the allowance of alimony pendente lite and suit money depends upon the existence, at the time, of the marital relation, citing Banks v. Banks, 42 Fla. 362, 29 So. 318; Wood v. Wood, 56 Fla. 882, 47 So. 560; Chaves v. Chaves, 79 Fla. 602, 84 So. 672; Arendall v. Arendall, 61 Fla. 496, 54 So. 957, Ann.Cas.1913A, 662. These cases support the general principle contended for.

In the brief filed in behalf of appellant, attention is called to the following excerpt from the opinion of this Court, speaking through Mr. Justice Strum, in the case of Duss v. Duss, supra [92 Fla. 1081, 111 So. 385]:

'When considering this question, it should always be borne in mind that there is a marked distinction between permanent alimony decreed upon a dissolution of the marriage relation and an allowance pendente lite of temporary alimony. In respect to the latter, the parties stand before the court in the continued relation to each other of husband and wife; but, in respect to alimony allowed and to be paid after divorce from the bonds of matrimony, they stand before the court in such a status that the legal liability of the divorced husband to pay the permanent alimony is in the nature of an obligation or duty to a stranger. See Craig v. Craig, 163 Ill. 176, 45 N.E. 153.'

This excerpt was quoted with approval in the recent case of Gaffny v. Gaffny, 129 Fla. 172, 176 So. 68.

However, the exact question we are dealing with here was not involved in the case quoted from. That case (Duss v. Duss) involved an appeal from an order of the chancellor vacating a former order which required the plaintiff to pay temporary alimony, as well as his previous order staying the further progress of the cause, relieving complainant from the payment of unpaid accrued temporary alimony, suit money and attorneys' fees provided for by a previous order and, on plaintiff's motion, dismissing the cause at the cost of the plaintiff husband, without prejudice. When the plaintiff husband filed his motion to dismiss the suit for divorce which he had filed against his wife, and the trial court granted it, that of course left the relationship of husband and wife in existence and undisturbed. Indeed, the statement in the opinion, above quoted, was not essential to the decision of the case.

However the principle thus enunciated, while subject to some qualification perhaps, is in a...