Whitehead v. Whitehead

• Decision Date: 11 August 1966
• Docket Number: No. H--161,H--161
• Citation: Whitehead v. Whitehead, 189 So.2d 397 (Fla. App. 1966)
• Parties: Robert C. WHITEHEAD, Jr., Appellant, v. Kathleen Jean WHITEHEAD, Appellee.
• Court: Florida District Court of Appeals

Page 397

189 So.2d 397

Robert C. WHITEHEAD, Jr., Appellant, v. Kathleen Jean WHITEHEAD, Appellee.

No. H--161.

District Court of Appeal of Florida, First District.

Aug. 11, 1966.

Marion R. Shepard, of Mathews, Osborne & Ehrlich, Jacksonville, for appellant.

Lawrence D. Fay and Gary B. Tullis, of Glickstein, Crenshaw, Glickstein & Hulsey, Jacksonville, for appellee.

WIGGINTON, Acting Chief Judge.

Defendant husband has appealed a final decree awarding a divorce to his plaintiff wife together with permanent alimony in the sum of $610.00 a month. By his sole point on appeal appellant charges that the chancellor misconceived the legal effect of the evidence and applied to it an incorrect principle of law by awarding appellee permanent alimony, for which error he contends the decree should be reversed.

The facts are relatively brief, simple, and free from controversy. Appellee, a young lady 21 years of age, had casually known appellant, a mature man of 41 years, for some period of time prior to their first date. She first associated with appellant on a social basis only ten days or two weeks prior to their marriage, and was in his company on only a few occasions prior to their wedding day. On August 10, 1965, they flew by air transport from Jacksonville to Las Vegas where they were married; they traveled to Miami on August 11, returning to their home in Jacksonville on August 12. On August 13 they spent the evening at home, and very early in the morning of August 14 appellant awoke appellee and advised her that he no longer wished to remain married to her. His reasons for reaching this decision are material only to appellee's entitlement to a divorce, but not to her right to alimony, so a detailed discussion thereof will be omitted. Although appellee attempted to persuade appellant to give their marriage a chance to succeed, he adamantly refused to do so. The parties separated on August 14 after less than a four-day marriage, and appellee returned to the home of her parents where she had lived prior to marriage and where she continued to live during the period of separation from appellant. The total elapsed time between date of marriage and date of divorce was two months and eight days.

Appellee's education consisted of high school training and two years of college. Following her college studies appellee secured employment in a commercial bank where she worked for approximately six or seven months and earned a monthly salary of from $260.00 to $275.00. Appellee voluntarily terminated that employment and accepted a position with a gas company where she worked for a period of some two or three months at a salary of $300.00 a month. Appellee likewise voluntarily severed her relationship with this last employer and thereafter enrolled in a secretarial school for the purpose of receiving training as a legal secretary or court reporter. She was attending this school at the time she met and married appellant.

During the trial before the chancellor appellee testified that she was without funds, property, or income and had not been employed since the date of her separation. Although living at home with her parents and incurring no living expenses incident thereto, appellee testified that her monthly needs required an expenditure of approximately $610.00. At the time of trial appellee professed to be in good health, and medical examinations revealed that no child would be born of the marriage.

The testimony adduced by the parties was sufficient to support the finding by the chancellor that appellee wife had established a need for alimony, and that appellant's financial circumstances were sufficient to meet that need. In the interest of brevity we will refrain from making a detailed statement of the evidence bearing on these two aspects of the case. In announcing at the conclusion of the trial that a decree would be rendered granting appellee a divorce together with permanent alimony, the court stated:

'I conceive the law to be that by entering into a marriage relation, the husband becomes liable for alimony if a need for alimony is demonstrated. The plaintiff wife in this case is not employed. The fact that she is able to be employed is for practical purposes immaterial. * * * So, for practical purposes, the ability to earn money of the wife is not material. The criterion is, is she earning money, and she is not, but I'll be happy to hear from you if you conceive the law to be to the contrary.'

By his final decree appealed the chancellor made the following finding:

'The parties lived together only four days after their marriage. Nevertheless, under the law, the plaintiff is entitled to alimony from the defendant if she demonstrates a need therefor. The plaintiff has demonstrated a need therefor, in that she is not employed and has no income. In the event the plaintiff should subsequently become employed, on proper application the court may reduce the amount of or eliminate payments depending upon the correlation between the needs of the plaintiff and her earnings.'

Based upon the foregoing finding the chancellor ordered appellant to pay appellee as permanent alimony for her support the sum of $610.00 each month thereafter.

In the case of Ray v. Ray, ¹ a 64-year-old man also married a woman twenty years his junior. They lived together as husband and wife for a period of only five or six days. During the period of their marriage, and prior to separation, sufficient events transpired which made it apparent that the marriage was a mistake and could not last. After separation the wife filed a complaint praying for a divorce and an award of permanent alimony in addition to the undivided one-half interest in real estate conveyed to her by her husband immediately after their marriage. In affirming the decree of the chancellor denying the wife any award of alimony under the circumstances, the Supreme Court said:

'Counsel for appellee by cross assignment contends that the Chancellor below erred in failing to award the wife alimony. We are not impressed with the contention. The wife lived with her husband, as shown by the record, some five or six days and acquired a deed to a one-half interest in the husband's property, being his lifetime accumulations. It is true that the husband administered to her a 'shellacking' prior to the separation, but the property acquired by her in the marriage adventure will help heal her wounds and thereby assist in a prompt recovery from the alleged indignities sustained. The claims for alimony and attorney fees in this Court are denied and the decree entered below affirmed.'

In the case of Golembeski v. Golembeski ² a 66-year-old man also married a woman twenty years his junior. After living together for a period of only eight or nine months the husband brought an action for divorce on the grounds of extreme cruelty. The wife denied the allegations of cruelty and prayed for a decree of permanent alimony. In affirming the final decree based upon the special master's report which recommended that no alimony be awarded the wife, the Supreme Court summarized the facts in the case as follows:

'With reference to alimony, it appears from the record that the parties lived together between 8 and 9 months; the appellee owned an orange grove worth between fifty and seventy-five thousand dollars at the time of the marriage; the wife contributed absolutely nothing toward the acquisition of this orange grove; the wife is an able-bodied woman, capable of earning her own living; prior to her marriage she had experience in...