Wilkerson v. Wilkerson, 4740

• Decision Date: 14 October 1965
• Docket Number: No. 4740,4740
• Parties: John P. WILKERSON, Appellant, Cross-Appellee, v. Sarah M. WILKERSON, Appellee, Cross-Appellant.
• Court: Florida District Court of Appeals

Page 592

179 So.2d 592

John P. WILKERSON, Appellant, Cross-Appellee, v. Sarah M. WILKERSON, Appellee, Cross-Appellant.

No. 4740.

District Court of Appeal of Florida, Second District.

Oct. 14, 1965.

Rehearing Denied Nov. 17, 1965.

Willard Ayres, of Green, Ayres, Swigert & Cluster, Ocala and Ralph R. Quillian, Hollywood, for appellant, cross-appellee.

Alan G. Grant, Jr., Orlando and P. B. Howell, Jr., Leesburg, for appellee, cross-appellant.

SHANNON, Acting Chief Judge.

This is an appeal and cross-appeal from a final decree of divorce . The husband was the plaintiff below and the wife the defendant-counterclaimant. The chancellor found the equities to be with the husband and awarded him the divorce, along with the custody of the four minor children of the parties. From the final decree both parties have appealed. Although the husband was apparently victorious, he challenges portions of the decree and is the appellant here. The wife is also dissatisfied, and is the cross-appellant.

The proceedings in this action were commenced in July, 1961, when the husband filed suit for divorce on the grounds of extreme cruelty . Subsequently, the wife answered, denying the allegations of the complaint and in turn counterclaiming for divorce, also on the grounds of cruelty. In addition, both parties sought permanent custody of their four minor children. The husband's complaint prayed that the court would order the jointly owned property of the parties to be conveyed to him. The wife, on the other hand, asked for suit money, alimony and a property settlement, including a disposition of jointly held property. The litigation in the lower court lasted more than two years, culminating in the final decree of divorce entered December 5, 1963.

The decree contained the chancellor's findings on the issues presented. We can summarize the portions relevant to this appeal as follows:

1. That the equities were with the plaintiff, cross-defendant, John P. Wilkerson, and the material allegations in his complaint and amendment to his complaint were established.

2. That there were 204 shares of common stock in the Xerox Corporation owned in the joint names of the plaintiff and the defendant until their transfer to the plaintiff in January, 1963, as a purported property settlement to him from the defendant. Such transfer was set aside for the reason that it was made during the pendency of the suit and was void.

3. That title to all real estate and stocks taken in the name of plaintiff and defendant during the period of their marriage, previously owned by them as an estate by the entirety, would be owned jointly by them, including the 204 shares of Xerox stock.

4. That the plaintiff should account to the defendant for all stock dividends received by him on all stocks owned jointly by these parties since the date of their last separation on January 5, 1963, including the 204 shares of Xerox stock, and pay her promptly one-half thereof.

5. That with respect to the substantial property of these parties, especially the 204 shares of Xerox stock claimed to be owned solely by the plaintiff, which stock is worth approximately $70,000.00, the attorneys for the respective parties had rendered invaluable services on behalf of their respective clients, and accordingly the chancellor found that there was an implied, if not an express, agreement between these parties and their counsel to pay a reasonable attorney fee based upon the amount of time expended by the attorneys; and the chancellor found that a reasonable compensation for the attorney for the plaintiff for his services in regard to the stock was $7,500.00, to be paid from the proceeds of the sale of plaintiff's one-half of the shares thereof; and the chancellor further found that a reasonable compensation for the attorneys for the defendant for their services in connection with the stock was also $7,500.00, to be paid from the proceeds of the sale of the defendant's one-half of the shares of said stock.

6. That in addition to the above compensation allowed to the attorneys for the defendant the chancellor found the sum of $2,500.00 to be a fair, just and reasonable fee for other services to the defendant.

Based on these findings the chancellor, in his decree, ordered the following: 1) He gave a final and absolute decree of divorce to the plaintiff, John P. Wilkerson. 2) He awarded to the plaintiff the absolute and exclusive care, custody and control of the four minor children of said parties, with specific visitation rights to the wife. 3) He ordered all stocks, goods, chattels and personal property of every kind and nature whatsoever, previously owned in the joint names of the parties, to be owned by them in equal shares. 4) He ordered the plaintiff, John P. Wilkerson, to transfer, convey and deliver to the defendant equal shares of their joint property. 5) He ordered the plaintiff to pay to the wife's attorneys the sum of $2,500.00, as reasonable attorneys' fees, and to also pay all the costs of the proceedings. 6) The chancellor decreed that the attorney of record for plaintiff be granted a specific equitable lien upon the plaintiff's shares of the 204 shares of Xerox stock up to and including the sum of $7,500.00 for his services to the plaintiff.

To shed some light on the ensuing discussion, we believe it may be helpful to outline some of the circumstances surrounding this bitterly contested suit.

John and Sarah Wilkerson were married in 1950. The husband is a practicing attorney in Eustis, Florida, and the wife is a well-educated woman, holding both bachelor's and master's degrees. The parties have four minor children, whose ages on the date of the divorce decree ranged from eleven to three years. The parties separated for the first time in June, 1961, following a period of considerable acrimony between them. Shortly thereafter, in July, 1961, the husband instituted this suit for divorce and the wife counterclaimed, both alleging acts of cruelty by the other. Temporary custody of the children was awarded to the husband by the chancellor. In September, 1962, the wife returned home and an apparent reconciliation was effected, as a part of which the wife supposedly agreed to convey to the husband her share of certain property held jointly by the parties. The only property actually transferred was her share in 204 shares of Xerox stock, in exchange for a promise by the husband to forgive her for any prior misconduct . The resumption of marital relations lasted about four months, and in January, 1963, the final separation took place.

We have carefully studied the record in this case, which includes a thirteen hundred page transcript of testimony. The evidence as a whole is conflicting and irreconcilable on almost all material points. When confronted with a situation of this nature an appellate court must accord wide latitude and discretion to the chancellor, who had an opportunity to hear and evaluate all the evidence firsthand. We are impressed, however, by several aspects of this case which we feel are worthy of mention, even though they will not effect the force we intend to give the chancellor's decree.

In the first place, we do not wish to have our affirmance of any portion of the decree construed as an endorsement of the husband's charges against the wife's character. These allegations, against which a defense was almost impossible, appear to have originally been circulated in the community by the husband. Moreover, when traced down on cross-examination, all the witnesses' knowledge of the wife's alleged improprieties was shown to have come from the husband's lips. Even if these accusations were in fact well founded, the husband would not have been justified in deliberately spreading these rumors and innuendos.

Secondly, this court is amazed at the disparity between two financial statements made by the husband only four months apart. The first, given to the State Comptroller for the purpose of applying for authorization to organize a bank, shows the husband's net worth to be $224.928.30; while the second, which was offered into evidence to show his ability to support his wife, shows a net worth of only $46,839.06.

Third, we are appalled at the evidence, corroborated by others, that the husband resorted to physical violence against his wife on several occasions.

We now turn to the arguments advanced in the court by the parties . In his appeal from the decree, the husband argues four points, which we can state as follows: 1) That the chancellor abused his discretion in allowing visitation rights to the wife for fifteen days each Summer, one weekend each month, and seven days during the Christmas holidays, all on forty-eight hours' notice to the husband. 2) That the chancellor erred in taxing against the husband the wife's attorney fees as well as all costs of the proceedings. 3) That the chancellor erred in ordering the division of all personal property held jointly by the husband and wife, and in setting aside the prior transfer from the wife to the husband of her share of the Xerox stock. 4) That the chancellor erred in awarding special attorneys' fees of $7,500.00 to counsel for both parties, and in securing the payment of such fees by imposing equitable liens against the Xerox stock.

In her cross-appeal, the wife argues two points: 1) That the chancellor erred in awarding custody of the children to the husband because there was no showing that the wife was unfit. 2) That the chancellor error in finding the equities were with the husband, because any misconduct on the wife's part occurring before the temporary reconciliation in September, 1962, was condoned when the parties resumed cohabitation at that time, and the husband failed to prove any new acts of misconduct by the wife.

We will discuss these points in order, taking up those raised by the husband first.

In regard to the husband's first point, concerning visitation rights to the wife, we merely...