Winikoff v. Winikoff, 75--1987

• Decision Date: 09 November 1976
• Docket Number: No. 75--1987,75--1987
• Citation: 339 So.2d 262
• Parties: Sidney WINIKOFF, Appellant, v. Margarita WINIKOFF, Appellee.
• Court: Florida District Court of Appeals

Page 262

339 So.2d 262

Sidney WINIKOFF, Appellant, v. Margarita WINIKOFF, Appellee.

No. 75--1987.

District Court of Appeal of Florida, Third District.

Nov. 9, 1976.

Blackwell, Walker, Gray, Powers, Flick & Hoehl, and James E. Tribble, Miami, for appellant.

High, Stack, Davis & Lazenby, Miami, for appellee.

Before BARKDULL, C.J., and PEARSON and HENDRY, JJ.

PER CURIAM.

The appellant husband appeals from certain financial provisions of the final judgment of dissolution of marriage and supplemental orders amending the final judgment awarding attorney's fees.

The trial judge, in his final judgment of dissolution of marriage and subsequent orders, granted the following relief to the appellee wife: rehabilitative alimony of $2,000 per month for 18 months, lump sum alimony consisting of the husband's interest in the marital home and $150,000 cash, ownership of all art objects and antiques, $45,000 in attorney's fees and $880.83 in costs. The final judgment also provided that at the end of the 18 month period for the payment of rehabilitative alimony '. . . either party may petition the Court with respect to additional rehabilitative alimony . . .' Furthermore, in an order amending the final judgment, the court required the husband to continue to pay the tuition and educational benefits previously ordered by a Pennsylvania court for the education of the 22 year-old son of the appellee wife by a former marriage, who had been adopted by the appellant husband during the marriage. Another provision of the order provided that the court retain jurisdiction to see that the educational needs of the adopted son be carried out by the husband.

Appellant, in effect, asks this court to re-evaluate the evidence before the trial court concerning his ability to make the payments and to look into the propriety of the amounts of allowance provided for by the chancellor. We find, however, that we are precluded from such action by Shaw v. Shaw,334 So.2d 13 (Fla.1976). As stated in Shaw:

'It is not the function of the appellate court to substitute its judgment for that of the trial court through re-evaluation of the testimony and evidence from the record on appeal before it. The test . . . is whether the judgment of the trial court is supported by competent evidence. Subject to the appellate court's right to reject 'inherently incredible and improbable testimony or evidence,' it is not the prerogative of an appellate court, upon a de novo consideration of the record, to substitute its judgment for that of the trial court.'

We believe that the judge erred when he provided that at the end of the 18 month period for the...