Opinion
No. 66-734.
June 27, 1967.
Appeal from the Circuit Court, Dade County, William A. Herin, J.
Carr Warren, Miami, for appellant.
L.J. Cushman, Miami, for appellee.
Before HENDRY, C.J., and CHARLES CARROLL and SWANN, JJ.
The husband, David Moliver, appeals from a final decree of divorce entered for his wife, Sylvia Moliver, appellee.
The record shows that a temporary order was entered by the chancellor, awarding to the wife the sum of One Hundred Fifty Dollars per week and requiring the husband to pay the taxes, insurance, medical expenses and clothing costs for his wife and children. Thereafter, a second temporary order was entered which continued the order recited above in full force and effect, except that it restrained the wife from purchasing any items or incurring any further indebtedness on charge accounts or otherwise chargeable to the husband, unless the husband's written approval had been obtained. This temporary order was to continue until further order of the court.
Apparently, neither party fully complied with these orders. After a final evidentiary hearing, the court entered the final decree herein appealed.
The husband complains that the court was without jurisdiction to modify its first temporary alimony award. An order allowing temporary alimony is interlocutory in character and, like any other interlocutory order made during the progress of a cause remains within the control of the court at least until entry of the final decree. Duss v. Duss, 92 Fla. 1081, 111 So. 382 (1927). We find no error in this point.
The husband claims reversible error was committed by the entry and rendition of a final judgment against him in favor of the wife for the sum of Two Thousand Sixty-Six and 85/100 Dollars ($2,066.85). The record reflects that the husband admitted in his petition for rehearing that he was delinquent in the payments required under the orders of the court in the amount of Thirteen Hundred Twenty-Five Dollars ($1325.00). The husband asserts, however, that there was not sufficient competent evidence to establish or sustain on appeal the final judgment for Two Thousand Sixty-Six and 85/100 Dollars ($2,066.85).
The record shows testimony and exhibits submitted by the wife, claiming an amount in excess of Two Thousand Sixty-Six and 85/100 Dollars ($2,066.85) allegedly owed to her by the husband for various items which she claims she was obligated to pay. The husband testified that he had paid some of these various items, but admittedly he had not paid all of them. There was no supporting evidence to corroborate payments of many of these items and the only evidence before the chancellor was the testimony of the husband concerning their payment.
The parties were personally before the chancellor and he had an opportunity to observe their demeanor, weigh their veracity, and judge their credibility. It was in his province to believe or disbelieve the testimony of the parties concerning their uncorroborated statements in regard to the payment of many of the items involved herein.
The correctness of the amount of the judgment was brought to the attention of the chancellor a second time by the husband's petition for rehearing, at which time he again reviewed the conflicting evidence and expressly determined that the final judgment contained no duplication of any of the various items in dispute, and, for the second time, he decided that the amount of the final judgment was proper.
We find, therefore, that there was competent substantial evidence in the record to sustain the amount of the final judgment against the husband and that the husband has not clearly demonstrated reversible error in the record on appeal on this point.
The husband also contends that the chancellor abused his discretion in requiring him to pay the sum of Fifty-Five Hundred Dollars ($5500.00) to the attorney for the wife. The record reflects, however, that the husband was given credit in the amount of Fifteen Hundred Dollars ($1500.00) previously paid by the wife to her attorney, so that the total amount of the fee for which the husband is obligated is in the sum of Four Thousand Dollars ($4,000.00). There is no showing in the record that this fee is unreasonable or that the chancellor abused his discretion in awarding the same. Dworkis v. Dworkis, Fla.App. 1959, 111 So.2d 70, 72 A.L.R.2d 1189.
The appellant's other points on appeal have been considered and are found to be without merit.
The final decree herein appealed is therefore
Affirmed.
I concur in the majority decision affirming the decree, except for the two provisions of the decree which are discussed below, as to which I would modify it.
An inspection of the record leads me to conclude that the husband's attorney is correct in his contention that the evidence does not support the holding in paragraph eight of the decree that the amount of arrears of temporary alimony was $2,066.85 at the time of the final decree. On proceedings on rehearing it was conceded by the husband that he was in default in the amount of $1,413.25 as of the date of the decree. There was no evidence to the contrary, and, since the payments were made through the office of the circuit court clerk, it would appear that had the arrears been in some different amount, the fact could have been established.
The second feature upon which I question the correctness of the decree is that portion of paragraph seven which required the husband to pay certain obligations incurred by the wife, not listed in the decree, but which the record shows amounted to several thousand dollars over and above the requirements of the orders entered pendente lite. For example, the initial temporary order for support, in addition to requiring payment of $150 per week, required the husband to pay for the upkeep of the home, medical expenses and "clothing costs for the plaintiff and for the children." Within a short period after entry of that order the wife purchased and charged to the husband $2,420.22 worth of clothing. That sum, together with other items, was brought to the attention of the court by a statement of obligations of the wife which she filed at a subsequent hearing on April 27, 1965. The order entered on that hearing required the husband to pay those "obligations," and enjoined the wife "from purchasing any items or incurring any further indebtedness on charge accounts or otherwise chargeable to the defendant except with the defendant's approval to be evidenced by written memorandum." Notwithstanding that injunction, within the next year the wife incurred additional obligations, without written consent of the husband, consisting of a score of personal loans by her from a company in which members of her family were interested, in amounts ranging from a few dollars to $600, and which aggregated approximately $3,000. A reason given by her for borrowing such sums was that they were needed for support in times when the husband was late or delinquent in payment of the ordered support payments of $150 per week. The husband's attorney responded to that by contending it was incorrect for the final decree to require the husband to make good on the arrears of alimony and also to repay such loans.
In my opinion the decree should be modified to reduce the amount of the judgment against the husband for arrears of temporary alimony from $2,066.85 to $1,413.25. In addition, paragraph seven of the decree should be modified to eliminate the requirement for the husband to pay, over and above the sums or items required to be paid by orders entered pendente lite, obligations incurred by the wife after and in violation of the order of April 30, 1965, which had enjoined her from incurring such obligations without the written consent of the husband.
To the extent such loans represented money borrowed for support for a period or periods when the ordered support payments were omitted by the husband, his payment under the decree curing such delinquencies would place the wife in position to repay those particular loans. No necessity was shown for making loans for other purposes such as would justify ordering repayment thereof by the husband. The two statements filed by the wife showing obligations incurred or accrued after the pendente lite order of April 1965, in addition to listing 19 loans totaling $2,971.72, listed obligations which the husband is required to pay by paragraph seven of the final decree, consisting of $370 for medical expenses, $73 for utilities, $75 for mortgage payments. $575 for taxes, $980 for Instruction and Education, $26.17 for house repairs and $32 for insurance.