Rodney O. BELL, Appellant,
v.
LaVerne W. BELL, Appellee.
LaVerne W. BELL, Appellant,
v.
Rodney O. BELL, Appellee.
District Court of Appeal of Florida. Third District.
*64 Mason & Foster, No. Miami Beach, for Rodney O. Bell.
Simons & Simons, Miami, for Laverne W. Bell.
PEARSON, Judge.
Two appeals between these parties are now lodged in this court. They were argued separately but will be considered together. The first is an appeal from an amended final decree of divorce and is brought here by the defendant-husband. In this first appeal the plaintiff-wife has filed cross assignments of error. The second appeal brought here by the plaintiff-wife, is an interlocutory appeal from a post decretal order.
The wife's complaint for divorce charged extreme cruelty. The husband answered denying the charge and cross-claimed for divorce charging adultery. The wife's reply denied the charge contained in the cross-claim. Upon these issues the case was tried and the chancellor found for the wife upon her complaint and her husband's cross-claim. The final decree, before amendment, granted the wife: (1) a divorce, (2) alimony, (3) custody of the two minor children and support, (4) attorney's fees and (5) apportioned the property of the parties as follows:
"That the parties be and they are hereby declared to be tenants in common of the real estate owned by the parties, known and described as 90 Red Maple Drive, North Levittown, Long Island, New York, and that the same be sold as reasonably soon after date as possible and no later than six (6) months from this date, and that the net proceeds thereof be divided between the parties.
"That the home presently occupied by the Plaintiff Counter-Defendant, LaVerne W. Bell, located at 995 West 32nd Street, Hialeah, Florida, and the furnishings therein, which is presently being occupied under an Agreement for Deed, be deеded by Quit-Claim Deed to the Plaintiff Counter-Defendant, LaVerne W. Bell from the Defendant Counter-Plaintiff, Rodney O. Bell, within seven (7) days from this date, and he is hereby required to make the payments therefor which presently amount to Seventy-seven Dollars ($77.00) per month each month on the date *65 when due until said property has been fully paid for.
"That the Defendant Counter-Plaintiff, Rodney O. Bell, is hereby ordered to pay forthwith to Simons and Simons, Attorneys for Plaintiff Counter-Defendant, the sum of Five Hundred Dollars ($500.00), for counsel fees of the Plaintiff Counter-Defendant herein.
"That the Defendant Counter-Plaintiff is hereby ordered to pay forthwith to the Plaintiff Counter-Defendant the sum of ____ Dollars ($247.64) as her costs incurred in the prosecution and defense of the above styled suit.
"That the Defendant Counter-Plaintiff, Rodney O. Bell, is hereby required to continue in full force and effect those insurance policies he presently holds, and to make the necessary payments therefor, with the Prudential Life Insurance Company in the sum of Fifteen thousand Dollars ($15,000.00) including health and accident insurance therein, and the insurance with Veterans Administration United States Government in the face amount of Ten Thousand Dollars ($10,000.00) and with the Travelers Insurance Company in the face amount of Ten Thousand Dollars ($10,000.00), and the beneficiaries therein shall remain as stated in the insurance company's records as of September 13, 1957."
The husband filed, on March 4, 1958 his "Motiоn to Vacate Final Decree, Etc." and without further testimony the chancellor, after argument, entered an amended final decree, which granted the wife: (1) a divorce, (2) reduced her alimony from $150 per month to $75, (3) custody of the two minor children and support, (4) increased the amount of attorney's fees allowed the wife from $500 to $600, and (5) changed the disposition of the property of the parties as follows:
"That the home presently occupied by the Plaintiff Counter-Defendant, LaVerne W. Bell, Located at 995 West 32nd Street, Hialeah, Florida and the furnishings therein, which is presently being occupied under the Agreement for Deed, be deeded by proper instrument to the Plaintiff for the use and benefit of the minor children. Said instrument to provide that upon Plaintiff's remarriage or death, said property to pass in fee simple to said minor children. The defendant is hereby required to make the payments for said homestead, which presently amounts to $77 (Seventy-Seven Dollars) per month. Said pаyments to be considered alimony and to terminate upon Plaintiff's remarriage or death."
The husband as appellant urges: (1) that the evidence is insufficient to support the wife's decree of divorce; (2) that the chancellor abused his discretion in granting the wife custody of the two minor children of the parties, permanent alimоny, court costs, one half of the proceeds from the forced sale of the parties' New York home, permanent mortgage payments on the home, insurance benefits, and counsel fees, and (3) that the chancellor ought to have granted him a divorce on the ground of adultery.
The chancellor in his amended final decree, as in his first decree, declared that the parties became tenants in common of the real estate owned by them in New York. This declaration, if the property were located in Florida, is in accord with section 689.15 Fla. Stat., F.S.A., which provides that where a husband and wife own property, real or personal, as an estate by the entirety, and a divorce is granted, they thereupon become tenants in common. See also Strauss v. Strauss,
We are not unmindful of the fact, as above indicated, that § 689.15, supra, is applicable only to real property situated in the State of Florida. New York has no statute similar to ours, but its highest court's ruling, on the effect of a divorce on property held as a tenancy by the entirety by the divorced parties, gives the same ultimate result as our statute. It was thus held in the case of Steltz v. Shreck,
Although the case of Schnitzer v. Schnitzer, Fla. 1949,
Notwithstanding the sound ruling of the Schnitzer case, the property involved is held by the parties as a tenancy in common, and since no support obligation was attached to the property, no lump sum alimony payment was to be derived from the sale of the property, and no special equities existed in the property, the chancellor erred in ordering the parties to sell the property.
Upon all of the remaining provisions of the amended final decree, upon which the husband has assigned error, the record reveals that the matters complained of were patiently tried by the chancellor. Therе is sufficient evidence, in the conflicting testimony he heard, to support each finding made.
The wife as cross-appellant from the amended final decree urges that the chancellor had no jurisdiction to enter the amended final decree, because there was no change in circumstances from the entry of the final decree. She also urges under an appropriate assignment of error, that the award of $600 as attorney's fee to her attorney is grossly inadequate. Because it has not been demonstrated that the chancellor abused his discretion in determining the amount of attorney's fee, we will not disturb his award.
A more substantial questiоn is presented by the wife's contention that the chancellor erred in altering materially the amount of the allowance of alimony and in changing the disposition of the home of the parties. She contends the chancellor *67 lacked the jurisdiction to make the aforesaid changes because the "motion to vаcate final decree, etc." is in essence merely a petition for rehearing, and that although such a petition is available for the purpose of asserting newly discovered evidence (McArthur v. McArthur, Fla. 1957,
We turn now to a consideration of the assignments of error directed to the post decretal order by the wife as appellant. Subsequent to the amended final decree the husband became delinquent in alimony payments and failed to pay the attorney's fee awardеd the wife. The wife filed a petition for an order to show cause why the husband should not be held in contempt. In response the husband filed a like petition alleging that the wife had removed the children from the state and was residing in California. The chancellor then entered an order as follows:
"This matter came before me on this Court's request for an informal conference with counsel for the respective parties. Counsel for both parties were personally present. The Court was advised that the Defendant complains that Plaintiff has disappeared from this jurisdiction, taking the parties' two children with her, for a period exceeding four months. The Court also learned that Defendant's counsel was holding Plaintiff's alimony checks for the aforesaid period pending Plaintiff's return and the right of Defendant to visit his children being available.
"Plaintiff's counsel complained that the Defendant had not filed a $10,000.00 supersedeas bond as heretofore ordered. He also advised that he felt thеre was no relation between the visitation rights of Defendant and Defendant's failure to pay alimony. He also complained of Defendant's failure to pay Plaintiff's attorney's fees.
"Defense counsel advised that said attorney's fees would be paid by installments, in accordance with this Court's previous oral expression, аnd said sum would be paid in full prior to oral argument in the District Court of Appeal, where an appeal of this case is now pending.
"The Court is of the opinion that the Defendant's right to visit with his children cannot arbitrarily be denied him by the Plaintiff in removing the children to the State of California.
"Therefore, it is by the Court Ordered, as follows:
"1. That the $10,000.00 supersedeas bond entered by this Court on June 26th, 1958 be and the same is hereby cancelled and vacated.
"2. That Counsel for the Defendant is instructed to continue to hold Plaintiff's alimony payments until further Order of this Court.
"3. That the parties present themselves personally before this Court on September 18, 1958 at 11:45 a.m., together with their counsel for the purpose of explaining to this Court their pаst actions in the premises."
*68 The husband and his attorney appeared but only the wife's attorney appeared on her behalf. No record is presented of the proceedings at this hearing on September 18, 1958. At its conclusion the chancellor found the wife in contempt of court, and entered the following order:
"1. That the Plaintiff be, and she is hereby held in contempt of Court and her previously Ordered $75.00 monthly alimony payments are cancelled and vacated beginning May 1, 1958, and continuing month to month thereafter until further order of this Court.
"2. That the Parties' marital home, located at 995 West 32nd Street, Hialeah, Florida be sold with all convenient speed; that the funds dеrived from said sale be deposited in a suitable Savings Bank for the benefit of said children, until further Order of the Court; that both Parties are commanded to execute all necessary papers to facilitate the sale of said home and deposit of said funds; and, that the Court reserves its decision concerning reimbursement of mоrtgage payments to Defendant for installment made from May 1958 until said home is sold."
It is immediately apparent that the portion of the foregoing order which adjudged the plaintiff-wife in contempt cannot be sustained. The defendant suggests that the order held the plaintiff in contempt because of her denial of reasonable visitation rights to the father. If visitation privileges are denied the father by the mother by her arbitrary or capricious conduct, then the same can or may be adjudicated in a contempt proceeding. Lee v. Lee, Fla. 1950,
We hold that the chancellor properly changed the provision of his amended final decree relating to the property in this state which the decree had set aside as a home for the mother and children. Inasmuch as the order recites that the modification is based upon conditions brought about by the former wife's change of residence and there is nothing in the record to show otherwise, we will not presume, as appellant urges, that the modification was a part of her "punishment" for leaving this state.
In the light of the conclusions reached, it is necessary for us to reverse that portion of the amended final decree which ordеred the sale of such a portion of the property of the parties as was not necessary to carry out the terms of the divorce decree, that is, the property described in paragraph numbered "9" thereof as "90 Red Maple Drive North, Levittown, Long Island, New York." Further that portion of the court's post decrеtal order, dated September 19, 1958 and recorded in Chancery Order Book 1355 at page 380 et seq., which adjudges the plaintiff, LaVerne W. Bell, in contempt, is reversed, and paragraph numbered "1" of said order is cancelled both as to the adjudication of contempt and as to the provision which purported to cancel and vacate the monthly alimony previously decreed. In all other *69 respects the amended final decree and the order of September 19, 1958 are affirmed.
Affirmed in part and reversed in part.
CARROLL, CHAS., C.J., and HORTON, J., concur.