428 So. 2d 298 | Fla. Dist. Ct. App. | 1983
Jay W. SMALLEY, As Guardian of the Property of Elayne Layne, Appellant,
v.
Benjamin J. LAYNE a/k/a B.J. Layne, Appellee.
District Court of Appeal of Florida, Third District.
*299 Payton & Rachlin and Harry Payton, Miami, for appellant.
Joe N. Unger, Layne & Brill and Richard Bernstein, Miami, for appellee.
Before SCHWARTZ, C.J., and NESBITT and FERGUSON, JJ.
NESBITT, Judge.
In appeal No. 82-947, the order granting the husband's cross-petition for modification and terminating his alimony obligation to the wife is reversed because of the erroneous exclusion of testimony as to the wife's claimed medical condition as well as evidence of the husband's enhanced financial abilities. Johnson v. Johnson, 386 So. 2d 14 (Fla. 5th DCA), pet. for review denied, 392 So. 2d 1375 (Fla. 1980); Carmel v. Carmel, 282 So. 2d 6 (Fla. 3d DCA), cert. denied, 288 So. 2d 257 (Fla. 1973); Sherman v. Sherman, 279 So. 2d 887 (Fla. 3d DCA), cert. denied, 282 So. 2d 877 (Fla. 1973); Adams v. Adams, 273 So. 2d 794 (Fla. 1st DCA), cert. denied, 278 So. 2d 287 (Fla. 1973).
In appeal No. 81-2578, the order dismissing the wife's petition for modification (alimony increase) and other related matters is also reversed. The wife's claims were dismissed for failure of her attorney to proceed after being ordered to do so at the hearing before the trial court. However, the attorney expressed his inability to present the wife's case in light of the husband's noncompliance with underlying discovery requests, some of which were the subject of pending motions to compel. Additionally, the discovery alleged to be wrongfully withheld was inextricably connected to the presentation by the wife of a defense to the husband's cross-petition for termination of alimony. The punishment for disregard of a court order should fit the crime, Santuoso v. McGrath & Associates, Inc., 385 So. 2d 112 (Fla. 3d DCA 1980), and the ultimate sanction of dismissal should be imposed only for flagrant and willful disobedience to order of court. El Mundo Supermarket, Inc. v. Michelsa Supermarket, Inc., 388 So. 2d 324 (Fla. 3d DCA 1980); Santuoso v. McGrath & Associates, Inc., supra. The dismissal of the wife's claims with prejudice, which would make the matters in issue res judicata, was entirely too severe a sanction to impose upon the wife for the failure of her attorney to proceed.
Reversed and remanded.
