Willis v. Willis

254 So. 2d 59 | Fla. Dist. Ct. App. | 1971

Lead Opinion

MANN, Judge.

The trial judge, on petition for modification, increased the support allowance for each child from $15 per week to $20. The husband’s income had nearly doubled in the three years since the divorce, but the wife was also employed and could contribute. The order of modification recites that the wife has bought a new car and joined the country club, and that she ought to bear a part of the responsibility for supporting the children. There is a certain legislative logic in this view, but the judicial precedents which bind us forbid its application. Florida is one of the states which places the entire burden of supporting the children on the father if he has the means to support them. Accordingly, we must reverse and remand for further consideration in the light of Dworkis v. Dworkis, Fla.App.1959, 111 So.2d 70 and Fekany v. Fekany, 1935, 118 Fla. 698, 160 So. 192. See also Annot., 1 A.L.R.3d 324, 336.

We find that oral argument would serve no useful purpose and it is therefore dispensed with pursuant to F.A.R. 3.10e, 32 F.S.A.

LILES, J., concurs. PIERCE, C. J., dissents.



Rehearing

ON PETITION FOR REHEARING

MANN, Judge.

The appellee, in his petition for rehearing, contends that our opinion, if right when filed, is wrong now because Chapter 71-241, Laws of Florida, our new law relating to dissolution of marriage, provides that “In any action or proceeding in which an appeal was pending or a new trial was ordered prior to the effective date of this act, the law in effect at the time of the order sustaining the appeal or the new trial governs the appeal, the new trial, and any subsequent trial or appeal.” Ibid., § 21(3).

Were we to recede from reversal and affirm, the mandate upon our opinion would not be an “order sustaining the appeal.” Were we to persist in reversal on the grounds stated in the original opinion, our order would sustain the appeal, and we would be in error for failure to follow the legislative mandate.1 Accordingly, we sustain the appeal, reverse and remand with directions to proceed in accordance with Chapter 71-241. Thus we avoid error by sidestepping paradox.

Reversed and remanded for further proceedings in accordance with Laws of Florida, Chapter 71-241.

LILES, J., concurs. PIERCE, C. J., dissents.

. See Quine, The Ways of Paradox, c. 1 (1966).