JAY W. SMALLEY, AS GUARDIAN OF THE PROPERTY OF ELAYNE LAYNE, APPELLANT,
v.
BENJAMIN J. LAYNE A/K/A B.J. LAYNE, APPELLEE
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This case involves two appeals concerning alimony modification. The appellate court reversed the termination of alimony and the dismissal of the wife's petition for modification, finding that the trial court erred in excluding relevant evidence and imposing an overly severe sanction of dismissal.
The court held that the exclusion of evidence regarding the wife's medical condition and the husband's financial abilities was erroneous. The court also held that dismissing the wife's petition with prejudice was an excessively severe sanction for her attorney's failure to proceed.
[1] A trial court errs in excluding testimony regarding a party's claimed medical condition when considering a modification of alimony.
[2] A trial court errs in excluding evidence of a party's enhanced financial abilities when considering a modification of alimony.
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Join FLexlaw to unlock all legal intelligence“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.”
Establishes the reversal of the alimony termination due to excluded evidence.
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Join FLexlaw to unlock all legal intelligenceIn one appeal, the trial court excluded testimony regarding the wife's medical condition and the husband's increased financial abilities when terminat…
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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.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
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McMILLIAN v. State, 506 So. 2d 1171 (Fla. 3d DCA 1987)…by the rules and prior order of court. Notwithstanding the often-expressed view of this court, to which we adhere, that such a remedy is not lightly to be invoked or approved, Velazquez v. Gaitan, 499 So. 2d 66 (Fla. 3d DCA 1986); Smalley v. Layne, 428 So. 2d 298 (Fla. 3d DCA 1983); Summit Chase Condominium Ass’n v. Protean Investors, Inc., 421 So. 2d 562 (Fla. 3d DCA 1982); see Wallraff v. T.G.I. Friday’s, Inc., 490 So. 2d 50 (Fla.1986), we cannot interfere with the trial court’s discretionary determination…
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Allendorfer v. Wood, 449 So. 2d 1312 (Fla. 5th DCA 1984)…which is dismissal of the action. Fla.R.Civ.P. 1.380(b)(2)(C); Johnson; Ramos v. Sanchez, 375 So. 2d 51 (Fla.2d DCA 1979). However, it is a general principle that the punishment for disregard of a court order should fit the crime. Smalley v. Layne, 428 So. 2d 298 (Fla.3d DCA 1983); Santuoso v. McGrath & Associates, Inc., 385 So. 2d 112 (Fla.3d DCA 1980). The dismissal of a cause of action is a drastic remedy which should be used only in extreme situations. Lifeguard Corp. v. U.S. Home Corp., 429 So. 2d 94 (F…
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Weissman v. CHUBB & SON, Inc., 444 So. 2d 1175 (Fla. 4th DCA 1984)…upports the proposition that dismissal as a sanction should be imposed only for wilfull disobedience of a court’s order or in other similarly extreme situations. Lifeguard Corp. v. U.S. Home Corp., 429 So. 2d 94 (Fla. 2d DCA 1983); Smalley v. Layne, 428 So. 2d 298 (Fla. 3d DCA 1983); Johnson v. Landmark Nat. Bank, 415 So. 2d 161 (Fla. 4th DCA 1982). Cf. State v. Alfonso, 433 So. 2d 1357 (Fla. 4th DCA 1983). While conceding that the evidence does not demonstrate any wilfullness on the part of appellant’s coun…
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited (11 total)
- Santuoso v. McGRATH & Assocs., Inc., 385 So. 2d 112 (Fla. 3d DCA 1980)
- Carmel v. Carmel, 282 So. 2d 6 (Fla. 3d DCA 1973)
- Johnson v. Johnson, 386 So. 2d 14 (Fla. 5th DCA 1980)
- Sherman v. Sherman, 279 So. 2d 887 (Fla. 3d DCA 1973)
- Adams v. Adams, 273 So. 2d 794 (Fla. 1st DCA 1973)
- Cary v. State, 288 So. 2d 257 (Fla. 1973)
- EL Mundo Supermarket, Inc. v. Michelsa Supermarket, Inc., 388 So. 2d 324 (Fla. 3d DCA 1980)
- State v. Sarasota Cnty., 282 So. 2d 877 (Fla. 1973)
- Heim v. Levine AND Freedman, P. A., 282 So. 2d 877 (Fla. 1973)
- Adams v. Adams, 278 So. 2d 287 (Fla. 1973)