EVANS
v.
EVANS
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In a post-divorce modification case, the court addressed whether the former wife could continue receiving alimony from her ex-husband after remarrying and subsequently obtaining an annulment. The court held that the former wife's remedy lay against her annulled husband for support based on fraud, not against her former husband, and limited her recovery to child support only.
The court held that the former wife should seek alimony from her annulled husband based on fraud and his ability to pay, since she was an innocent victim of his wrong, rather than from her former husband. Therefore, her recovery against the former husband is limited to child support only, not alimony. The court ordered defendant to pay $500 per month for the support of the minor child David R. Evans beginning August 1, 1966.
“it appears that plaintiff would be entitled to seek alimony from Robert Emmett McCaffrey, her partner in the annulled marriage, premised upon her need and his ability to pay, because she was an innocent victim of his wrong. It therefore appears that, having a remedy against him, she would not, in addition, have a remedy against her former husband”
Establishes the principle that a former spouse cannot seek alimony from both a former husband and an annulled husband when the annulled spouse is responsible for the injury giving rise to the alimony claim.
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Join FLexlaw to unlock all legal intelligencePlaintiff and defendant were divorced on October 1, 1958, with a final decree requiring defendant to pay $1,000 per month for alimony and child suppor…
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Order for temporary relief: This cause is before the court on plaintiffs petition to modify final decree and for temporary relief.
Plaintiff was divorced from defendant on October 1, 1958. The final decree approved a stipulation between the parties providing that defendant should pay $1,000 per month for alimony and support for two minor children — without allocating or separating the portion thereof due for alimony.
Plaintiff became remarried May 31, 1966. The defendant continued to pay $1,000 per month through June 1966, and then discontinued further payments.
Plaintiff brought an annulment action against her new husband on July 8, 1966, on grounds of fraud and concealment, alleging that the marriage had not been consummated, and was granted a final decree on August 9, 1966. On August 19, 1966 she filed the petition now before the court.
Under the principles contained in the cases cited by counsel, independent of statutory provisions, it appears that plaintiff would be entitled to seek alimony from Robert Emmett McCaffrey, her partner in the annulled marriage, premised upon her need and his ability to pay, because she was an innocent victim of his wrong. It therefore appears that, having a remedy against him, she would not, in addition, have a remedy against her former husband, the defendant in the present case. Reese v. Reese, Fla., 178 So.2d 913. The court will therefore limit her recovery on her present claim for temporary relief to support for the minor child or children of the parties.
The eldest of the two children, Richard H. Evans, Jr., is in the armed forces and there is no showing that temporary relief with respect to him is warranted. It is not disputed that defendant is liable for support of the younger child, David R. Evans, of whom plaintiff has custody. Under the circumstances the court finds that the sum of $500 per month for that purpose is justly due and payable, beginning as of August 1, 1966. Defendant’s payment of $1,000 for the month of June 1966 is recognized as covering his liability for such child support during June and July.
Upon consideration, it is ordered and decreed that defendant shall pay to plaintiff for the temporary care, maintenance and *141support of the minor child, David R. Evans, the sum of $500 per month, beginning as of August 1, 1966; that the sums now due and payable for that purpose to and including October 1, 1966, amount to $1,500; and that pending further order, defendant shall continue to pay the plaintiff $500 per month beginning November 1, 1966.