MARCUS B. BERGH, APPELLANT,
v.
MILDRED C. BERGH, APPELLEE

Fla. 1st DCA | 1964-01-30
No. E-338
STURGIS, C. J., and CARROLL, DONALD K., J., concur.
160 So. 2d 145 Florida District Court of Appeal, First District (1964) Positive Treatment
Cited by 18 cases

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Synopsis

In this family law appeal, a divorced husband sought to reduce his alimony and child support obligations, claiming material changes in his financial circumstances. The trial court denied the modification petition, and the appellate court affirmed, finding no abuse of discretion despite the husband's undisputed evidence of worsened finances.


Holding

The appellate court held that the trial court did not abuse its discretion in denying the modification petition. Although the husband presented uncontradicted factual evidence of worsened finances, the court found that his opinions and inferences from the facts were not adequately supported and that the trier of fact was entitled to weigh such testimony according to the circumstances.


Key Quotes

“when uncontradicted testimony consists of facts, as distinguished from opinions, and is not illegal, improbable, unreasonable or contradictory within itself, it should not be wholly disregarded, but should be accepted as proof of the issue”

Establishes the rule that uncontradicted factual testimony must generally be accepted, but distinguishes between facts and opinions

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Facts & Procedural History

The parties were divorced on July 30, 1960. In May 1962, the husband purchased the wife's interest in jointly-owned property for $5,300 per year over …

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Opinion of the Court
WIGGINTON, Judge.

WIGGINTON, Judge.

This appeal by defendant husband is from an order denying his petition to modi*146fy the provisions of a final decree of divorce by reducing the amount of alimony and child support which he is required to pay.

Appellee wife was granted a final decree of divorce on July 30, 1960. Being dissatisfied with the provisions of the decree settling the property rights of the parties, the wife appealed. By opinion filed March 7, 1961, this Court reversed that part of the decree which purported to divide between the parties certain property accumulated by them during marriage, and remanded the case to the trial court for further proceedings.1

Approximately one year later, in May of 1962, appellant purchased from appellee her interest in the properties owned by them as tenants in common and thereby obligated himself to pay her the sum of $5,300.00 a year for the ensuing ten years.

On May 10, 1963, appellant filed his petition in the cause alleging that his circumstances had materially changed since entry of the original decree, and praying for a reduction in the amount required to be paid by him for alimony and child support. Testimony offered by the husband on this issue was considered by the chancellor who entered the order here assaulted. By his order the chancellor found that there has been no material change in appellant’s cir•cumstances or other occurrence to justify reduction of the alimony and child support fixed by the provisions of the final decree. The husband’s petition for relief was accordingly denied.

The sole question presented for our decision on this appeal is whether the chancellor abused his discretion in denying the relief sought by appellant under the evidence reflected by this record. Only appellant .and his accountant testified at the hearing. The facts adduced in evidence are not disputed. Appellant testified that his financial circumstances have changed for the worse, and he is no longer able to meet the financial requirements made of him by the terms of the final decree. A substantial part of appellant’s worsened financial condition is the $5,300.00 a year he voluntarily agreed to pay his former wife for her interest in their jointly-owned property which he purchased from her only one year before his petition for modification was filed.

Appellant strenuously contends that since the facts are not in dispute, the chancellor is bound by the evidence and therefore abused his discretion in denying the relief sought. It is quite true that when uncontradicted testimony consists of facts, as distinguished from opinions, and is not illegal, improbable, unreasonable or contradictory within itself, it should not be wholly disregarded, but should be accepted as proof of the issue.2 It is equally true, however, that the trier of fact is never bound by mere conclusions expressed by the witnesses or by inferences drawn by them from the facts, but may give this type testimony such weight as the circumstances shall justify.

We have carefully considered the evidence and testimony offered at the hearing on appellant’s petition, but fail to perceive wherein it can be said that the chancellor abused his discretion in denying the relief sought. The opinions expressed by appellant at the trial are not supported by the facts established by the evidence. Appellant having failed to clearly demonstrate an abuse of discretion by the chancellor, the order appealed is affirmed.

STURGIS, C. J., and CARROLL, DONALD K., J., concur.


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Citator

Cited By

  • In re the Marriage OF James M. Johnson, 352 So. 2d 140 (Fla. 1st DCA 1977)
    …e of the dissolution. We agree and reverse. Florida courts have uniformly held that a reduction in child support may be warranted upon changed circumstances which are substantive, material, involuntary and permanent in nature. (See Bergh v. Bergh, 160 So. 2d 145 (Fla. 1st DCA 1964); Groves v. Groves, 260 So. 2d 858 (Fla. 1st DCA 1972); and Brown v. Brown, 315 So. 2d 15 (Fla.3rd DCA 1975). The record sub judice reveals that while the husband does show certain changes in circumstances the changes were strictl…
  • Tri-State Sys., Inc. v. Dep't OF Transp., 500 So. 2d 212 (Fla. 1st DCA 1986)
    …t deny or otherwise controvert the statements attributable to them, the uncontradicted testimony of TriState’s representatives should have been accepted as credible evidence absent some other basis in the record for rejecting it. See Bergh v. Bergh, 160 So. 2d 145, 146 (Fla. 1st DCA 1964); 23 Fla.Jur.2d, Evidence and Witnesses, § 359 (1980). The hearing officer’s recommended order, as approved by DOT, applied incorrect principles of law in rejecting this testimony on the grounds stated. The record does not,…
  • Reid v. In re Est. OF Edgar Sonder, 63 So. 3d 7 (Fla. 3d DCA 2011)
    …rev’d on other grounds, 205 So. 2d 289 (Fla.1967), it should not be disregarded but accepted as proof of the issue. Florida East Coast Ry. v. Michini, 139 So. 2d 452 (Fla. 2d DCA 1962), cert. discharged, 152 So. 2d 171 (Fla.1963).”); Bergh v. Bergh, 160 So. 2d 145, 146 (Fla. 1st DCA 1964) (“[W]hen uncon-tradicted testimony consists of facts, as distinguished from opinions, and is not illegal, improbable, unreasonable or contradictory within itself, it should not be wholly disregarded, but should be accepted a…

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