ROSE GAER, APPELLANT,
v.
MAX GAER, APPELLEE
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In this divorce appeal, the wife challenges the trial court's denial of her claim to a partnership interest in her husband's taxicab business and contests the alimony award of $150 per month as inadequate. The appellate court affirms the decree, finding no reversible error in the chancellor's factual findings or discretionary alimony determination.
The court affirmed the denial of the partnership claim, finding it was supported by substantial competent evidence and not against the manifest weight of the evidence. The court upheld the alimony award, holding that the chancellor properly exercised his discretion in balancing the wife's needs against the husband's ability to pay, and that no abuse of discretion was demonstrated.
“A chancellor's resolution of an issue tried on controverted and conflicting evidence should not be rejected on appeal unless based on a misapplication of law or shown by the record to be clearly wrong, against the manifest weight of the evidence, or not supported by competent substantial evidence.”
Establishes the highly deferential standard of review for trial court factual findings
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Join FLexlaw to unlock all legal intelligenceRose Gaer sought a divorce from her husband Max Gaer. The trial court awarded her a divorce, $150 monthly alimony, attorney fees and costs, and determ…
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This appeal from a divorce decree is by the wife who was plaintiff below. The decree granted the wife a divorce and alimony of $150 per month, attorney fees and costs. In addition, it was held that as joint *790owner she was entitled to the benefit of one half of cash assets of $94,229.46, and that the husband was holding additional sums belonging to her amounting to $7,365.-72. Appellant challenges the provision of the decree denying her claim of partnership in a taxicab business previously owned and operated by the husband, and seeks an increase in alimony, which is contended to be inadequate on the evidence. On considering those contentions in the light of the record and of the able arguments and briefs, we conclude that the appellant has not shown reversible error.
As to the claim of partnership, which was an issue in the trial before the chancellor, we are unable to agree with the appellant’s contention that the chancellor’s decision1 was against the manifest weight of the evidence or was not supported by substantial competent evidence on the record. No useful purpose would be served by a detailed discussion of the evidence.
A chancellor’s resolution of an issue tried on controverted and conflicting evidence should not be rejected on appeal unless based on a misapplication of law or shown by the record to be clearly wrong, against the manifest weight of the evidence, or not supported by competent substantial evidence.2 Moreover, the decision comes here aided by a presumption of correctness.3
Regarding the alimony, the appellant argues that because of the size of the husband’s estate the allowance should have been larger. While a husband’s assets, as. well as his income, may be taken into consideration in determining his ability to-pa}',4 and a wife’s assets may be considered in determining her needs,5 the chancellor’s duty was to fix that amount for-alimony which in his discretion appeared, proper upon balancing the needs of the-wife and the paying ability of the husband.6 It was not shown that the chancellor mistakenly excluded from his consideration^ the value of the assets or estate of the-husband.7
The matter of the amount of the-alimony was within the sound discretion of the chancellor,8 who was in a position to be fully familiar with the situation and' financial abilities of the parties through the numerous hearings conducted during' the period the case was pending. The burden was on the party seeking to disturb such an allowance to show that the-chancellor abused his discretion in his selection of the amount of alimony.9 We hold' that abuse of discretion in this respect has not been demonstrated. If altered! *791conditions and circumstances in the future make the decreed alimony inadequate for the wife’s needs, she may seek appropriate relief by modification under § 65.15, Fla. Stat., F.S.A.
A further contention of the appellant is that the court should have made some allowance for her support pendente lite. Appellant argues that since she used money from a joint account of the parties for her support during the period of the litigation, provision should have been made in the decree giving her credit for her half of the funds thus expended. That contention lacks force, because at no time did the appellant apply for financial assistance during the pendency of the case, and since she was supported out of ample joint funds no undue financial hardship to her was shown.
A final contention, relating to costs, has been examined and considered and is found to be lacking in merit.
Accordingly, no reversible error having been made to appear, the decree appealed from is affirmed.
Affirmed.
ON REHEARING
Appellant’s petition for rehearing refers to an inaccurate statement in our opinion, that the appellant wife did not apply for financial assistance during the pendency of the cause below. The record reveals the wife moved for temporary alimony and attorney fees. Temporary fees were allowed, but the matter of temporary alimony was deferred and ruling thereon reserved. Thereafter the motion for temporary alimony was not pressed or renewed in the trial court. Our opinion is corrected accordingly. Other grounds of the petition for rehearing have been considered, and are hereby denied.
PER CURIAM.
Appellant’s petition for rehearing refers to an inaccurate statement in our opinion, that the appellant wife did not apply for financial assistance during the pendency of the cause below. The record reveals the wife moved for temporary alimony and attorney fees. Temporary fees were allowed, but the matter of temporary alimony was deferred and ruling thereon reserved. Thereafter the motion for temporary alimony was not pressed or renewed in the trial court. Our opinion is corrected accordingly. Other grounds of the petition for rehearing have been considered, and are hereby denied.
Cases With Similar Vibessemantic neighbors from the corpus
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Bettie B. Schultz v. Schultz, 290 So. 2d 146 (Fla. 2d DCA 1974)…d discretion in determining the amount of alimony and support. Kahn v. Kahn, Fla.1955, 78 So. 2d 367. The burden is on the party seeking to disturb such an allowance to show that the chancellor abused his discretion. Gaer v. Gaer, Fla.App.3rd, 1964, 168 So. 2d 789. Nevertheless, an appellate court is justified in increasing an award of alimony or support when an abuse of discretion is clearly perceived. McArthur v. McArthur, Fla. 1957, 95 So. 2d 521; Royal v. Royal, Fla.App.3rd, 1972, 263 So. 2d 277; Farbman…
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Becklin v. The Travelers Indem. Co., 263 So. 2d 629 (Fla. 1st DCA 1972)…er of fact in the lower court. Ross v. Florida Sun Life Ins. Co., 124 So. 2d 892 (Fla.App.1960). However, where the trial court has misconceived the legal effect of the facts, the appellate court is required to take cognizance thereof. Gaer v. Gaer, 168 So. 2d 789 (Fla.App.1964); and Lee Construction Corp. v. Newman, 143 So. 2d 222 (Fla.App.1962). We believe that appellant met the requirements of this court as set forth in Broxsie to show his entitlement to coverage, and for the reasons stated herein the jud…
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Milander v. Milander, 208 So. 2d 876 (Fla. 3d DCA 1968)…nd extent of the husband’s capital assets are factors which enter into a determination of the ability of the husband to pay. Chastain v. Chastain, Fla.1954, 73 So. 2d 66; Fleming v. Fleming, Fla.App.1965, 177 So. 2d 384; Gaer v. Gaer, Fla.App. 1964, 168 So. 2d 789. However, we are of the opinion that the appellant has failed to establish the one fact which must of necessity constitute the basis of her contention, that is that the trust corpus is a capital asset belonging to the appellee. The decree appealed…
Previewing 3 of 9 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited (14 total)
- Chastain v. Chastain, 73 So. 2d 66 (Fla. 1954)
- Pross v. Pross, 72 So. 2d 671 (Fla. 1954)
- Rogoff v. Rogoff, 115 So. 2d 456 (Fla. 3d DCA 1959)
- Forrest B. Lindley v. Lindley, 84 So. 2d 17 (Fla. 1955)
- Welsh v. Welsh, 160 Fla. 380 (Fla. 1948)
- Dings v. Gwladys H. Dings, 161 So. 2d 227 (Fla. 3d DCA 1964)
- Picchi v. Picchi, 100 So. 2d 627 (Fla. 1958)
- Nannie Lou Coulter v. Coulter, 97 So. 2d 152 (Fla. 1st DCA 1957)
- Town OF Medley v. Seminole Rock Prods., Inc., 138 So. 2d 534 (Fla. 3d DCA 1962)
- Fleischer v. Fleischer, 149 Fla. 621 (Fla. 1942)