FLORENCE S. ONCAY, APPELLANT,
v.
FRANK ONCAY, JR., APPELLEE
AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.
In this divorce case, the Florida District Court of Appeal affirmed the trial court's dismissal of the wife's divorce petition based on extreme cruelty, holding that false accusations of infidelity do not constitute cruelty if the accused spouse's conduct provided reasonable foundation for such accusations. The court also upheld the trial court's award of attorney's fees and costs as not grossly inadequate.
The trial court did not err in denying the divorce because accusations of infidelity, though false, do not constitute extreme cruelty if the accused spouse provoked them through her own conduct giving reasonable foundation for belief in their truth. The award of attorney's fees and costs was not grossly inadequate and within the chancellor's discretion. The motion for disqualification was properly denied as untimely and noncompliant with statutory requirements.
“There are circumstances in which false and unfounded accusations of infidelity may constitute extreme cruelty. It follows that accusations of infidelity may be false yet not constitute cruelty if the person accused has provoked them by her own conduct giving reasonable foundation for a belief in the truth of the accusations.”
Establishes the legal standard that false accusations of infidelity do not automatically constitute extreme cruelty; rather, the accused's own conduct providing reasonable foundation for the accusations is determinative.
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceThe plaintiff-wife filed for divorce alleging extreme cruelty based on her husband's constant accusations of infidelity and physical abuse. The trial …
The full statement of facts, procedural history, and disposition for this case are member content.
Join FLexlaw to unlock all legal intelligence© FLexlaw, Inc. — AI-generated enrichments are proprietary. All rights reserved.
Explore caselaw by topic → Browse Extreme Cruelty cases and more on FLexlaw
Plaintiff-wife filed an amended complaint praying to be divorced from the defendant on the ground of extreme cruelty. The basic allegations were that the defendant-husband constantly accused her of infidelity and physically abused her during their marital relationship. On final hearing the chancellor dismissed the cause and required the husband to pay attorney’s fees and costs.
The wife contends that the chancellor erred in denying her prayer for divorce where the evidence sustains the allegation that her husband Accused her of infidelity.
The chancellor found that although the evidence did not present sufficient facts to show that the wife was guilty of any infidelity, she was at fault in creating circumstances from which a man could reasonably make such accusations.
There are circumstances in which false and unfounded accusations of infidelity may constitute extreme cruelty.1 It follows that accusations of infidelity may *880be false yet not constitute cruelty if the person accused has provoked them by her own conduct giving reasonable foundation for a belief in the truth of the accusations.
Whether or not the accusations are justified is a question of fact to be determined by the chancellor.
It is unnecessary to relate the facts and circumstances upon which the chancellor based his decision. It is our opinion that the chancellor’s findings are supported and corroborated by competent evidence of record, and that he did not err in denying the divorce.
The wife further contends that the chancellor abused his discretion in awarding inadequate attorney’s fees and costs.
The chancellor awarded the wife the sum of $700.00 as attorney’s fees and $70.15 as costs. There was testimony of two expert witnesses to the effect that reasonable fees would be from $2,400.00 to $5,000.00. While this testimony is persuasive, it is not binding upon the chancellor or this court.2 The amount of attorney’s fees to be awarded is a matter largely within the sound judicial discretion of the chancellor, and his determination will not be disturbed unless found to be grossly inadequate.3
Taking into consideration the findings of the court, the services rendered and the financial ability of the parties to respond, we find that the award of attorney’s fees is not grossly inadequate.
The chancellor did not indicate how he determined that the sum of $70.15 should be awarded as costs. The wife had listed costs in the amount of $420.44. The greater portion of these costs pertained to expert witness fees which the chancellor, during the trial, considered unnecessary. In addition, there were amounts listed for a deposition which was not used at trial and a record search necessitated by the wife’s inability to recall that she had previously instituted divorce proceedings. Although it would be helpful to this court if the chancellor had indicated how he reached the sum awarded, we believe it would serve no useful purpose to remand the cause for that reason. It was within the chancellor’s discretion to deny most of the items listed as costs. As no abuse of the chancellor’s discretion is shown, we have concluded that the amount awarded as costs is correct.
The wife further contends that the chancellor erred in refusing to disqualify himself for bias and prejudice. A motion for disqualification under § 38.10, Fla.Stat., F.S.A. was filed by the wife without supporting affidavits. The motion, which was filed after the final order, was denied because it did not meet the substantial requirements of § 38.10, supra. The chancellor was correct in denying the motion as it was untimely and did not comply with the applicable statute.
We have thoroughly examined all of the points on appeal and find them to be without merit.
Accordingly, the order appealed from is affirmed.
Affirmed.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
-
Blass v. Blass, 316 So. 2d 308 (Fla. 3d DCA 1975)…or’s order awarding her partial costs and attorney’s fees was erroneous. After a review of the record on appeal, we cannot say the chancellor abused his discretion in this matter. Thus, this point is without merit. See Oncay v. Oncay, Fla.App.1966, 183 So. 2d 878. For the reasons stated, the judgment appealed is affirmed in part, reversed in part and remanded to the trial court for further proceedings consistent herewith. It is so ordered.…
-
Koken v. Neubauer, 374 So. 2d 49 (Fla. 3d DCA 1979)…1974). Further, we see no error in the amount of the attorney’s fees awarded to appellant by the trial court. See, e. g., Cummings v. Cummings, 330 So. 2d 134 (Fla.1976); Campbell v. Campbell, 220 So. 2d 920 (Fla. 4th DCA 1969); and Oncay v. Oncay, 183 So. 2d 878 (Fla. 3d DCA 1966). For the reasons set forth above, the portions of the order appealed in regard to the change in child custody provisions and attorney’s fees are affirmed, and the portion of the order relieving appellee of child support payments…
-
Gertrude B. Campbell v. Campbell, 220 So. 2d 920 (Fla. 4th DCA 1969)…$5,000.00. Such expert testimony is persuasive, but not binding on the chancellor. In determining the amount to be awarded as an attorney’s fee, the financial ability of the husband may also be taken into consideration. Oncay v. Oncay, Fla.App.1966, 183 So. 2d 878 and Chaachou v. Chaachou, Fla.1961, 135 So. 2d 206. In view of the testimony in the record with respect to the limited ability of the defendant to pay, we cannot conclude that the trial court abused its discretion by limiting the amount of the fee t…
Previewing 3 of 10 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Sailing W. Baruch v. Giblen, 122 Fla. 59 (Fla. 1935)
- Baker v. Baker, 94 Fla. 1001 (Fla. 1927)
- Fredericka Phillips Chaachou v. Khudourie Chaachou, 135 So. 2d 206 (Fla. 1961)
- In re Petition of David Krueger for Admission to The Florida Bar, 135 So. 2d 206 (Fla. 1961)
- Berry Wetherington v. Wetherington, 57 Fla. 551 (Fla. 1909)
- Parsons v. Tunis Waldon Parsons, JR., 154 Fla. 299 (Fla. 1944)
- Longino v. Longino, 67 So. 2d 203 (Fla. 1953)