ZAYE C. HARLESS, APPELLANT,
v.
ROBERT L. HARLESS, APPELLEE
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A wife appealed a final divorce decree in which she was found guilty of extreme cruelty and ordered to pay lump sum alimony. The appellate court affirmed, rejecting her res adjudicata defense based on a prior Massachusetts proceeding and finding insufficient evidence of an abuse of discretion regarding the alimony award.
The trial court properly rejected the res adjudicata defense because the wife failed to carry her burden of proof, having offered only a copy of the Massachusetts decree as evidence. Regarding the alimony award, absent evidence of the monetary value of the home interest, the appellate court could not determine whether the chancellor abused his discretion and therefore applied the presumption of correctness.
“The burden of proving this affirmative defense belonged to the wife. The only matter in evidence before the court supporting this defense was a copy of the Massachusetts decree. This was not sufficient to carry the burden of proof.”
Establishes the standard for proving res adjudicata and why the wife's evidence was inadequate.
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Join FLexlaw to unlock all legal intelligenceThe wife and husband were parties to a divorce proceeding in Florida. The wife raised an affirmative defense of res adjudicata based on an earlier dom…
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The wife appeals from a final decree of . divorce.
She was found guilty of extreme cruelty and the husband was awarded a divorce. One grievance centers upon the failure of the chancellor to find that the husband was barred from this relief by the affirmative defense pled and denominated by her as res adjudicata. This plea was based upon an earlier domestic relations proceeding in the State of Massachusetts.
The burden of proving this affirmative defense belonged to the wife. The only matter in evidence before the court supporting this defense was a copy of the Massachusetts decree. This was not sufficient to carry the burden of proof. Hohweiler v. Hohweiler, Fla.App.1964, 167 So.2d 73. The wife argues further on this point claiming that she was prevented from introducing additional proofs by an erroneous ruling of the court. While there is discussion in the record as to whether or not the wife could testify as to the testimony produced in the Massachusetts proceeding, scrutiny reveals that she was never asked a specific question with objection made and ruling rendered so as to preserve the question for this court’s consideration. Rather it appears that the inquiry was abandoned without a proffer having been made or offered. See 2 Fla.Jur., Appeals §§ 66, 67 and 70. We conclude therefore that .the chancellor’s determination that the affirmative defense was not established was correct.
The next basic contention made by the wife is that the trial court erred in awarding the wife lump sum alimony instead of periodic or installment alimony. The court may award either periodic alimony, lump sum alimony, or both, in its discretion. F.S.A. § 65.08. Here the final decree awarded the husband’s interest in a jointly owned furnished home to the wife as lump sum alimony. There is no evidence in the record as to the worth of such award, i. e., the money value of the husband’s interest in the home. Absent this critical information this court is simply unable to determine whether or not the award is fit, equitable and just under the circumstances and whether or not the chancellor abused his discretion. Thus, the presumption of correctness obtains and we have no basis upon which to disturb or question the award. Picchi v. Picchi, Fla.1958, 100 So. *7302d 627; Katz v. Katz, Fla.App.1964, 159 So.2d 241; see also Rubinow v. Rubinow, Fla. 1949, 40 So.2d 561.
Finding no error the decree appealed is affirmed.
ANDREWS, Acting Chief Judge, and STURGIS, WALLACE E., Associate Judge, concur.
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Citator
Cited By
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Wagner v. Wagner, 196 So. 2d 453 (Fla. 4th DCA 1967)…deemed to have been denied. With the burden of proof resting on the defendant as to the affirmative defense, necessarily proof was required. Courtlandt Corporation v. Whitmer, Fla.App.1960, 121 So. 2d 57. See also Harless v. Harless, Fla. App.1966, 185 So. 2d 728; Hohweiler v. Hohweiler, Fla.App.1964, 167 So. 2d 73. All she presented to substantiate her af-firmance defense was the final decree entered in previous proceedings which was attached to her answer. Since the complaint itself stated a cause of acti…
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Blume v. Blume, 203 So. 2d 627 (Fla. 4th DCA 1967)…of appellant’s contention on appeal is the assertion that the trial court erred as a matter of law in awarding the appellee-wife a lump sum award and also periodic payments of alimony. We affirm on the authority of Harless v. Harless, Fla.App.1966, 185 So. 2d 728. The remaining points on appeal have been considered and we find them to be without merit. See Bennett v. Bennett, Fla.App. 1962, 146 So. 2d 588; Picchi v. Picchi, Fla.1958, 100 So. 2d 627; Lynch v. Coppola, Fla.App.1961, 129 So. 2d 183; Vaughn v.…
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Fisher v. Fisher, 341 So. 2d 804 (Fla. 3d DCA 1977)…PER CURIAM. Affirmed. DelVecchio v. DelVecchio, 143 So. 2d 17 (Fla.1962); Harless v. Harless, 185 So. 2d 728 (Fla.4th D.C.A.1966); Posner v. Posner, 257 So. 2d 530 (Fla.1972); Bunn v. Bunn, 311 So. 2d 387 (Fla.4th D.C.A.1975); Plant v. Plant, 320 So. 2d 455 (Fla.3rd D.C. A.1975); Lutgert v. Lutgert, 338 So. 2d 1111 (Fla.2nd D.C.A.1976).…
Authorities Cited
- Picchi v. Picchi, 100 So. 2d 627 (Fla. 1958)
- Rubinow v. Rubinow, 40 So.2d 561 (Fla. 1949)
- Katz v. Ira G. Katz, 159 So. 2d 241 (Fla. 3d DCA 1964)
- Hohweiler v. Hohweiler, 167 So. 2d 73 (Fla. 2d DCA 1964)