MARY TROEGER
v.
E. T. TROEGER
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Mary Troeger petitioned the Florida Supreme Court for temporary alimony, suit money, and attorney's fees while appealing her divorce decree. The Court denied the petition, holding that when a wife is unsuccessful in the trial court, she must demonstrate the appeal is taken in good faith, likely to succeed, and that appellate aid is essential to defend her marital rights.
A wife unsuccessful in the trial court has no automatic right to appellate aid. She must affirmatively demonstrate to the appellate court that the appeal is taken in good faith, is likely to be well founded, and that appellate assistance is essential to properly defend her marital rights. The petition failed to meet this burden.
“Where the wife has won in the Circuit Court the merits of the controversy are prima facie with her, and it is only necessary for the wife, in applying for an allowance to defend an appeal from the decree in her favor, to demonstrate to the appellate court that the appellant husband has means wherewith to live and litigate, whereas the wife is without such means”
Establishes the different standard when the wife prevails at trial versus when she loses.
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Join FLexlaw to unlock all legal intelligenceMary Troeger and E. T. Troeger were involved in a divorce suit in the Circuit Court. The Chancellor granted the husband a decree of divorce and denied…
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A petition (duly verified by appellant) is before this Court praying for an order of the Supreme Court requiring the appellee, petitioner’s husband (lately divorced), to pay her reasonable sums for alimony, support and maintenance pending appeal, suit money for costs of appeal, and a reasonable attorney’s. fee for briefing and arguing appellant's cause. No part of the record in the court below has accompanied the petition.
It is discerned, however, from the petition itself that the suit in the court below was one for divorce between appellant and appellee; that the Chancellor-decided the cause in favor of the husband by granting him a divorce; that in the proceeding below a cross complaint by the appellant wife was interposed and denied; that the particular object of the appeal by the appellant wife is to present to the appellant court her contention that the Chancellor erred in confirming the Master’s report and in granting her husband a decree of divorce.
Where the wife has won in the Circuit Court the merits of the controversy are prima facie with her, and it is only necessary for the wife, in applying for an allowance to defend an appeal from the decree in her favor, to demonstrate to the appellate court that the appellant husband has means wherewith to live and litigate, whereas the wife is without such means, and must have learned counsel in order to properly present her defense of the marital relation for the proper and impartial administration of justice, and to enable the appellate court to be advised by appropriate briefs *55and arguments of the rights of the wife. Prine v. Prine, 36 Fla. 676, 18 Sou. Rep. 781, 34 L. R. A. 87.
But it does not follow, as a matter of course, that every' time a wife is unsuccessful in obtaining a favorable decree in the Circuit Court in a divorce controversy, whether she was defendant or complainant therein, that the appellate court should extend its aid in prolonging the litigation, by amercing the successful husband with the costs • and expenses of her appellate proceedings, as to which no showing is made of the likely success of the appeal, if the erstwhile wife is so aided and the appeal prosecuted.
In the latter class of cases,- the application of the appellant wife is addressed to the sound discretion of the appellate court, and she must assume the burden of showing, as a predicate for the granting of the application, that the appeal is taken in good faith and likely to be well founded, and that it is essential that the applicant have the appellate court’s aid in order to enable her to have her marital rights properly defended in the appellate proceedings. Duss v. Duss, 92 Fla. 1081, 111 Sou. Rep. 382; Goolsby v. Goolsby, 114 Fla. 578, 154 Sou. Rep. 522; Frohock v. Frohock, 117 Fla. 603, 158 Sou. Rep. 106.
Where the wife is unsuccessful in a divorce suit, allowance of attorney’s fees, suit money and temporary alimony is not a matter of right, since it is presumed that divorce decree was correct. To sustain such an allowance in cases where the wife has been defeated on the merits in the court below, it is required that the appellant wife show to the appellate court by references to the record or other appropriate means, that a substantial basis for -an appeal exists. Courtney v. Courtney, 108 Fla. 276, 146 Sou. Rep. 229; Woodward v. Woodward, 122 Fla. 300, 165 Sou. Rep. 46; Phifer v. Phifer, 124 Fla. 223, 168. Sou. Rep. 9. Com*56pare: McMillan v. McMillan, 114 Fla. 763, 154 Sou. Rep. 850.
The application of the appellant wife in the present case fails to measure up to the standard of requirement laid down in the cases hereinbefore cited, so the petition will, be denied, but without prejudice to the renewal of same in proper form, if- appellant shall be so advised.
Ordered accordingly.
Ellis, C. J., and Terrell, Brown, Buford, J. J., .concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Boyer v. Boyer, 588 So. 2d 615 (Fla. 5th DCA 1991)…rds. See also Riesner v. Riesner, 129 Fla. 762, 176 So. 765 (1937). But, the appellate court retained the power and discretion to decide whether the impecunious appellant had made a sufficient showing of merit and good faith. See Troeger v. Troeger, 127 Fla. 53, 172 So. 473 (1937). However, the court said in Troeger that if the impecunious spouse is the appellee defending an appeal by a prosperous appellant, then the appellee should be awarded temporary suit money and attorney’s fees simply by making a sho…
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Miller v. Miller, 586 So. 2d 1315 (Fla. 5th DCA 1991)…priate for the appellate court initially to determine whether the appeal is brought in good faith and whether there are reasonable grounds to believe the appeal may be successful. Phifer v. Phifer, 124 Fla. 223, 168 So. 9 (1936); Troeger v. Troeger, 127 Fla. 53, 172 So. 473 (1937).3 This seems a reasonable limitation and, in the present case, a showing has [*1317] been made that is adequate to convince this court to authorize an interim award to pay the cost of preparing the transcript so that appellant ma…1 / 2
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Pyszka v. Mullin, 602 So. 2d 956 (Fla. 3d DCA 1992)…contains absolutely no representation or showing of good faith. Boyer v. Boyer, 588 So. 2d 615 (Fla. 5th DCA 1991); Miller v. Miller, 586 So. 2d 1315 (Fla. 5th DCA 1991), citing, Phifer v. Phifer, 124 Fla. 223, 168 So. 9 (1936); Troeger v. Troeger, 127 Fla. 53, 172 So. 473 (1937). Cf. Dresser v. Dresser, 350 So. 2d 1152 (Fla. 1st DCA 1977). See also Sierra v. Sierra, 505 So. 2d 432 (Fla.1987). Not only was there no representation on showing of good faith by the respondent, the record on appeal amply demo…
Previewing 3 of 5 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Elizabeth v. Duss, 92 Fla. 1081 (Fla. 1926)
- Phifer v. Vannie L. Phifer, 124 Fla. 223 (Fla. 1936)
- Prine v. Prine, 36 Fla. 676 (Fla. 1895)
- Frohock v. Frohock, 117 Fla. 603 (Fla. 1934)
- Courtney v. Courtney, 108 Fla. 276 (Fla. 1933)
- Woodward v. Woodward, 122 Fla. 300 (Fla. 1935)
- Cassens v. Metro. Life Ins. Co., 114 Fla. 659 (Fla. 1934)
- Bd. of Pub. Instruction for Holmes Cnty. v. Brown, 114 Fla. 711 (Fla. 1934)
- McMillan v. McMillan, 114 Fla. 763 (Fla. 1934)
- Goolsby v. Goolsby, 114 Fla. 578 (Fla. 1934)