NORMAN PERRY WOOTEN, APPELLANT,
v.
JANE MASSEY WOOTEN, APPELLEE
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The court held that the trial judge did not abuse discretion in denying a late amendment to include adultery as a ground for divorce. The court also found the evidence sufficient to support the attorney's fee award.
The husband sought a divorce and attempted to amend his complaint to add adultery as a ground after the conclusion of his case. The wife was granted a…
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The former husband, plaintiff in the trial court, appeals a final judgment of *293divorce and assigns as error the refusal of the trial court to permit an amendment of his complaint at the conclusion of his case to include the additional ground of adultery. The final judgment granted a divorce to the plaintiff-husband upon the grounds of extreme cruelty and provided alimony for the defendant-wife. The record establishes that the plaintiff knew of the allegedly adulterous conduct prior to filing the complaint for divorce. The wife’s conduct was the subject of discovery and was introduced as evidence in support of the allegation of extreme cruelty. Under these circumstances we do not think that the trial judge abused his discretion in refusing a motion to amend the complaint to include the charge of adultery at the conclusion of plaintiff’s case.
Rule 1.190(e), Florida Rules of Civil Procedure, 30 F.S.A., provides: “At any time in the furtherance of justice * * the court may permit any * * * pleading or record to be amended * * Leave to amend should be liberally granted. American Ladder & Scaf. Co. v. Miami Vent. Awn. Co., Fla.App.1963, 150 So.2d 268. But leave to amend is discretionary with the trial judge. We do not think it has been demonstrated that under the circumstances of this case, the trial judge abused his discretion in denying the privilege of amendment at such a late stage in the proceedings. See United States v. State, Fla.App.1965, 179 So.2d 890; Corbett v. Eastern Air Lines, Inc., Fla.App.1964, 166 So.2d 196, 205.
In addition the appellant urges that the evidence before the trial court was insufficient to sustain the attorney’s fee awarded to the appellee wife. It is true that appellant upon cross examination succeeded in minimizing the weight of expert testimony in support of the award of an attorney’s fee, but we are unable to say that the evidentiary basis for the fee was insufficient as a matter of law. See Rubin v. Major, Fla.App.1968, 209 So.2d 691.
Affirmed.
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Metro. Dade Cnty. v. Maddox, 242 So. 2d 165 (Fla. 3d DCA 1970)…ed the denial of the motion to amend its answer as error. We find no abuse of discretion by the trial court in the denial of the motion to amend the answer at the time and under the circumstances involved herein. See Wooten v. Wooten, Fla.App.1968, 213 So. 2d 292; Triax, Inc. v. City of Treasure Island, Fla.App.1968, ,208 So. 2d 669. Under Point Two Dade County argues that the “overtime rule” does not require that overtime be paid immediately and never requires overtime to be paid to job basis employees; th…
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Pinsker v. Filmore Invs. Corp., 243 So. 2d 165 (Fla. 3d DCA 1971)…dants and to have the available assets of all the defendants marshalled. This motion was made after plaintiff had presented her case and rested. No abuse of discretion by the trial judge has been shown in this appeal. Wooten v. Wooten, Fla.App.1968, 213 So. 2d 292; Triax, Inc. v. City of Treasure Island, Fla.App.1968, 208 So. 2d 669; and Houston Texas Gas & Oil Corporation v. Hoeffner, Fla.App.1961, 132 So. 2d 38. The final decree is Affirmed.…
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Se. Title & Ins. Co. v. Caldwell, 326 So. 2d 12 (Fla. 1975)…inly appear to have been in effect the imposition of an injustice or that the ruling was erroneous and may well have affected a decision of the jury. . . . ” 2 Fla.Jur., Appeals, § 328, Note 13, at 696. This case is different from Wooten v. Wooten, 213 So. 2d 292 (Fla.App.3d, 1968), and Triax, Inc., v. City of Treasure Island, 208 So. 2d 669 (Fla.App.2d, 1968), where the denials of motions to amend to conform to the evidence were found not to have been abuses of discretion. In Wooten, the Court denied husban…
Authorities Cited
- United States v. State of Fla. & Cnty. of Dade, 179 So. 2d 890 (Fla. 3d DCA 1965)
- Corbett v. E. AIR Lines, Inc., 166 So. 2d 196 (Fla. 1st DCA 1964)
- Rubin v. Major, 209 So. 2d 691 (Fla. 3d DCA 1968)
- Miller v. The Miami Beach First Nat'l Bank & Gladys Schutz, 150 So. 2d 268 (Fla. 3d DCA 1963)
- Am. Ladder & Scaffold Co., Inc. v. The Miami Ventilated Awning Co., Inc., 150 So. 2d 268 (Fla. 3d DCA 1963)