CLYDE W. TRUXELL, III, AND UNIVERSAL AUTOMATIC MARINE, INC., A CORPORATION, APPELLANTS,
v.
BONNIE M. TRUXELL, APPELLEE
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In this Florida divorce case, the defendant husband appealed a judgment requiring him to repurchase 10,000 shares of corporate stock from his wife and repay her investment, based on the trial court's finding that he committed fraud by inducing her to invest in his corporation before their marriage. The appellate court affirmed, holding that the trial court acted within its discretion and that the husband waived his objection to the court's consideration of testimony from a separate maintenance action by failing to assign it as error on appeal.
The trial court acted within its discretionary authority in ordering the repurchase of the stock and repayment of the investment in the interest of justice. Although the trial court erred in taking judicial notice of testimony from the separate maintenance action that was not made part of the record, this error was waived because the husband failed to assign it as error in his appellate brief.
[1] A trial court may order a party to repurchase stock sold prior to marriage as part of a divorce judgment if it is in the interest of justice and within the court's discre…
[2] Errors not assigned or raised as a point on appeal in a party's brief are considered waived.
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Join FLexlaw to unlock all legal intelligence“in the inter[est] of justice the court acted within the discretionary ambit of its judicial power, and its action does not constitute such an abuse as to require a reversal of the judgment”
The court's holding that the trial court did not abuse its discretion in ordering the stock repurchase.
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Join FLexlaw to unlock all legal intelligenceThe husband owned and controlled a corporation. Approximately 1.5 years before the parties married, he sold 10,000 shares of stock in the corporation …
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Defendant husband has appealed a final judgment of divorce dissolving the bonds of matrimony between him and his plaintiff wife. Appellant’s point on appeal challenges the correctness of that provision of the final judgment which finds that he perpetrated a fraud on his wife when he induced her to make an investment in a corporation primarily owned and controlled by him some U/z years prior to their marriage, and further defrauded her by the manner in which he conducted the affairs of the corporation during the brief 17 days they lived together as husband and wife following their marriage. As a result of such finding, the trial court ordered appellant to repurchase from appellee the 10,000 shares of stock which he sold to her in his corporation and repay to her the amount of her investment on or before August 3, 1972.
It is appellant’s contention that the trial court abused its discretion and exceeded its lawful authority in requiring him to repurchase from his wife stock sold by him to her in his corporation at a point in time some 1Yz years prior to their marriage. With this contention we are unable to agree. It is our view that in the inter*768est of justice the court acted within the discretionary ambit of its judicial power, and its action does not constitute such an abuse as to require a reversal of the judgment.1
Appellant also complains that the conclusion reached by the trial court with regard to his alleged acts of fraud was based upon testimony adduced in a separate maintenance action brought by appel-lee against him in a separate suit filed earlier but which was later abandoned. Appellant correctly points out that such testimony was not offered into evidence at the hearing before the court in the case sub judice and, therefore, the court erred in taking judicial notice of such testimony in arriving at the conclusions expressed in the judgment appealed.
While the legal postulate advanced by appellant is correct as a matter of law,2 it is one which he is precluded from urging on this appeal. This is so for the reason that the court’s error in erroneously taking judicial notice of testimony appearing in the files of another case not made a part of the record herein was not assigned as error nor made a point on appeal in appellant’s brief. Errors not assigned 3 or made a point on appeal in the party’s brief 4 and rasied for the first time on appeal5 are considered waived.
The judgment appealed is affirmed.
S'PE'CTOR, C. J., and JOHNSON, J., concur.
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Earnest Hagen and Jerry M. Richardson v. AETNA Cas. & Sur. Co., 675 So. 2d 963 (Fla. 5th DCA 1996)…ee Norris v. Edwin W. Peck, Inc., 381 So. 2d 353, 354-55 (Fla. 5th DCA 1980) (stating that "this court should not address portions of orders which have not been raised on appeal and about which the parties are not complaining.”); Truxell v. Truxell, 259 So. 2d 766, 768 (Fla. 1st DCA 1972) (stating that "[e]rrors not assigned or made a point on appeal in the party's brief ... are considered waived.”) (footnotes omitted). Further, I find the majority’s concern of an alleged lack of notice misplaced. The record…
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Cohen v. Ada Turkish Trask, 471 So. 2d 1294 (Fla. 3d DCA 1985)…in the record, appellate courts rarely reverse trial court rulings on issues not framed in the appeal (appellant’s own brief states: “The only issue raised here is which Statute of Limitations applies to this case.”), see, e.g., Truxell v. Truxell, 259 So. 2d 766 (Fla. 1st DCA 1972); Florida Citrus Commission v. Owens, 239 So. 2d 840 (Fla. 4th DCA 1970) (on rehearing), cert. denied, 242 So. 2d 873 (Fla.1971), or not raised below. See, e.g., Estate of Conger v. Conger, 414 So. 2d 230, 232 n. 1 (Fla. 3d DCA 19…
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Alan v. Levan, 545 So. 2d 892 (Fla. 3d DCA 1989)…lant has relied on this foreign matter in his brief when there is no issue made on the appropriateness of the trial court’s denial of this matter into evidence. See & compare Horowitz v. Raskin, 305 So. 2d 856 (Fla. 3d DCA 1974); Truxell v. Truxell, 259 So. 2d 766 (Fla. 1st DCA 1972). . A review of this record reveals evidence that the marital assets accumulated by the parties had a value from a low of $3,000,000. to a high of $10,000,000. The trial court awarded the wife approximately $2,000,000. and the hu…
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
- Cowart v. City OF W. Palm Beach, 255 So. 2d 673 (Fla. 1971)
- Anderson v. State, 215 So. 2d 618 (Fla. 4th DCA 1968)
- Vaughn v. Smith, 96 So. 2d 143 (Fla. 1957)
- Bell Williams v. Williams, 172 So. 2d 488 (Fla. 1st DCA 1965)
- Turk v. Gertrude L. Turk, 118 So. 2d 67 (Fla. 3d DCA 1960)
- Invs. Serv. Corp. v. Warlow, 149 So. 2d 910 (Fla. 2d DCA 1963)
- Fisher v. Maas Bros., Inc., 149 So. 2d 910 (Fla. 2d DCA 1963)
- In re Est. of Mamie Rodgers Simpkins, 195 So. 2d 590 (Fla. 1st DCA 1967)
- Sherman v. Herman, 233 So. 2d 138 (Fla. 3d DCA 1970)