YOLANDA JULIEN PRO, APPELLANT,
v.
FRED PRO, APPELLEE
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In this interlocutory appeal from a dissolution of marriage proceeding, the court addresses whether a husband must answer deposition questions about his alleged adultery. The Fourth District Court of Appeal reverses the trial court's ruling that such questions were irrelevant, holding that evidence of misconduct is relevant to alimony determinations under Florida law.
The court held that evidence of adultery and gross misconduct is relevant to alimony determinations as a factor affecting the proper award of alimony under Florida law. The trial court erred in refusing to require the husband to answer the adultery questions, as they were reasonably calculated to lead to admissible evidence. The husband was required to either answer the question or suffer sanctions.
[1] In a dissolution of marriage proceeding, a party's alleged adultery is a relevant factor that may affect the court's determination of alimony.
[2] A trial court has discretion to consider factors beyond economics when determining alimony to achieve equity and justice between the parties.
Previewing 2 of 4 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“The equities, circumstances and the whole marital picture furnish and form the fabric from which the award is to be cut, and if the court limits itself solely to the economics of the matter, it deprives itself of valuable factors that may aid in doing justice to the problem.”
Establishes that courts must consider the full circumstances of the marriage, including misconduct, in alimony determinations rather than limiting analysis to economic factors.
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Join FLexlaw to unlock all legal intelligenceThe husband filed for dissolution of marriage; the wife answered, admitted allegations, and counterclaimed for dissolution and alimony. The husband an…
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DOWNEY, Judge.
This interlocutory appeal involves a refusal of the trial court to require the husband to answer questions on his deposition regarding his alleged adultery.
The appellee-husband sued for a dissolution of marriage. The appellant-wife answered admitting the allegations of the petition and counterclaimed for dissolution and alimony. The appellee answered the counterclaim and affirmatively charged appellant with adultery. Appellant replied to said answer and charged appellee with adultery.
Upon the taking of the appellee’s deposition appellant inquired about appellee’s alleged adulterous conduct, specifically asking whether or not he had sexual relationships with any other person since November 15, 1972. Upon instruction of counsel appellee refused to answer and invoked the Fifth Amendment. On motion to require the appellee to answer said question or have sanctions imposed by striking his pleadings, the learned chancellor ruled that the question need not be answered because it is irrelevant. This appeal is from that order. Like so many other questions involving the philosophy and objectives of “no fault divorce” the precise point presented has not heretofore been considered. However, we believe the answer can be found in the opinion by Judge Walden in Oliver v. Oliver, Fla.App. 1973, 285 So. 2d 638. This court there held that the husband was entitled to adduce testimony of the wife’s misconduct since misconduct is one of the factors which might affect the court’s ultimate determination of the proper award of alimony. With reference to what evidence might be pertinent on the issue of alimony vel non or the amount thereof, the court stated:
“The equities, circumstances and the whole marital picture furnish and form the fabric from which the award is to be cut, and if the court limits itself solely to the economics of the matter, it deprives itself of valuable factors that may aid in doing justice to the problem.”
Section 61.08(2), F.S.1973, authorizes the court, in determining a proper award of alimony, to consider any factor necessary to do equity and justice between the parties.
In the present case, a showing that the husband was guilty of adultery or other gross misconduct, might well he a factor influencing the court’s ultimate determination of the alimony question. Thus, we believe the wife’s inquiry was reasonably calculated to lead to admissible evidence, and it was error not to require the husband either to answer the question as framed or to suffer sanctions. Stockham v. Stockham, Fla. 1964, 168 So. 2d 320; Minor v. Minor, Fla. 1970, 240 So. 2d 301.
We are not unmindful of the decision of Vandervoort v. Vandervoort, Fla.App.1972, 265 So. 2d 77, which affirmed the trial judge’s holding that he had the discretion not to consider the issue of adultery as it might affect the award of alimony under § 61.08, F.S.1973. However, it is our interpretation of said statute that it gives the trial court discretion as to the effect to be given to such evidence in the court’s determination of the alimony issue; it does not give him the unbridled discretion to refuse to hear any evidence on the subject. Such a grant of power could not have been the intent of the legislature, since such an election by the trial court could never be reviewed as an abuse of discretion.
Accordingly, the order appealed from is reversed and the cause is remanded for the entry of an order consistent with this opinion.
WALDEN, J., concurs.
CROSS, J.', dissents without opinion.
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McCLOSKEY v. McCLOSKEY, 359 So. 2d 494 (Fla. 4th DCA 1978)…Wilson, 279 So. 2d 893 (Fla. 4th DCA 1973). We further hold it was not an abuse of discretion for the trial judge to refuse the wife’s attempts to depose her husband on the question of his extra marital adventures. We recognize that in Pro v. Pro, 300 So. 2d 288 (Fla. 4th DCA 1974), we held that evidence of adultery is admissible when the amount of alimony to be given may be at issue. It is true that the sums of money a husband spends on the “other woman” may demonstrate financial capabilities that he prete…
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Canakaris v. Canakaris, 356 So. 2d 858 (Fla. 1st DCA 1978)…a relationship with another woman. This activity of the husband is a factor which properly should be given consideration in relation to the award of alimony to the wife. See McClelland v. McClelland, 318 So. 2d 160 (Fla. 1 DCA 1975), and Pro v. Pro, 300 So. 2d 288 (Fla. 4th DCA 1974). We are not privileged to substitute our judgment on findings of fact for that of the trial court who observed and heard the testimony of the witnesses. I find no error or abuse of discretion in the trial court’s award to the wif…
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McClelland v. McCLELLAND, 318 So. 2d 160 (Fla. 1st DCA 1975)…and evidence of a parent’s persistent adultery could be pertinent to the inquiry. Finally, we agree with the District Court of Appeal, Fourth District, that evidence of adulterous activities may be pertinent to the questions of alimony. Pro v. Pro, 300 So. 2d 288 (Fla.App.4th, 1974). The legislative mandate is that the court “consider any factor necessary to do equity and justice between the parties” in respect to alimony. Sec. 61.08(2), F.S.1973. We do not share appellant’s apprehension that the trial cour…1 / 2
Previewing 3 of 8 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Stockham v. Stockham, 168 So. 2d 320 (Fla. 1964)
- Oliver v. Oliver, 285 So. 2d 638 (Fla. 4th DCA 1973)
- Del O'Neal v. State, 240 So. 2d 301 (Fla. 1970)
- Minor v. Basil F. Minor, 240 So. 2d 301 (Fla. 1970)
- Vandervoort v. Vandervoort, 265 So. 2d 77 (Fla. 3d DCA 1972)