GLORIA ESCOBAR, APPELLANT,
v.
CHARLES A. ESCOBAR, APPELLEE
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The court held that the trial judge did not err in declining to hear testimony regarding the husband's adultery when determining alimony, as the wife did not demonstrate need or the husband's ability to pay.
The former wife appealed a judgment dissolving her marriage, challenging the alimony and child visitation provisions. The trial court declined to hear…
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PEARSON, Judge.
This appeal is from a judgment dissolving the marriage of the parties. The former wife, as appellant, assigns error upon the alimony and child visitation provisions of the judgment.
The trial judge, having reached the conclusion from the evidence that the marriage was irretrievably broken, declined to hear testimony from the wife about the husband’s alleged adultery. The husband did not seek alimony, therefore the ruling did not violate section 61.08, Fla.Stat. which provides: “The court may consider the adultery of a spouse and the circumstances thereof in determining whether alimony shall be awarded to such spouse and the amount of alimony . . . ” [emphasis supplied] Further, no error appears under our recent holding in Stafford v. Stafford, Fla. App. 1974, 294 So. 2d 25, where we stated: “We hold that the court cannot preclude a party to a dissolution action from raising the issue of adultery as a mitigating defense to the awarding of alimony and the amount thereof.” Here the wife'hoped to obtain alimony by showing her husband’s adultery. Since any alimony must be based upon the wife’s demonstrated need and the husband’s ability to pay no error appears.
Appellant’s second point urges that it was error for the court not to take evidence on the issue of the proper extent of the father’s right to visitation. The determination of such right is particularly within the trial judge’s discretion. Orlowitz v. Orlowitz, Fla.App. 1965, 178 So. 2d 878. It is a matter that must be decided from all the circumstances and in which the welfare of the child must be the primary consideration. Here, the appellant-wife has not shown an abuse of discretion, especially in view of the fact that she failed to introduce or tender any evidence other than that concerning the issue of dissolution and financial considerations.
Affirmed.
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Noah v. Noah, 491 So. 2d 1124 (Fla. 1986)…illiamson did not involve the issue of what role, if any, a spouse’s adultery should play in dissolution proceedings, our jurisdiction was predicated on conflict with Claughton v. Claughton, 344 So. 2d 944 (Fla. 3d DCA 1977), and Escobar v. Escobar, 300 So. 2d 702 (Fla. 3d DCA 1974), both of which explicitly dealt with that issue. Our discussion in Williamson of Escobar centered on the proper interpretation of section 61.08(1), Florida Statutes (1973), which provided, in relevant part: The court may consider…
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Williamson v. Veva C. Williamson, 367 So. 2d 1016 (Fla. 1979)…Court of Appeal, First District, reported at 353 So. 2d 880, which is alleged to be in conflict with the decisions of the District Court of Appeal, Third District, in Claughton v. Claughton, 344 So. 2d 944 (Fla. 3d DCA 1977), and Escobar v. Escobar, 300 So. 2d 702 (Fla. 3d DCA 1974). We have jurisdiction pursuant to article V, section 3(b)(3), Florida Constitution. Petitioner, Ollie R. Williamson, filed for dissolution of his marriage to respondent, Veva C. Williamson, in the Circuit Court for Bay County, Fl…
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Brown v. Brown, 315 So. 2d 15 (Fla. 3d DCA 1975)…payments on jointly held property. The trial judge has broad discretion in determining the father’s right to visitation, taking into consideration the children’s welfare and best interest under the circumstances. Escobar v. Escobar, Fla.App.1974, 300 So. 2d 702. We find no abuse of discretion in this regard. A party challenging a child support or alimony ruling has the burden of clearly showing that it represents an abuse of discretion. Morse v. Morse, Fla.App.1966, 191 So. 2d 449. Since this is a matter…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Forney B. Stafford v. Stafford, 294 So. 2d 25 (Fla. 3d DCA 1974)
- Lauderhill Dev. Corp. v. Lowery, 178 So. 2d 878 (Fla. 3d DCA 1965)