PHILIP DASH, APPELLANT,
v.
JUDY PEARL DASH, APPELLEE

Fla. 3d DCA | 1974-12-31
No. 74-1052
Before HENDRY, HAVERFIELD and NATHAN, JJ.
306 So. 2d 543 Florida District Court of Appeal, Third District (1974) Positive Treatment
Cited by 8 cases

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Synopsis

In this second appeal of a dissolution of marriage case, the court reversed a lump sum alimony award of $250,000 entered by a new trial judge on remand, holding that the successor judge improperly relied solely on the cold appellate record without hearing additional testimony to fairly determine the appropriate permanent alimony amount.


Holding

The court held that it was improper for the new trial judge to determine the alimony award based solely on the appellate record. A successor judge in an adequate position to rely only on the cold record cannot fairly determine the amount of permanent alimony without hearing additional testimony regarding relevant factors.


Headnotes

[1] A successor judge, unacquainted with the prior testimony and proceedings, cannot properly determine an alimony award based solely on the appellate record.

[2] A successor judge must have an adequate basis, including potentially new testimony, to determine alimony awards considering the parties' needs, ability to pay, and marita…

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Key Quotes

“We think it was improper for a new trial judge, who was unacquainted with the earlier testimony and other proceedings in this case, simply to make his determination of a new alimony award based upon the appellate record.”

Establishes the core holding that a successor judge cannot rely solely on the appellate record when unfamiliar with the case

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Facts & Procedural History

Philip and Judy Pearl Dash were divorced by final judgment on December 6, 1972. In the first appeal, this court reversed an award of rehabilitative al…

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Opinion of the Court
PER CURIAM.

PER CURIAM.

This is the second time this case has appeared before us. In our previous opinion, at 284 So. 2d 407, we set forth the facts in some detail.

In the earlier case, appealed by Mrs. Dash, we reversed an award of rehabilitative alimony to the wife, determining essentially that Mrs. Dash was not a proper subject for rehabilitative alimony.

The cause was remanded to the trial court with directions to assess permanent alimony either in installments or in lump sum.

Thereafter, upon remand, the case was considered by a different trial judge from the judge who originally tried the case and who entered the order previously appealed to this court, because the predecessor judge had retired.

The new judge entered the order now under review, styled a “Final Order of Assessment,” which reads:

“This court has considered this cause, in accordance with the mandate of October 24, 1973, filed by the District Court of Appeal, Third District. It has considered argument of counsel for the respective parties, memoranda and analysis of record submitted by the respective parties, and has read, and considered, the record of this cause.

“The Court finds, as a matter of law, that any order assessing alimony should be made on the basis of the record considered by the Appellate Court. Any contention of the right for modification of an award based upon the status of the parties as of the Final Judgment of Dissolution (December 6, 1972), may be filed as provided in Florida Statute 61.-14.

“It is accordingly, ORDERED and ADJUDGED as follows:

“1. That the plaintiff, JUDY PEARL DASH, be, and she is hereby awarded the sum of TWO HUNDRED FIFTY THOUSAND DOLLARS ($250,000.00) as Lump Sum alimony in this cause payable at the rate of $350.00 per week.

“2. The Defendant, PHILIP DASH, is required to secure the foregoing award in such manner as may be mutually acceptable to counsel for the respective parties. Counsel are directed to submit an Order for approval of this Court providing for the manner in which such security shall be provided within ten (10) days of the date hereof. . . .”

The husband, Philip Dash, has taken this appeal contending first that the trial court’s new alimony award was an abuse of discretion. Secondly, appellant argues that the award was unsupported by competent, substantial evidence.

We find merit to this latter contention, and accordingly reverse the judgment.

We think it was improper for a new trial judge, who was unacquainted with the earlier testimony and other proceedings in this case, simply to make his determination of a new alimony award based upon the appellate record. See, Bradford v. Foundation & Marine Construction Co., Fla. App.1966, 182 So. 2d 447.

Over a year and a half had passed since the original final decree had been entered when the new judge entered the order which is the subject of this appeal. In our opinion, the successor judge was not in an adequate position to rely only on the cold record in order to reach a fair determina tion of the amount which should be awarded as permanent alimony in light of the wife’s needs, the husband’s ability to pay and the standard of living maintained during the marriage.

Therefore, it is our conclusion that the order appealed must be reversed. The cause is remanded for taking additional testimony, and for rendering of findings and entering of judgment in accordance with our earlier mandate. The parties may wish to stipulate to any portions of the original record which are relevant to a determination in this case.

Reversed and remanded.


Cases With Similar Vibessemantic neighbors from the corpus


Citator

Cited By

  • Delehant v. Dorothea Margaret Delehant, 409 So. 2d 213 (Fla. 4th DCA 1982)
    …Associate Judge, concur. . See our earlier opinion in Delehant v. Delehant, 383 So. 2d 231 (Fla. 4th DCA 1980). . See Bradford v. Foundation & Marine Constr. Co., 182 So. 2d 447 (Fla.2d DCA), cert. denied, 188 So. 2d 821 (Fla.1966); Dash v. Dash, 306 So. 2d 543 (Fla.3d DCA 1974).…
  • Mirth K. Brown v. Brown, 453 So. 2d 149 (Fla. 1st DCA 1984)
    …der retaining jurisdiction must be reversed because under the circumstances, the successor judge should have conducted a trial de novo on the issue of retention of jurisdiction. Delehant v. Delehant, 409 So. 2d 213 (Fla. 4th DCA 1982); Dash v. Dash, 306 So. 2d 543 (Fla. 3d DCA 1974); and see generally Courts and Judges, 13 Fla.Jur.2d, Section 230, page 356. We wish to stress that in this instance, the successor judge should not be faulted for his failure to conduct a more extensive hearing on the issue of re…
  • Norton Kent Euart v. Fernsell, 436 So. 2d 422 (Fla. 4th DCA 1983)
    …ctice is anomalous and must be disapproved. See Delehant v. Delehant, 409 So. 2d 213 (Fla. 4th DCA 1982); Bradford v. Foundation & Marine Construction Co., 182 So. 2d 447 (Fla. 2d DCA 1966), cert. denied, 188 So. 2d 821 (Fla.1966); and Dash v. Dash, 306 So. 2d 543 (Fla. 3d DCA 1974). Accordingly, we grant the petition for writ of certiorari and quash the order. However, we do so without prejudice to respondent to obtain a proper order from the trial judge who conducted the hearing. Perhaps in the interest o…

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