ROSE MARIE BURCH, APPELLANT,
v.
JOHN M. BURCH, APPELLEE

Fla. 3d DCA | 1977-11-29
No. 77-1167
Before HENDRY, C. J., and HAVER-FIELD, J., and DREW, E. HARRIS (Ret.), Associate Judge.
352 So. 2d 552 Florida District Court of Appeal, Third District (1977) Positive Treatment
Cited by 4 cases

AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.

Synopsis

In this divorce appeal, the wife challenges the trial court's award of $40 per week alimony for three years and the court's failure to retain jurisdiction for future modifications. The Florida appellate court affirmed, holding that while the alimony amount alone appeared modest, the total equitable distribution package was supported by competent evidence and the trial court did not abuse its discretion.


Holding

The trial court did not abuse its discretion. The $40 weekly alimony, when considered as part of the total equitable distribution package (which provided the wife approximately $750 monthly income for three years and over $600 thereafter), was supported by competent evidence. The trial court was not required to retain jurisdiction over the matter.


Headnotes

[1] An appellate court may not substitute its judgment for that of the trial court regarding the evaluation of testimony and evidence if the trial court's judgment is support…

[2] The appellate court's power to review findings of fact is limited to rejecting testimony and evidence that is inherently incredible and improbable.

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Key Quotes

“It is clear that the function of the trial court is to evaluate and weigh the testimony and evidence based upon its observation of the bearing, demeanor and credibility of the witnesses appearing in the cause. It is not the function of the appellate court to substitute its judgment for that of the trial court through reevaluation of the testimony and evidence from the record on appeal before it.”

Establishes the standard of appellate review—competent evidence test—requiring deference to trial court findings

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Facts & Procedural History

Rose Marie and John M. Burch were married for seventeen years. At dissolution, the wife was forty years old, had been unemployed (except for a brief 1…

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Opinion of the Court
DREW (Ret.), Associate Judge.

DREW (Ret.), Associate Judge.

This interlocutory appeal is taken from a supplemental order to a final judgment dissolving a marriage existing between the petitioner Rose Marie Burch, and her husband, John M. Burch.

The assignments of error present only the questions of whether the trial court abused its discretion in the propriety and amount of the award to the wife of $40.00 per week alimony for a period of three years, and the question of whether the trial court erred in failing to retain jurisdiction over the parties and subject matter for such modifications of the award as might later be justified.

The parties had been married for a period of seventeen years and the wife, at the time of the dissolution, was forty years old; been employed as an airline stewardess in the early years of the marriage but had been unemployed since, except for a short interval in 1972. At the time of the dissolution, the parties had one child aged two years, the custody of whom was awarded to the wife.

Standing alone, we must agree that the award of $40.00 per week where the husband’s income is in excess of $26,000.00 yearly is, indeed, meagre. But such award was only a part of the total picture. In addition to that, the trial court permitted the wife to retain the sum of $18,000.00, which was in a joint account with her husband at the time of the separation, $9,000.00 of which was, admittedly, the property of the husband; directed the husband to pay her $40,000.00 in cash, which was one-half the value of the home of the parties owned by them jointly; awarded the wife an oriental rug, a 1968 Mustang automobile; ordered the husband to pay the wife $60.00 per week for support of the minor child and to keep in full force and effect hospitalization, dental, and major medical insurance for the benefit of the child, and to pay, from time to time, all reasonable and necessary medical, dental, hospital, and prescription pharmaceutical bills incurred on behalf of the child. Invested safely, the amount received in cash by the wife would produce an additional $300.00 to $400.00 monthly, giving the wife a total income [including the child support payments of $60.00 weekly] of about $750.00 per month for three years and over $600.00 per month thereafter. While we might be of the view that the award of rehabilitative alimony was not proper here and that, if proper, the amount awarded was insufficient, we cannot say that the judgment is not supported by “competent evidence” which is the test laid down by the Supreme Court in Shaw v. Shaw, 334 So. 2d 13 (Fla.1976) to overturn the trial court at the appellate level. There, the court said:

* * * * *

“* * * It is clear that the function of the trial court is to evaluate and weigh the testimony and evidence based upon its observation of the bearing, demeanor and credibility of the witnesses appearing in the cause. It is not the function of the appellate court to substitute its judgment for that of the trial court through reevaluation of the testimony and evidence from the record on appeal before it. That test, as pointed out in Westerman, supra, [Westerman v. Shell’s City Inc., 265 So. 2d 43 (Fla.)], is whether the judgment of the trial court is supported by competent evidence. * * *”

* * He * 5}! *

While we have power under Shaw to reject “inherently incredible and improbable testimony and evidence”, that limitation on our power to review findings of fact of trial judges prevents, in many instances, the correction [as the first reviewing court] of results which might appear to us to be unjust or contrary to the great weight or probative value of the evidence. We are of the view that Shaw prevents a remand of this cause for an increase in the amount of award or to reconsider the question of the propriety of rehabilitative alimony under the facts here. Moreover, Shaw is controlling on the question of reservation of jurisdiction, for there it was said, under very similar facts:

* * * * * *

“* * * Although the appellate court concluded that it would be ‘prudent’ in its judgment to include such a reservation of jurisdiction, it was not error for the trial court to fail to do so. Goldfarb v. Robertson, 82 So. 2d 504, 506 (Fla.1955).”

**

Affirmed.


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Citator

Cited By

  • Sigrun Anke Merrill v. Merrill, 362 So. 2d 41 (Fla. 3d DCA 1978)
    …PER CURIAM. Affirmed. See Helman v. Seaboard Coast Line Railroad Co., 349 So. 2d 1187 (Fla.1977); Herzog v. Herzog, 346 So. 2d 56 (Fla.1977); Shaw v. Shaw, 334 So. 2d 13 (Fla.1976); Burch v. Burch, 352 So. 2d 552 (Fla.3d DCA 1977); and Koeppel v. Koeppel, 351 So. 2d 766 (Fla.3d DCA 1977).…
  • Redmond v. Prosper, Inc., 364 So. 2d 812 (Fla. 3d DCA 1978)
    …ed by the defendant, Thomas Redmond. Such findings, which we hold are supported by competent substantial evidence, are not to be disturbed on appeal. Shaw v. Shaw, 334 So. 2d 13 (Fla.1976); Herzog v. Herzog, 346 So. 2d 56 (Fla.1977); Burch v. Burch, 352 So. 2d 552 (Fla.3d DCA 1977). The trial court was not shown to have applied a wrong rule as to the damages. The measure used was the excess of the contract sales price over the market value as of the time of the breach, less the amount previously paid. Pembro…

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