BERTHA BORDEN
v.
ALEXANDER BORDEN
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The Florida Supreme Court reversed a lower court's denial of alimony to a wife granted a divorce, holding that her attempt to defraud her husband, which resulted in no financial benefit, did not constitute grounds for denying alimony under the statute.
No, the wife's attempt to defraud her husband, which was corrected before any harm occurred, does not forfeit her statutory right to alimony. The statute only specifies adultery as a disqualifying factor for alimony.
“Can it be said that for this she forfeited all right given her by the statute, Sec. 65.08, F.S. '41, F.S.A., which provides: "In every decree of divorce in a suit by the wife, the court shall make such orders touching the maintenance, alimony and suit money of the wife, or any allowance to be made to her, and if any, the security to be given for the same, as from the circumstances of the parties and nature of the case may be fit, equitable and just; but no alimony shall be granted to an adulterous wife."”
This quote establishes the statutory basis for alimony and the specific exclusion for an adulterous wife.
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Join FLexlaw to unlock all legal intelligenceA wife was granted a divorce on the grounds of habitual intemperance. Despite her demonstrated need and the husband's ability to pay, the lower court …
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A decree of divorce was granted appellant on the statutory ground of habitual intemperance. Despite her needs and the husband’s ability to pay, she was denied alimony. She a,ppeals from the ruling against her on the alimony claim. *771The apparent reason for failure to award alimony, as stated by the Master in Chancery, was that the wife attempted to perpetrate a fraud on her husband by inserting her name along with him as grantee in a bill of sale to a boat. Assuming this conduct was wrong, the fact remains the wife actually attained no financial benefit from the attempt. The papers were corrected before any harm resulted. Can it be said that for this she forfeited all right given her by the statute, Sec. 65.08, F.S. ’41, F.S.A., which provides:
“In every decree of divorce in a suit by the wife, the court shall make such orders touching the maintenance, alimony and suit money of the wife, or any allowance to be made to her, and if any, the security to be given for the same, as from the circumstances of the parties and nature of the case may be fit, equitable and just; but no alimony shall be granted to an adulterous wife.”
The only penalty for the wife’s wrongdoing, recognized by the statute, is adultery.
The decree is afiirmed insofar as the divorce is concerned but is reversed as to the alimony feature with directions to make such an award as may appear proper.
So ordered.
CHAPMAN, C. J., TERRELL and BUFORD, JJ., concur.
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Kirby v. Kirby, 111 So. 2d 299 (Fla. 1st DCA 1959)…never has been, and never should be the law. See Chesnut v. Chesnut, 160 Fla. 83, 33 So. 2d 730; Kube v. Kube, 159 Fla. 895, 32 So. 2d 921; Brunner v. Brunner, 159 Fla. 762, 32 So. 2d 736; Knox v. Knox, 159 Fla. 123, 31 So. 2d 159; Borden v. Borden, 156 Fla. 770, 23 So. 2d 529; Randolph v. Randolph, 146 Fla. 491, 1 So. 2d 480. My view does not do violence to the well-established rule that a final decree denying the wife’s prayer for alimony, from which no appeal is taken, cannot be reopened for the purpose…
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Gertrude E. Krieger v. Krieger, 344 So. 2d 1346 (Fla. 1st DCA 1977)…but that of adultery of the wife to grant alimony to the wife. In a concurring opinion by Chief Justice Brown, it was stated that the effect of the court’s opinion was to overrule its prior holding in Phinney v. Phinney, supra. In Borden v. Borden, 156 Fla. 770, 23 So. 2d 529 (1945), a decree of divorce was granted to the wife on the ground of habitual intemperance of the husband. Despite her needs and the husband’s ability to pay, she was denied alimony by the trial court for the apparent reason that she…