Opinion
March 18, 1947 Rehearing denied April 10, 1947
An appeal from the Circuit Court for Dade County, Marshall C. Wiseheart, Judge.
George J. Bay, for appellant.
Knight, Underwood Cullen, for appellee.
The appellant filed her bill of complaint for separate maintenance for herself and two minor children, pursuant to the. provisions of Section 65.10 F.S. 1941. This Section authorizes a suit by the wife where the "husband having ability to maintain or contribute to the maintenance of his wife or minor children shall fail to do so." In order for the suit to be maintained, the husband must be able to maintain or to contribute to the support of his family and fail. If the husband at the time of the institution of the suit is not withholding support, commensurate with the financial condition and circumstances of the parties, this action is not maintainable.
Here, the Chancellor found that at the time of the institution of the suit and during the progress thereof the appellee was adequately providing for the support of his wife and children and dismissed the bill with prejudice. The finding of the Chancellor is supported by the evidence. Should the facts change, and the husband thereafter withhold support, a new action is thereafter maintainable. The action may be prosecuted whenever, and only whenever, the husband having ability to maintain or contribute "shall fail to do so."
Considerable testimony was taken to determine who was at fault in the separation of the parties, but this question becomes immaterial in view of the finding that the appellee was not withholding support from his family.
Affirmed.
THOMAS, C.J., BUFORD and ADAMS, JJ., concur.