Opinion
No. N-569.
December 10, 1970. Rehearing Denied January 26, 1971.
Appeal from the Circuit Court for Leon County, Ben C. Willis, J.
Cotten, Shivers, Gwynn Daniel, Tallahassee, for appellant.
Edgar C. Booth, Tallahassee, for appellee.
Appellant husband, defendant in the trial court, seeks review by interlocutory appeal of an order requiring him to provide his wife with sufficient funds to procure suitable living quarters outside of the marital home for herself and the minor children or, in the alternative, that he vacate the marital home except for reasonable visitation with the children. The order recites that it is made pursuant to the provisions of our statute relating to alimony pendente lite.
F.S. § 61.071, F.S.A.
It is appellant's position that the challenged order is void and should be reversed because it was rendered by the court without notice to the parties and purports to award temporary alimony, support for and custody of the children to the wife, without evidentiary support in the record as to the needs of the wife or the financial ability of the husband to respond.
From those portions of the original court record which have been brought here for review, it appears that the hearing which resulted in the rendition of the order here complained about was held before the trial court without objection and with both parties represented by their respective counsel. We find from the transcript of the evidentiary hearing held before the court on November 26, 1969, the sworn and undisputed averments of need by the wife contained in her motion for an allowance of support and alimony, and the answer by appellant to interrogatories in which he disclosed his assets and income from the practice of law in Tallahassee, ample proof of need and faculties to sustain the order here questioned.
An examination of the order reveals that it contains no provisions which could be construed as constituting an award to the wife of temporary alimony, custody of and support for the children, or attorney's fees and costs of the suit. These are matters which must necessarily be determined on the basis of evidence to be adduced by the parties in a proper proceeding conducted for that purpose. The order appealed is accordingly affirmed.
CARROLL, DONALD K., Acting C.J., and SPECTOR, J., concur.
ON PETITION FOR REHEARING
Appellant has filed his petition suggesting that the court has overlooked the provisions of Section 61.071, Florida Statutes, F.S.A., by approving an award of temporary alimony in the trial court where there was no showing that appellant, defendant below, was in any way at fault respecting the statutory grounds for divorce. Appellant correctly argues not only the absence, thus far, of proof of fault on his part but directs our attention to the lower court's holding in its interlocutory order of December 3, 1969, that:
"* * * The evidence produced at the hearing does not establish fault on the part of the defendant in the creation of such attitude (deep-seated antagonism to the defendant) on the part of the plaintiff. * * *" (See our opinion in an earlier appearance of this cause in this court reported in 236 So.2d 197.)
In view of the above finding of fact by the lower court, appellant argues that a predicate for granting temporary relief under Section 61.071, Florida Statutes, F.S.A., has not been made. We agree that a husband who is without fault cannot be required to respond under Section 61.071, Florida Statutes, F.S.A., (see Floyd v. Floyd, 91 Fla. 910, 108 So. 896); however, as stated in our opinion herein of December 10, 1970, we do not understand the provision made by the trial court in the order now reviewed to be an award of temporary alimony to the wife. Rather, it seems to us, the court's action below constitutes no more than a temporary provision made by the trial court for the use of the marital home which is owned by both parties to this litigation as an estate by the entireties so that it is no more his than hers. We think that a provision with respect to such property as was made below pending the outcome of the case is well within the trial judge's discretion in the circumstances presented before him.
Subject to the foregoing clarification, the opinion of this court filed herein on December 10, 1970, is adhered to and appellant's petition for rehearing is denied.
WIGGINTON, Acting C.J., and CARROLL, DONALD K., and SPECTOR, JJ., concur.