Gilbert v. Gilbert
Gilbert v. Gilbert
Opinion of the Court
Defendant, Stan Gilbert, has taken an interlocutory appeal from an order granting the plaintiff-wife alimony pendente lite and attorney’s fees.
Appellant-husband poses the following two points:
1. Where, by appropriate pleadings an issue is raised as to plaintiff-wife’s financial ability to support herself and pay her attorney and defendant’s ability or inability to so do, may the lower court make an award to the plaintiff, without having any evidence whatever as to defendant’s ability before him and without giving defendant an opportunity to offer evidence with respect thereto ?
2. Where, during a hearing on the faculties it appears by the uncontradicted evidence in the record that the plaintiff-wife is guilty of adultery, the Chancellor must make a final finding on that question and if the finding is in favor of the defendant, then temporary allowances should be denied.
The lower court after holding a hearing upon the faculties awarded the wife temporary alimony in the sum of $25.00 per week and temporary attorney’s fees in the sum of $250.00.
As to the first point the limited record brought to our attention in appellant’s appendix reflects that the trial judge had, in a previous hearing, listened to the husband’s testimony as to what he earned, but this Court has not been benefited with a transcript of said hearing. Appellant’s contention that he was not given the opportunity to testify is without merit. The record reflects that shortly prior to the conclusion of the hearing, appellant’s attorney announced to the court: “I think the evi
In considering the second point posed by the husband, we observe at the outset that appellee has not favored this Court with a brief nor has she supplemented the record in any respect. An interlocutory appeal of this type contemplates an adversary proceeding. This Court is placed in the position of reviewing the trial court’s order upon the limited record submitted by appellant-husband.
Mr. Justice Terrell, speaking for the Supreme Court in Floyd v. Floyd,
“ * * * We are concerned only with temporary alimony in this case, which is an allowance made to the wife for her maintenance during the pendency of the action as provided by section 3194, Revised General Statutes of Florida, 1920. This section also carries provision for suit money, but in either event where the wife is the defendant, as is the case here, the allowance of temporary alimony or suit money is under the terms of the statute conditioned on the answer or petition seeming ‘well founded.’
“ * * * It is also well settled that the granting or withholding of temporary alimony and suit money is not a matter of right, but it is within the discretion of the court to whom the application therefor is made; but this discretion is not an arbitrary one; it is a judicial discretion, to be exercised in accordance with established rules of law wisely adapted to the facts apparent in each particular case, and is subject to review by the appellate court. * * *
“ * * * It is unnecessary, however, to inquire into the merits of the principal controversy further than to establish a prima facie showing. * * *
“In some states temporary alimony is allowed as a matter of right, but under our law it is made dependent on the petition therefor being ‘well founded.’ ”
Reversed.
. Rule 4.2, subd. d, Florida Appellate Rules, 32 F.S.A.
. Section 61.071, Florida Statutes, F.S.A.
. Floyd v. Floyd, 91 Fla. 910, 108 So. 896 (1926).
Case-law data current through December 31, 2025. Source: CourtListener bulk data.