Terry v. Terry (126 So. 2d 890, 1961)

ALLEN, Chief Judge.

The appellee, as plaintiff in the lower court, filed an action on May 7, 1958, for alimony and separate maintenance unconnected with grounds for divorce, alleging that the parties have been married since 1946 and that extreme cruelty rendered the separation necessary. After a hearing, the wife was granted $250 per month temporary alimony. The plaintiff thereafter amended her complaint and requested a divorce from defendant. On February 12, 1959, a final decree was entered granting plaintiff a divorce, and a property settlement agreed to by the parties was incorporated into the decree. No appeal was taken from this decree. On December 17, 1959, a petition for increase of alimony was filed by the plaintiff. After a hearing on this petition a final decree was entered on February 11, 1960, increasing alimony from $375 per month, which was awarded in the agreement, to $425 per month but denied plaintiff’s request for attorney’s fees. It is from this last order that the present appeal and cross-appeal have been taken.

The parties were married on January 26, 1946, and lived together until April 15, 1958, at which time they separated. Up until 1955, the defendant was an official with Ford Motor Company and was paid a salary of $34,858.61 in 1955. He opened his own business as a local Ford dealer in Pompano Beach in 1956, and apparently was no longer employed by the Ford Motor Company. At the hearing on plaintiff’s original complaint it was established that for 1958 the defendant’s income would be $7,200 salary from his dealership plus a deferred bonus from his prior job of $4,300. It was upon this salary basis that the $250 per month separate maintenance was awarded. At that hearing the wife testified by deposition that her expenses were $304 per month.

The separation agreement entered into by the parties and which was incorporated into the final decree of divorce, provided for the payment by defendant to plaintiff the sum of $375 per month until either she remarried or the agreement was modified by court order.

The defendant’s dealership is incorporated with a net worth as of May, 1958, of $38,628. The corporation was set up in 1956 at which time an $80,000 mortgage on the business was executed to Atlantic Federal Savings & Loan Association. The lan$ on which the business is located is leased by the corporation with an option to purchase in 1966 for $120,000. The total value of buildings and improvements was $138,000 which is being depreciated at the rate of 10% per year. In 1958 the corporation showed a net income of $10,651 after depreciation, taxes and expenses.

During 1959 the defendant received a salary of $12,000 from his corporation and, according to estimates at the time of the hearing on plaintiff’s petition to increase the alimony, the corporation would have a net earning of $29,341 as of the end of 1959.

Also during 1959 the defendant withdrew the following sums for the specified purposes :

Divorce expenses $10,000 (Attorney’s fees-alimony)

Reduction of note to 3,000 Vice-Pres. Hadart to

Reduction of note to 3,000 Universal C.I.T.

Reduction of mortgage 6,000 on business

Down payment on house 3,000 lo

Furniture for house 1,000 O

Shrubbery for house 1,000 K

Ring for new wife 2,000 CO

The defendant contends that plaintiff knew of all of these obligations except for the ring for his new wife. In plaintiff’s bill of particulars she stated that her expenses for 1959 were $374.50 per month, or 50