author: HOBSON, Acting Chief Judge.

text:
    Rita L. ADKINS et al., Appellants, v. SEABOARD COAST LINE RAILROAD COMPANY et al., Appellees.
    No. 76-1364.
    District Court of Appeal of Florida, Second District.
    Nov. 2, 1977.
    As Modified On Denial of Rehearing Nov. 30, 1977.

      Nolan Carter, Orlando, for appellants.
    Julian Clarkson, Fort Myers, for appel-lees.
   HOBSON, Acting Chief Judge.

Appellants/plaintiffs seek reversal of the final judgment entered in their wrongful death action instituted against appel-lees/defendants. The final judgment reduced the jury’s award of $100,000 damages to the decedent’s estate to $20,000 because the jury’s special verdict found the decedent 80% negligent. The final judgment also conformed to the jury’s failure to award damages to the decedent’s survivors. Appellants argue that they should be accorded a new trial on the issue of damages because inconsistent instructions may have confused the jury. We agree. Accordingly, we reverse the final judgment and remand the cause for retrial.

The decedent was killed when the vehicle he was driving was struck broadside by the railroad’s freight train. At the time of the mishap the city’s high school, which was situated adjacent to the railroad tracks, was releasing students. The exiting students backed up traffic on both sides of the tracks, causing traffic to proceed very slowly. Despite audible warnings from the approaching train, the decedent slowly drove his vehicle onto the tracks. Both Hennecy, the train’s engineer, and Grimes, the brakeman acting as a look out, admitted knowing that the train was approaching a school zone and admitted noticing the traffic situation. Nonetheless, the train did not slow its 30-35 m.p.h. speed. The engineer also admitted seeing the decedent’s ear approaching but assumed it would stop before entering onto the tracks. The engineer engaged the train’s emergency braking mechanism when the decedent’s car pulled onto the tracks. However, it was not until over 1,000 feet past the point of impact with the automobile that the train grinded to a halt. Testimony at trial also indicated that a brakeman for appellee/railroad who was serving as a look out at the time of the accident had not received any special training on the safety aspects of the job he was performing.

Appellants argue that the estate is entitled to a new trial on damages because conflicting instructions on whether the jury should reduce the award by the decedent’s proportion of comparative negligence may have confused the jury. The conflict arises between Florida Standard Jury Instruction 6.5(c) and the special verdict form submitted to the jury. The trial court instructed the jury that its awards should be “reduced in the same proportion that the negligence of William Adkins contributed to his death.” The special verdict instructed the jury: “DO NOT REDUCE THESE SUMS BY ANY PERCENTAGE.” The jury’s verdict found the decedent 80% negligent and set damages at $100,000. Approximately four months after return of the verdict, the trial court entered its order awarding the decedent’s estate $20,000. The reduction was apparently predicated upon a finding that the jury must have followed the instructions on the verdict form and rejected the court’s oral instruction. We rule that this finding was unsupported by the record and that the trial court committed reversible error in entering judgment upon the reduced award.

We recognize the general rule that when the intent of a jury is apparent, a trial court does not err in entering judgment on the verdict in accordance with the jury’s intent. Cory v. Greyhound Lines, Inc., 257 So.2d 36, 40 (Fla.1972). However, where the jury is given contradictory instructions which may result in a conclusion which the jury may not otherwise have reached, there is no way to determine how the jury reached its verdict or what it intended. When a reviewing court is of the opinion that conflicting instructions may have misled or confused the jury, the cause must be remanded for new trial. Schlein v. Florida East Coast Railway Co., 339 So.2d 1142 (Fla. 3d DCA 1976).

In the instant case, it is not disputed that the jury instructions regarding reduction of damages were directly contradictory. There is nothing in the record indicating which of the two instructions the jury followed. In light of the nature of the damages recoverable and evidence admitted to establish these damages, and with due regard for the bifurcated function of the court and the jury, we cannot find that the amount of damages awarded by the jury was necessarily prior to reduction. We do find that the conflicting instructions may have confused the jury and that there is no acceptable way of now determining how the jury reached its verdict.

Appellants also argue that the survivors are entitled to a new trial on the issue of damages. They attack the final judgment’s embodiment of the jury’s failure to award damages to the survivors. Appellants’ contention that the jury instructions also confused the jury about the manner of awarding damages to the survivors is based upon the following instructions:

“After having determined in dollars the total amount of damages sustained by the decedent’s estate and survivors as a result of his death, you should award such total amount to the decedent’s personal representative or for the benefit of his estate and survivors unless you find that William Adkins was negligent and that such negligence contributed as a legal cause to his death.
“Now, if you find that William Adkins was negligent and that such negligence contributed as a legal cause to his death, you will award to the decedent’s personal representative for the benefit of his estate and survivors the total amount of the damages sustained by the estate and the survivors reduced in the same proportion that the negligence of William Adkins contributed to his death.” (emphasis supplied)

Another instruction to this effect was also repeated when the trial judge paraphrased the general verdict form. These instructions are said to conflict with the instruction to the jury that “any amounts that you award the personal representative for the estate and for each survivor shall be separately stated in your verdict.” The special verdict form had separate blanks for specification of the damages to each surviv- or. The jury entered the $100,000 award in the blank provided for specification of damages to the estate but made no entry in the separate blanks for the survivors’ damages. The trial court entered judgment on this verdict, under which the appellants take nothing as survivors.

The repeated instructions indicated to the jury that it may award the total damages to the decedent’s personal representative for the benefit of his estate and survivors. These charges conflicted with the instruction [as well as Section 768.22, Florida Statutes (1975)] that the jury should separately state the award for each survivor. We have no way to now determine whether the jury intended to award the survivors zero damages, or to award the survivors’ damages to the personal representative for the benefit of the survivors without a jury apportionment. If the former was the jury’s actual intent, they could have clearly so indicated by entering a zero or the words “zero” or “none” in the empty blanks. Nix v. Summitt, 52 So.2d 419 (Fla.1951). We cannot make these determinations for the jury. See Atlantic Coast Line Railroad Co. v. Turpak, 225 So.2d 340 (Fla. 2d DCA 1969). Since the jury instructions may have resulted in a conclusion other than that which the jury intended, no judgment entered on the verdict would be proper. The issue of the survivors’ damages must be re-litigated. Therefore, we need not consider appellants’ contention that an award of zero damages to the survivors would be necessarily inconsistent with an award in favor of the estate.

The appellees challenge whether the error in the form of the verdict was properly preserved for appeal. We note that the appellants had no objection to the trial court’s statement after the publication of the verdict that: “The court is going to let the (verdict) stand, $100,000.” At that time the appellants apparently were not unhappy with their expected $100,000 award. However, four months later, when the trial court entered a judgment reducing the award to $20,000 and precluding the survivors from sharing in it, the appellants first had cause to object. To require the appellants to have predicted the reduction and to have objected at trial would be unreasonable.

This is not a case such as Savoca v. Sherry Frontenac Hotel Operating Co., Inc., 346 So.2d 1207 (Fla. 3d DCA 1977), where the objections to a reduction of an award after inconsistent instructions and to the failure of the jury to award damages on a derivative claim were not preserved. In Savoca, these objections were noted, even argued, prior to discharge of the jury and appellant’s counsel more than acquiesced in the trial court’s resolution of the disputes.

Appellants’ third point on appeal regards the admission of the testimony of the decedent’s alleged paramour with whom decedent had been living for six months prior to his death. The witness testified that shortly before his death the decedent promised that he would divorce his wife and marry the witness. She also testified to the decedent’s credible explanation for having to wait. Appellants characterize this statement by the decedent as “sales talk,” and argue that such evidence is not sufficiently probative of the declarant’s intent without a manifestation of that intent in some affirmative action. This point presents what appears to be a question of first impression in this state. The question is whether evidence that the decedent was going to divorce his wife is admissible in a wrongful death action brought by the decedent’s wife. Notwithstanding appellants’ observation, we find the evidence sufficiently probative of the decedent’s intent and probable future actions to warrant consideration by the jury in assessing the survivors’ damages.

The evidence is logically relevant. The wrongful death statute provides for recovery by the decedent’s survivors for their sentimental losses (i. e., loss of the decedent’s companionship and protection and for the survivors’ mental pain and suffering) and for their economic losses (i. e., their loss of support and services). Section 768.21, Fla.Stat. (1975). Evidence of domestic discord involving the decedent is probative of the extent of the survivors’ mental pain and suffering and their loss of the decedent’s companionship and protection. In Collins v. Florida Towing Corp., 262 So.2d 459 (Fla. 1st DCA 1972), a case analogous to the instant situation, the father of the deceased minor was seeking damages for the “intense mental pain and anguish” which he allegedly suffered at the loss of his child. He disputed the admission of evidence that the father had abandoned the child and the child’s mother, and had left them no means by which he could be contacted. The First District held that the evidence was properly admitted. The plaintiff’s regard for the welfare of his child was properly considered by the jury in assessing damages for the plaintiff’s mental pain and suffering.

Evidence of the decedent’s intent to divorce his wife and terminate voluntary support of his survivors is probative of the survivors’ economic losses. We hasten to add that fairness to the survivors requires that the trial court admit proper evidence offered by the survivors to establish the amount of support which the decedent would have been legally obligated to contribute in the event of a divorce. The financial support generously contributed by a faithful and loving husband and father may be much greater than the begrudging remittances of a person compelled by court order to provide, at most, adequate support to his wife through temporary or permanent alimony, and to his children during their minority. This determination, however, is for the jury. Evidence on this issue is always subject to the rules of evidence limiting unnecessary evidence on a collateral issue.

A contrary ruling would authorize the perpetration of fraud upon the jury. In the case of Florida Central and Penninsular Railroad Co. v. Foxworth, 41 Fla. 1, 25 So. 338 (1899), the Florida Supreme Court recognized the importance of allowing the presentation of an honest and accurate picture of the marriage relationship between the decedent and the surviving spouse. There the court observed that the “jury may properly take into consideration the loss of the comfort, protection, and society of the husband in light of all the evidence in the case relating to . the marital relations between the parties at the time of and prior to his death.” (Emphasis added) 25 So. at 348. We cannot allow the wrongful death claimant to paint a rosy picture of the marital relationship while the defendants’ hands are bound, preventing rebuttal. A jury should not be misled to believe that a marriage at or past its breaking point was as zealous as a honeymoon merely because the marriage partners had not sought legal dissolution prior to the decedent’s death. We acknowledge the potential for abuse of evidence of domestic discord. Our legal system, however, provides many safeguards against such abuse. Impeachment of the witness testifying to the decedent’s intent to divorce his wife is the established method of testing whether the. decedent actually expressed such an intent. Rebuttal evidence can be presented to show that if the decedent expressed such an intent, it was not his true intent, or to show that he later changed his mind or would not have acted in accordance with this expressed intent. A motion in limine would test not only threshold relevancy and whether a jury could reasonably believe that under the circumstances the expressed intent was honest, but also whether the probative value of the evidence is outweighed by danger of unfair prejudice.

Our decision that evidence of domestic relationship may be admissible is not out of step with the modern trend of authority. The well-reasoned opinion in the case of Allen v. Riedel, 425 S.W.2d 665 (Tex.Civ.App.1968) admitted such evidence on the issue of economic and sentimental losses in a wrongful death action brought by the surviving wife and child. Accord, Peterson v. Pete-Erikson Co., 186 Minn. 583, 244 N.W. 68 (1932). See Annot. 79 A.L.R.2d 819 (1968), 22 Am.Jur. Death § 173 (1965).

Finally, the appellees argue that the trial court erred in denying appellees’ motion for a directed verdict. The testimony elicited at trial supports the conclusion that the engineer and brakeman saw the traffic conditions and knew or should have known of the hazard but failed to exercise the due care of reducing the train’s speed accordingly. There was substantial competent evidence that the appellees were negligent and that this negligence was a legal cause of the decedent’s untimely demise. The trial court did not err in submitting the issue of the appellees’ liability to the jury.

Therefore, we find that the trial court erred in giving the jury contradictory instructions, but did not err in admitting evidence of the decedent’s domestic relationship or in denying appellees’ motion for directed verdict. Since the error bears only on the issue of damages, the interests of justice do not require re-litigation of the issue of liability. Cf. Erwin v. Chaney, 160 So.2d 139 (Fla. 1st DCA 1964).

The final judgment entered in the court below is reversed and the case is remanded for a new trial on the issue of the amount of total damages suffered by the appellants. Once the total amount of damages has been determined, the trial judge will reduce the total damages by the decedent’s previously determined comparative negligence (80%).

GRIMES and SCHEB, JJ., concur.

      . For instance, in the instant case the survivors introduced at trial a moving letter written by the decedent shortly before his death which indicated a rebirth of his love for his wife and family.


source: Caselaw Access Project

author: GRIMES, Acting Chief Judge.

license: Public Domain

text:
    Louise TAYLOR, Jack C. Betz and Roger Richmond, as Trustees and as Individuals, Appellants, v. RICHMOND’S NEW APPROACH ASSOCIATION, INC., a Florida Corporation, Appellee.
    No. 77-76.
    District Court of Appeal of Florida, Second District.
    Nov. 4, 1977.
    Rehearing Denied Dec. 8, 1977.
    Wayne C. Hall, of Strode, Hereford & Taylor, Sarasota, for appellants.
    J. Wayne Falbey, of Grace, Falbey & Couse, P.A., Fort Myers, for appellee.
   GRIMES, Acting Chief Judge.

The question involved in this appeal is whether the provisions of Section 737.306, Florida Statutes (1975), are applicable to trustees holding property under an Illinois land trust.

Builders of the South, Inc. owned certain real property upon which it built a condominium. The property was then conveyed to Louise Taylor, Jack C. Betz, and Roger Richmond, as trustees. The deed recited that the conveyance was made in conformance with the provisions of Section 689.071, Florida Statutes (1971), and that the interests of the beneficiaries shall be deemed personal property. The deed said nothing about limitations on the liability of the trustees. Betz and Richmond were respectively president and secretary of Builders of the South, Inc.

The trustees caused a second condominium to be built on the property. Ultimately, control of the condominium association passed from the developers into the hands of the unit owners, and the trust became liable to the association for certain obligations, some of which arose out of contract and some of which occurred by virtue of assessments against unsold condominium units. The assets of the trust were finally lost through a mortgage foreclosure. The association later obtained a judgment against the trustees in their individual capacity. The trustees have appealed this judgment.

The so-called Illinois land trust contemplates that title to real property be taken in the name of a trustee under a recorded deed of trust while a second unrecorded agreement between the trustee and the beneficiaries declares the trustee to be vested with full legal and equitable title subject to certain specified rights of the beneficiaries which are declared to be personal property of the beneficiaries. See Florida Real Property Practice II, § 11.32 (Fla. Bar Continuing Legal Educ. Practice Manual, 1975). Prior to 1963 it was believed that an Illinois land trust might fail in Florida because of the statute of uses. See McGriff v. McGill, 62 So.2d 28 (Fla.1952); Elvins v. Seestedt, 141 Fla. 266, 193 So. 54 (1940).

In 1963 our legislature insured the validity of the Illinois land trust by the enactment of Chapter 63-468, Laws of Florida, which has now become Section 689.071, Florida Statutes (1975). The preamble to Chapter 63-468 recites that the Illinois land trust was a method by which developers had successfully attracted the investment of new capital and it was deemed desirable to encourage the growth of Florida land development by sanctioning the use of this method of doing business. The statute permits the trustee to convey freely without the joinder of spouses or beneficiaries and allows third persons to deal with the trustee without having to inquire into his authority. Grammer v. Roman, 174 So.2d 443 (Fla.2d DCA 1965).

Traditionally, trustees of all kinds have been held to be personally liable to third persons on obligations incurred on behalf of their trust unless there is a specific agreement against personal liability. Ill A. Scott, The Law of Trusts, § 262. (3rd ed. 1967). Of course, the trustees are entitled to reimbursement from the trust if the obligation was properly incurred in the administration of the trust. Scott, supra. However, the common law rule with respect to personal liability of trustees was changed in Florida in 1975 by the passage of Section 737.306, Florida Statutes (1975), which reads as follows:

“737.306 Personal liability of trustee to third parties.—
(1) Unless otherwise provided in the contract, a trustee is not personally liable on contracts, except contracts for attorneys’ fees, properly entered into in his fiduciary capacity in the course of administration of the trust estate unless he fails to reveal his representative capacity and identify the trust estate in the contract.
(2) A trustee is personally liable for obligations arising from ownership or control of property of the trust estate or for torts committed in the course of administration of the trust estate only if he is personally at fault.
(3) Claims based on contracts, except contracts for attorneys’ fees, entered into by a trustee in his fiduciary capacity, on obligations arising from ownership or control of the trust estate, or on torts committed in the course of trust administration may be asserted against the trust estate by proceeding against the trustee in his fiduciary capacity, whether or not the trustee is personally liable.”

The trustees in this case contend that they are protected from personal liability under this statute. We cannot agree.

Section 737.306, Florida Statutes (1975), was enacted as part of the new Probate Code. This section was taken from Section 7-306 of the Uniform Probate Code, though slightly amended in particulars which are not relevant to our discussion. The comment which accompanies Section 7-306 in the Uniform Probate Code states:

“The purpose of this section is to make the liability of the trust and trustee the same as that of the decedent’s estate and personal representative.” 8 U.L.A. Estate, Probate and Related Laws at 587 (1972).

Thus, in the passage of Section 737.306, we believe the legislature intended to protect those acting as trustees under the classical testamentary or inter vivos trust in which the extent of the trust property, the authority of the trustee, and the identity of the beneficiaries are more likely to be known. In the absence of a more specific pronouncement, we do not believe the legislature intended to extend this protection to Florida land developers operating under an Illinois land trust. To hold otherwise would give the developers limited liability substantially equivalent to that of a corporation without the necessity of formal incorporation.

In addition to the distinctive purpose for which an Illinois land trust is normally established, there are some conceptual differences between this kind of trust and the typical testamentary or inter vivos trust. In the case of an ordinary trust, if the trust property is real property the interest of the beneficiaries is usually considered to be real property. Restatement (Second) of Trusts § 130 (1959). Under Section 689.071, the interest of the beneficiaries in an Illinois land trust is considered personal property if so specified. Moreover, this statute prescribes that the trustee is vested with full rights of ownership over the real property. If the trustee of an Illinois land trust can deal with the trust property as if it were his own, we believe it logical that he be subject to personal liability for obligations which he has incurred to third persons in his administration of the trust.

There was no indication that the trustees contractually sought to limit their liability in any of their dealings which resulted in the obligations imposed upon them in this case. With respect to the assessments, Section 711.15(1), Florida Statutes (1975), specifies that a unit owner, regardless of how title is acquired, shall be liable for all assessments coming due while he is owner of the unit. Therefore, since the trustees were not afforded protection under Section 737.306, Florida Statutes (1975), the court properly held them to be personally liable.

AFFIRMED.

OTT and RYDER, JJ., concur.


author: NATHAN, Judge.

text:
    William Dwain WOODARD, Appellant, v. The STATE of Florida, Appellee.
    Nos. 76-600, 77-820.
    District Court of Appeal of Florida, Third District.
    Nov. 8, 1977.
    Rehearing Denied Dec. 7, 1977.

      Bennett H. Brummer, Public Defender and Irv J. Lamel, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., and Linda Collins Hertz, Asst. Atty. Gen., for appellee.
    Before PEARSON, HAVERFIELD and NATHAN, JJ.
   NATHAN, Judge.

This cause comes before us on consolidated appeals which devolve upon the single proceeding by which appellant’s probation was revoked and sentence was imposed. We must decide whether the court’s failure to advise appellant of his right to counsel and his resulting lack of counsel at this proceeding constitute violations of appellant’s constitutional rights sufficient .to require reversal. We hold that the sentencing procedure was constitutionally inadequate, but we affirm the revocation of probation.

In October of 1969 appellant, after entering guilty pleas, was adjudged guilty on eighteen counts. He was placed on probation by the trial judge, the term of probation to begin when he was released from the Georgia prison in which he was then incarcerated. His whereabouts upon his release by the Georgia authorities were unknown and probation officials filed an affidavit of violation of probation. Another affidavit was filed on January 8, 1976, the same date as appellant’s probation revocation hearing, setting forth additional probation violations based on convictions for similar crimes to those for which appellant had been placed on probation. At the hearing, the following discourse occurred:

THE COURT: All right. William Woodard, it is alleged here that you have violated your probation by having been convicted in Hillsborough County on three charges of forgery or uttering forged instruments. Do you admit or deny that?
WOODARD: That’s true.
THE COURT: Yes, I think in your own motion you set forth those facts.
PROBATION OFFICER: Your honor, if I may — the last conviction was in Osceola County.
THE COURT: One in Hillsborough, two in Osceola.
PROBATION OFFICER: One in Hills-borough in ’74, the others in Osceola in ’75. Three counts.
THE COURT: Is that right, Mr. Woodard?
WOODARD: That’s right.
THE COURT: All right. Probation is revoked.

Thereafter the court terminated appellant’s probation unsatisfactorily on all but the two cases which are the subject of this appeal and imposed sentences of two years imprisonment in one case and three years on the other. On February 8, 1976, appellant filed a pro se motion to vacate judgment and sentence, alleging, inter alia, that he was denied counsel at his probation revocation hearing. The motion was denied without an evidentiary hearing.

A pro se notice of appeal was filed, the Public Defender was appointed to represent appellant, and this court granted him a belated appeal of his probation revocation, consolidating it with his appeal of the trial court’s denial of his motion to vacate judgment and sentence.

The United States Supreme Court, in Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973) held that a state is not under a constitutional duty to provide counsel for indigents in all probation revocation hearings, and implied that the need is not usually present where probationer has admitted the violations with which he is charged. In so doing, the Court limited its prior holding in Mempa v. Rhay, 389 U.S. 128, 88 S.Ct. 254, 19 L.Ed.2d 336, to the proposition that an indigent probationer is entitled to appointed counsel at sentencing even if this occurs at the same hearing in which probation is revoked.

In the instant situation, appellant already had been convicted of crimes during the period he was on probation, and was serving sentences based on those convictions. No issue existed as to his denial of the violations. Since the question of what process is due depends on the function of the proceeding as well as the nature of the interest affected, Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972), and since the discussion at the hearing shows that this was not a situation in which the presence of counsel could have alleviated the consequences of appellant’s own acts, we hold that failure to apprise appellant of his right to counsel at his probation revocation hearing was not an error which substantially affected his constitutional rights. This being so, the probation revocation need not be set aside. Van Cleaf v. State, 328 So.2d 568 (Fla.2d DCA 1976).

The same conclusion cannot be reached regarding imposition of sentence. The decision in Mempa mandates the presence of counsel at sentencing, whether or not this occurs at the same time as revocation of probation. Thus the sentencing procedure was constitutionally defective and must be reversed. Simmons v. State, 298 So.2d 206 (Fla.2d DCA 1974); Van Cleaf v. State, supra.

Appellant asserts additional error in the sentencing procedure, but because our decision as stated affords him the opportunity for relief on this aspect of the case, we need not reach these arguments.

Affirmed in part, reversed in part, and remanded for additional proceedings consistent with the views expressed in this opinion.

      . The court was referring to a pro se motion appellant had brought in proceedings not directly at issue in this appeal.


author: HENDRY, Chief Judge.

text:
    Ramon GARCIA, Appellant, v. The STATE of Florida, Appellee.
    No. 76-807.
    District Court of Appeal of Florida, Third District.
    Nov. 8, 1977.
    Rehearing Denied Dec. 7, 1977.

      Bennett H. Brummer, Public Defender and Elliot H. Scherker, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., and Joel D. Rosenblatt, Asst. Atty. Gen., and Jose R. Rodriguez, Legal Intern, for appellee.
    Before HENDRY, C. J., and NATHAN and KEHOE, JJ.
   HENDRY, Chief Judge.

Appellant, defendant below, appeals his conviction and sentence for robbery and unlawful possession of a firearm during the commission of a felony, in violation of Sections 812.13 and 790.07, Florida Statutes (1975), respectively.

In seeking a reversal of his conviction and sentence, appellant has raised two points on appeal. Firstly, appellant contends that the trial court erred in refusing to allow defense counsel to impeach the testimony of a state witness with a prior inconsistent statement. Secondly, appellant contends that the trial court erred in denying a motion for mistrial where the state elicited testimony from a police officer which established that appellant had exercised his right to remain silent.

For the following reasons, we believe that both points have merit and reverse.

In order for one to impeach a witness with a prior inconsistent statement, a predicate must first be established by calling the attention of the witness to be impeached to the allegedly contradictory statements and to the occasion when it is alleged said statements were made. In addition, opportunity must be given the witness to examine, explain, confess, or deny such contradictory statements. Hancock v. McDonald, 148 So.2d 56 (Fla. 1st DCA 1963); Urga v. State, 104 So.2d 43 (Fla.2d DCA 1958). A careful review of the record demonstrates that such a proper predicate was in fact established.

In excluding the prior inconsistent statement from evidence, the trial judge was of the opinion that the interpreter’s translation of said statement from Spanish to English was “suspect.” Such opinion was apparently based upon both the witness’s failure to recall making part of the statement offered as evidence and the fact that the translator was employed by the Office of the Public Defender. It is our opinion, however, that once the proper predicate was established by the defense, any discrepancy concerning either the statement’s content or the translation of same related to the weight of the evidence and not to its admissibility. See Walter v. State, 272 So.2d 180 (Fla.3d DCA 1973). As such, we believe the court erred in not admitting the prior inconsistent statement into evidence.

As for appellant’s second point, the record reveals that upon being questioned by the state, the arresting officer stated that after being warned of his Miranda rights appellant said that “he didn’t want to make a statement without his attorney being present.” Clearly, such a comment concerning appellant’s silence violated appellant’s fifth amendment safeguard to be free from self-incrimination and amounted to fundamental error, warranting reversal. Bennett v. State, 316 So.2d 41 (Fla.1975); Jones v. State, 200.So.2d 574 (Fla.3d DCA 1967).

Accordingly, after carefully reviewing the record, briefs and arguments of counsel, we have concluded that reversible error has been demonstrated. Therefore, for the reasons stated above, appellant’s conviction and sentence is reversed and remanded for new trial.

Reversed and remanded.


author: PER CURIAM.

text:
    George ROBINSON, Appellant, v. The STATE of Florida, Appellee.
    No. 76-1833.
    District Court of Appeal of Florida, Third District.
    Nov. 8, 1977.
    Rehearing Denied Dec. 7, 1977.
    George Robinson, in pro. per.
    Robert L. Shevin, Atty. Gen. and Margarita Esquiroz, Asst. Atty. Gen., for appellee.
    Before HAVERFIELD, NATHAN and KEHOE, JJ.
   PER CURIAM.

George Robinson appeals his convictions on two counts of robbery.

The first contention raised by defendant concerns the introduction into evidence, over his objection, of testimony of several prosecution witnesses pertaining to their identification of him in a preindictment police lineup and their subsequent in-court identification. Defendant argues that this identification testimony was inadmissible because his counsel was not present at the police lineup and as authority cites to U. S. v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967) and Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178 (1967).

We find Wade and Gilbert to be inapplicable. These cases are applicable to out-of-court identification situations after a defendant has been indicted or criminal proceedings have been initiated. See Kirby v. Illinois, 406 U.S. 682, 92 S.Ct. 1877, 32 L.Ed.2d 411 (1972). The record in the instant case reflects that defendant participated in the police lineup prior to being informed against. See Kirby, supra; Perkins v. State, 228 So.2d 382 (Fla.1969); Robinson v. State, 237 So.2d 268 (Fla. 4th DCA 1970).

Defendant secondly contends that the court erred in admitting into evidence his confession given to a police officer after his arrest, but prior to the filing of an information because his counsel was not present. Defendant relies upon Massiah v. U. S., 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246 (1964).

We find the reliance upon Massiah misplaced because Massiah applies only to a defendant who has been indicted or informed against. Cf. U. S. v. Anderson, 523 F.2d 1192, 1195 (5th Cir. 1975). Moreover, defendant does not allege that his confession was coerced and the officer to whom he confessed testified that defendant was read his Miranda rights and did not request an attorney. Under the circumstances, we conclude that the confession was admissible. Cf. U. S. v. De Loy, 421 F.2d 900 (5th Cir. 1970).

Affirmed.


text:
    Jacalyn BROWN, etc., et al., Appellants, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Appellee.
    No. 76-1975.
    District Court of Appeal of Florida, Third District.
    Nov. 8, 1977.
    Rehearing Denied Dec. 5, 1977.
    Bernard H. Butts, Jr., Hialeah, for appellants.
    Talburt, Kubicki & Bradley and Betsy Ellwanger & Hartley, Miami, for appellee.
    Before HENDRY, C. J., and HUBBART and KEHOE, JJ.
   PER CURIAM.

Affirmed. Sena v. State Farm Mutual Automobile Insurance Co., 305 So.2d 243 (Fla. 3d DCA 1974).


author: PER CURIAM. DAUKSCH, Judge,

text:
    Willie HAMPTON, Appellant, v. STATE of Florida, Appellee.
    No. 76-924.
    District Court of Appeal of Florida, Fourth District.
    Nov. 9, 1977.

      Richard L. Jorandby, Public Defender, and Henry Prettyman, Asst. Public Defender, West Palm Beach, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Robert L. Bogen, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

AFFIRMED. See State v. Heath, 343 So.2d 13 (Fla.1977).

ANSTEAD and LETTS, JJ., concur.

DAUKSCH, J., concurs specially, with opinion.

DAUKSCH, Judge,

concurring specially:

This appeal involves the question presented in Pace v. State, 350 So.2d 1075 (Fla. 4th DCA, Opinion filed June 24, 1977), in which I dissented. See also dissent upon denial of rehearing, Opinion filed October 11, 1977. The rule is now established that the trial court may impose the restriction discussed in Pace, supra. Therefore, I concur in the result here but do not recede from my opinion in that dissent.


text:
    Sheldon T. LUTZ, Appellant, v. STATE of Florida, Appellee.
    No. 76-1699.
    District Court of Appeal of Florida, Fourth District.
    Nov. 9, 1977.
    Richard L. Jorandby, Public Defender, Frank B. Kessler, Asst. Public Defender, and Larry S. Weaver, Legal Intern, West Palm Beach, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, Basil S. Diamond and Benedict P. Kuehne, Asst. Attys. Gen., West Palm Beach, for appellee.
   PER CURIAM.

We have considered the appellate point presented in the briefs and find it to be without merit. See K. G. v. State, 338 So.2d 72 (Fla. 3rd DCA 1976).

AFFIRMED

DOWNEY and ANSTEAD, JJ., and SCHWARTZ, ALAN R., Associate Judge, concur.


text:
    In the Interest of S. J. J., a child.
    No. 76-1756.
    District Court of Appeal of Florida, Fourth District.
    Nov. 9, 1977.
    Richard L. Jorandby, Public Defender, Laurie Sistrunk, Asst. Public Defender, and Frank B. Kessler, Chief, Appellate Division, West Palm Beach, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Paul H. Zacks, Asst. Atty. Gen., West Palm Beach, for appellee State of Fla.
   PER CURIAM.

After a probation violation hearing, the trial court entered an order on August 3, 1976, finding the minor to be in violation of probation but continued the minor on probation. We find the evidence insufficient to support that portion of the order finding a violation of probation. See Demchak v. State, 351 So.2d 1053 (Fla. 4th DCA 1977); Robbins v. State, 318 So.2d 472 (Fla. 4th DCA 1975); Brown v. State, 305 So.2d 309 (Fla. 4th DCA 1974). However, we find the order proper in all other respects. Accordingly, the order is hereby modified to ex-elude the finding of a violation of probation; and the order is affirmed as modified.

ANSTEAD, DAUKSCH and LETTS, JJ., concur.


author: LETTS, Judge.

text:
    Larry COMBS, Appellant, v. STATE of Florida, Appellee.
    No. 76-1984.
    District Court of Appeal of Florida, Fourth District.
    Nov. 9, 1977.
    Richard L. Jorandby, Public Defender, Frank B. Kessler, Chief, Appellate Division, and James K. Green, Legal Intern, West Palm Beach, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Paul H. Zacks, Asst. Atty. Gen., West Palm Beach, for appellee.
   LETTS, Judge.

This is an appeal from an order revoking probation. The appellant, Larry Combs, was charged with violating his probation by participating in a burglary. Combs argues and the State concedes that the only evidence of Combs’ participation in the burglary was hearsay testimony by a police officer that another participant in the burglary had implicated Combs. There was no other evidence connecting Combs to the burglary.

While hearsay evidence is admissible in probation revocation proceedings, a defendant’s probation cannot be revoked solely on the basis of hearsay evidence. Demchak v. State, 351 So.2d 1053 (Fla. 4th DCA opinion filed April 7, 1977); Robbins v. State, 318 So.2d 472 (Fla. 4th DCA 1975); Brown v. State, 305 So.2d 309 (Fla. 4th DCA 1974).

The State attempts to avoid this rule by pointing out that other evidence was offered at the hearing concerning the burglary. But none of this evidence in any way connected Combs to the burglary. The rule requiring more than hearsay to establish a violation of probation requires other evidence of the defendant’s misconduct, not just other evidence.

Since the only evidence that was offered to prove Combs violated his probation was the hearsay testimony of the police officer, the order revoking probation should be reversed.

REVERSED.

CROSS and ANSTEAD, JJ., concur.


author: ALDERMAN, Chief Justice.

text:
    Amy Louise GARRISON, Appellant, v. William N. GARRISON, Sr., Appellee.
    No. 76-1785.
    District Court of Appeal of Florida, Fourth District.
    Nov. 9, 1977.
    John T. Christiansen, of Christiansen, Jacknin & Myers, Palm Beach, for appellant.
    Larry Klein, and Cone, Owen, Wagner, Nugent, Johnson & McKeown, West Palm Beach, for appellee.
   ALDERMAN, Chief Justice.

In this divorce case the wife appeals, contending that the trial court erred by awarding rehabilitative rather than permanent alimony. We hold that the trial court did err when, as a pre-condition to the award of permanent alimony, it placed upon the wife the burden of showing that she must be completely and permanently dependent upon her husband for the rest of her life.

In its final order dissolving the marriage the trial court said:

With respect to the issue of permanent vs. rehabilitative alimony, in many respects this case contains the classic elements of the wife deserving of permanent alimony; a marriage of long duration (32 years); a woman who married at the age of eighteen (18), raised four children, stayed out of the market place at the behest of the husband; a high standard of living and one that would be difficult for the wife to approach from her own efforts, considering her educational and business background; a woman, while not too old to work at a substantial job, nevertheless, is at an age that reasonable employment would be difficult to obtain. On the other hand, the wife impresses the Court as a person capable of obtaining employment after appropriate vocational rehabilitation and after she adjusts to her new situation. It is the burden upon the party seeking permanent alimony to demonstrate that she is entitled to same. The wife has testified that-she is still undergoing considerable emotional stress as a result of the domestic problems leading up to this action for dissolution and the dissolution itself; however, with respect to the length of time necessary to overcome this and to enable the wife to become financially self-sufficient, she has not carried the burden of showing that she must be completely and permanently dependent upon the husband for the rest of her life. [Emphasis supplied.] Accordingly, the Court finds that she is entitled to rehabilitative rather than permanent alimony. It is expressly held that the wife may petition the Court at any time during this rehabilitative period to request a continuation of said period or a modification to make the alimony permanent.

In a recent opinion, intended to clarify the law regarding alimony where a breakup of a long term marriage is involved, we discussed the various factors which should be considered in allowing alimony. McAllister v. McAllister, 345 So.2d 352 (Fla. 4th DCA 1977). In the light of that opinion, we hold that a showing of complete and permanent dependence by the wife on her husband is a factor to be considered; but it is not an essential element which must be proved before there can be an award of permanent alimony. As was noted by the trial judge, the present case contains most of the factors enumerated in McAllister, indicating that an award of permanent alimony is appropriate.

The error is harmful even though the wife may at any time during the rehabilitative period petition for a continuation of rehabilitative alimony or a modification to make the alimony permanent. This is so because the burden is placed upon the wife to show significantly changed circumstances before there can be a modification. If she is entitled to permanent alimony it should be awarded now. Later, if the husband can show changed circumstances, either his or hers, he may be entitled to modification. Wilson v. Wilson, 279 So.2d 893 (Fla. 4th DCA 1973).

It may be that a combination of permanent and rehabilitative alimony would be justified. As stated in McAllister, supra, at 355, we do not intend to lend support to the thought that a middle aged healthy woman need not go out to work. The wife should be encouraged to seek employment, and to accomplish this, in addition to permanent alimony, an award of rehabilitative alimony may be appropriate.

Upon remand the trial court is directed to reconsider that part of its final judgment awarding rehabilitative rather than permanent alimony and enter a new order consistent with this opinion.

REVERSED and REMANDED.

LETTS, J., and HASTINGS, ALCEE L., Associate Judge, concur.


author: DOWNEY, Judge.

text:
    Harold SALMON, Appellant, v. ROBER BROS., INC., a Florida Corporation, Appellee.
    No. 76-2284.
    District Court of Appeal of Florida, Fourth District.
    Nov. 9, 1977.

      William A. Kledzik, of James P. Pánico & Associates, P. A., Maitland, for appellant.
    Richard A. Leigh, of Leonhardt, Trickel, Leigh & Gibson, Orlando, for appellee.
   DOWNEY, Judge.

Appellant, as Vendee, sued appellee, as Vendor, for breach of a contract to convey realty. Appellant sought to recover the $19,000 deposit which he had delivered to appellee pursuant to the contract. Upon appellee’s motion the trial court entered a summary judgment in its favor.

The breach of contract with which appellee was charged was failure to furnish an abstract of title as required by the contract. However, on motion for summary judgment appellee demonstrated by depositions in the record that appellee had furnished the required abstract of title and that, therefore, there was no genuine issue of material fact involved.

Additionally, appellant contends that the contract provision which allowed appellee to retain the deposit of $19,000 in the event appellant defaulted under the terms of the contract was a forfeiture and thus was unenforceable. We reject this contention upon authority of Hutchison v. Tompkins, 259 So.2d 129 (Fla.1972) and Bruce Builders, Inc. v. Goodwin, 317 So.2d 868 (Fla. 4th DCA 1975).

For the foregoing reasons the judgment appealed from is affirmed.

AFFIRMED.

CROSS and LETTS, JJ., concur.


author: ALDERMAN, Chief Judge.

text:
    Ernest C. KRAUTH, Appellant, v. FIRST CONTINENTAL DEV-CON, INC., a Delaware Corporation, and First Federal Savings and Loan Association of the Palm Beaches, a corporation existing under the laws of the United States of America, Appellees.
    No. 76-2336.
    District Court of Appeal of Florida, Fourth District.
    Nov. 9, 1977.

      Freeman W. Barner, Jr., of Cromwell & Remsen, Riviera Beach, for appellant.
    Douglas C. Zahm of Wood, Cobb, Murphy & Craig, West Palm Beach, for appellee-First Federal.
   ALDERMAN, Chief Judge.

This appeal presents a question of priority among unsecured judgment creditors who seek to charge the partnership interest of their judgment debtor with payment of their unsatisfied judgments pursuant to Section 620.695, Florida Statutes (1975).

First Federal Savings and Loan Association of the Palm Beaches obtained a deficiency judgment against First Continental Dev-Con, Inc., and in February 1976 brought an action to charge First Continental’s interest in a general partnership known as Fleur de Lis Company with payment of the judgment. Ernest C. Krauth also obtained a judgment against First Continental; in April 1976 Krauth moved to intervene in the suit that had been initiated by First Federal, and he was designated a plaintiff in the action. A default was subsequently entered against the defendant, First Continental, and the trial court entered a Charging Order, which read in pertinent part:

ORDERED AND ADJUDGED that the interest of Defendant-FIRST CONTINENTAL DEV-CON, INC., in all profits or any other money due or to become due to Defendant from Fleur de Lis Company, a Florida general partnership, is hereby charged with payment in full of the unpaid portion of Plaintiff-FIRST FEDERAL’s Deficiency Judgment . Any monies remaining after payment of that judgment shall be applied toward payment of the unpaid portion of Plaintiff/Intervenor-KRAUTH’s judgment

Krauth brought this appeal, arguing that the charging order should have provided for a pro rata division of First Continental’s partnership interest rather than applying a priority method to give First Federal the right to full payment of its judgment before Krauth could get anything. We affirm the trial court.

The Uniform Partnership Act, as adopted in Florida in 1973, is silent on this question. The statute on which Krauth and First Federal based their action is Section 620.-695(1), Florida Statutes (1975):

On application to a court having jurisdiction by any judgment creditor of a partner, the court may charge the interest of the debtor partner with payment of the unsatisfied amount of the judgment with interest, and may then or later appoint a receiver of his share of the profits and of any other money due or to become due to him from the partnership, and make all other orders to take the actions that the debtor partner might have made or that the circumstances of the case may require.

Because there is no specific guidance as to the proper means of apportioning a partnership interest among competing creditors, Section 620.58 applies: “In any case not provided for in this part, the rules of law and equity . . . shall govern.”

The appellant says that it would be equitable to make a pro rata division, so that each creditor would get at least partial satisfaction if resources for full payment of all were lacking. The principles with which the appellant supports his argument seem derived, however, from situations in which there was a final, determinable sum to be divided, as in the dissolution or winding up of a partnership. He cites, for example, Sacks v. Lytle, 119 Neb. 642, 230 N.W. 501 (1930), a dissolution case. In the appeal now under consideration there is no indication that Fleur de Lis Company was being wound up or the partnership dissolved. Presumably the fund represented by First Continental’s partnership interest would continue to change, lending some practical difficulty to a pro rata apportionment. More importantly, “the rules of law and equity” point to a priority method of charging a partnership interest.

A partner’s interest in a partnership is personal property. Section 620.685, Florida Statutes (1975). At common law it was subject to levy and sale under execution, but that was changed by the Uniform Partnership Act, which has made the statutory charging order the only means by which a judgment creditor can legally command payment from the debtor’s partnership interest. Myrick v. Second National Bank of Clearwater, 335 So.2d 343 (Fla. 2d DCA 1976). The charging order is a flexible court-supervised substitute for the more disruptive process of execution by the sheriff. It therefore seems logical that, in the absence of precedent or statute to the contrary, the method of apportioning payment to judgment creditors from a partnership interest should be parallel to the method of determining priority among judgment creditors seeking execution on other kinds of personal property. In the ordinary execution process, where more than one judgment has been obtained against a debtor, the one first put in the hands of the sheriff for execution should be the first satisfied. Blackstone Holding Co. v. Lawrence, 140 Fla. 703, 192 So. 198 (1939). Execution becomes a lien on personal property from the time the writ is delivered to the sheriff, superior to liens created by writs delivered to the sheriff at later times. Bank of Hawthorne v. Shepherd, 330 So.2d 75 (Fla. 1st DCA 1976); Black v. Miller, 219 So.2d 106 (Fla. 3d DCA 1969).

In line with the principles discussed above, we hold that, where unsecured judgment creditors are concerned, the first to apply to a court of proper jurisdiction for a Section 620.695 charging order has priority for the full satisfaction of his judgment from the debtor’s partnership interest. Other judgment creditors achieve priority according to the sequence in which they apply for charging orders. There is no pro rata apportionment of the partnership interest, and it matters not when the judgments were entered nor what efforts may previously have been made to satisfy them by other means.

AFFIRMED.

MOORE, J., and HASTINGS, ALCEE L., Associate Judge, concur.


text:
    In re ESTATE of Albert WEBER, Deceased.
    No. 76-2354.
    District Court of Appeal of Florida, Fourth District.
    Nov. 9, 1977.

      James L. S. Bowdish of Crary, Buchanan & Meginniss, Stuart, for appellant.
    John B. McCracken of Jones, Paine & Foster, West Palm Beach, for appellee.
   PER CURIAM.

This appeal involves the interpretation of the following clause in a will:

All the rest, residue and remainder of my estate, whether real, personal or mixed, and wheresoever situate and of whatsoever nature, I give, devise and bequeath to EDWARD BROWN, as Trustee for the minors, BRUCE BROWN and PAUL BROWN, all of Route 2, Blackburn Road, Quarryville, Pennsylvania, share and share alike, and to BARBARA HINKLE, 917 North Flagler Drive, # 403, West Palm Beach, Florida, respectively, share and share alike.

The trial court construed this provision to mean that Barbara Hinkle would receive one-half of the residuary estate and Edward Brown, as trustee, would receive one-half. We believe that the trial court’s construction was correct, and the order on appeal is hereby affirmed.

ANSTEAD and MOORE, JJ., and SCHWARTZ, ALAN R., Associate Judge, concur.


text:
    CITY NATIONAL BANK OF MIAMI, as Trustee, Appellant, v. Eugene SIMMONS and Mary Simmons, his wife, and Howard E. Simmons and Margie B. Simmons, his wife, Appellees.
    No. 77-310.
    District Court of Appeal of Florida, Fourth District.
    Nov. 9, 1977.

      H. C. Feige, of Patterson, Maloney & Shankweiler, Fort Lauderdale, for appellant.
    Frank M. Townsend, Kissimmee, for ap-pellees.
   DOWNEY, Judge.

Appellees sued appellant to foreclose a mortgage on realty in Osceola County, Florida, the legal title to which is held by appellant as trustee under an unrecorded Land Trust Agreement. Appellant moved to dismiss appellees’ complaint on the ground among others, that the complaint failed to join the trust beneficiaries who were alleged to be indispensable parties to the suit. This motion was denied. It is appellant’s contention that Fla.R.Civ.P. Rule 1.210(c) does not authorize suit against the trustee alone because the Land Trust Agreement under which the Trustee was empowered to act did not give the trustee power “to sell and give discharges for the proceeds of the sale, or the rents, income or profits of the estate . . . as required by said rule.

Appellant advises us that in support of the motion to dismiss it tendered to the Court a copy of the Land Trust Agreement in question, that the Court refused to consider it. Appellant further states in the brief that the trial judge “decided that the question of whether or not the beneficiaries must be joined would be better decided as a matter of an affirmative defense rather than on motion to dismiss.”

Fla.R.Civ.P. Rule 1.140 provides that failure to join indispensable parties may be raised by motion. Obviously, this contemplates a speaking motion which should contain the facts demonstrating why the alleged indispensable parties are indispensable. Appellant’s motion to dismiss simply states conclusions. Appellant did not attach a copy of the Land Trust Agreement to its motion to support the allegation relative to indispensable parties. Therefore, while a motion is the proper vehicle to raise the issue of indispensable parties, appellant’s motion was insufficient.

In passing, we note appellees’ reliance upon Grammer v. Roman, 174 So.2d 443 (Fla.2d DCA 1965). However, we do not feel that case is controlling in the state of this record. In Grammer, although the Land Trust Agreement was not disclosed, the deed vesting title in the trustee was before the court and it contained a grant of powers sufficiently broad to bring the case within the purview of both Section 689.071, Florida Statutes (1975), and Fla.R.Civ.P. Rule 1.210(c).

Accordingly, we affirm the trial judge’s denial of appellant’s motion to dismiss without prejudice to appellant’s right to file a new motion setting forth the facts demonstrating the failure to join indispensable parties and attaching a copy of the Land Trust Agreement. With the proper documentary evidence properly before him the trial judge will be in a position to rule on the merits of appellant’s contention regarding indispensable parties.

AFFIRMED.

CROSS and LETTS, JJ., concur.


text:
    Steven CASPER and Judith Casper, Appellants, v. Alan BESHANY, Appellee.
    No. 77-1029.
    District Court of Appeal of Florida, Fourth District.
    Nov. 9, 1977.

      A. J. Ryan, Jr., of Ryan & Shahood, Da-nia, for appellants.
    John M. Parker, of Penziek & Parker, Miami, for appellee.
   PER CURIAM.

In an action formerly cognizable at law the defendants seek review by interlocutory appeal of the trial court’s order denying their motion to dismiss plaintiff’s complaint. We dismiss the appeal because it does not qualify as an interlocutory appeal under Fla.App. Rule 4.2. Neither may we treat the appeal as a petition for writ of certiorari because interlocutory orders in cases previously cognizable at law are reviewable by certiorari only when it clearly appears there is no full, adequate and complete remedy available by appeal after final judgment. Johnson v. General Motors Corp., 350 So.2d 1119 (Fla. 4th DCA, opinion filed October 18, 1977).

APPEAL DISMISSED.

ALDERMAN, C. J., and CROSS and LETTS, JJ., concur.


text:
    Juanita BELL, Appellant, v. Guy A. BARGERON and wife, Christine Bargeron, Appellees.
    No. EE-137.
    District Court of Appeal of Florida, First District.
    Nov. 15, 1977.
    Gillis E. Powell, Jr., Crestview, for appellant.
    James E. Moore of Moore & Anchors, Niceville, for appellees.
   PER CURIAM.

This is an appeal from a final judgment construing a deed. Our examination of the record reveals that the learned trial judge properly and correctly construed the deed in accordance with the plain and unambiguous provisions thereof. Accordingly, no error having been demonstrated, the final judgment here appealed is

AFFIRMED.

McCORD, C. J., and BOYER and MELVIN, JJ., concur.


text:
    WESLEY OF FLORIDA, INC., Petitioner, v. STATE of Florida, DEPARTMENT OF GENERAL SERVICES, Respondent.
    No. EE-391.
    District Court of Appeal of Florida, First District.
    Nov. 15, 1977.
    S. Gordon Blalock of Blalock, Holbrook & Akel, P. A., Jacksonville, for petitioner.
    Spiro T. Kypreos and John A. Barley, Tallahassee, for respondent.
   PER CURIAM.

The prayer of the petition for review is DENIED. Petitioner’s motion to tax costs is DENIED.

MILLS, Acting C. J., and SMITH and ERVIN, JJ., concur.


text:
    SAVE OUR COUNTY COALITION, etc., et al., Appellants, v. Ansel A. WITTENSTEIN, etc., et al., Appellees. BROWARD COUNTY, Florida, etc., Appellants, v. Ansel A. WITTENSTEIN, etc., et al., Appellees.
    Nos. 76-311 and 76-612.
    District Court of Appeal of Florida, Fourth District.
    Nov. 15, 1977.
    Myron H. Burnstein, Hollywood, for appellant Save Our County Coalition, etc.
    Betty Lynn Lee, Gen. Counsel for Bro-ward County, Fort Lauderdale, for appellant Broward County.

      Robert E. Ferris, Jr., of Gustafson, Caldwell, Stephens & Ferris, Fort Lauderdale, for appellee Wittenstein.
   DOWNEY, Judge.

Appellant, Save Our County Coalition, purportedly acting under an initiative provision of the Broward County Charter, prepared and circulated a petition calling for the adoption by referendum of an ordinance directing an eighteen month moratorium for zoning and building in Broward County or a portion thereof. When the number of signatures required by the Broward County Charter were obtained, the petition was presented to the Supervisor of Elections for certification and submission to the Board of County Commissioners of Broward County.

Appellee sued to enjoin the Board of County Commissioners and the Supervisor of Elections (a) from spending public funds to count the signatures on the initiative petition, and (b) from placing the proposed ordinance on any ballot. The evidence adduced at final hearing showed the title to the proposed ordinance is:

AN ORDINANCE RELATING TO LAND USE PLANNING; REQUIRING DEFERMENT OF FINAL DECISION ON PETITIONS FOR ZONING OR REZONING, DEFERRING GRANTING OF BUILDING PERMITS, FOR A LIMITED PERIOD OF TIME, WITHIN A PORTION OF THE SOUTH WEST QUADRANT OF BROWARD COUNTY, FLORIDA, PROVIDING FOR THE TERMINATION OF THE ORDINANCE, AND PROVIDING FOR THE EFFECTIVE DATE.

The body of the ordinance in Section 1(h) defined the boundaries of the area involved as:

“On the South by the southern boundary of Broward County, on the west by the central and southern flood control district’s dikes, on the north by State Route 84 and on the east by Flamingo Road,

However, Section II of the ordinance in question provides:

“Section II. Each local government of Broward County having jurisdiction to grant zoning or rezoning petitions shall defer for the duration of this Ordinance any final decision on any such Petition.”

There was testimony in the record by an expert in land surveying that the word “quadrant” used in the title to the ordinance is an imprecise term as regards land descriptions. But in any event, the legal description contained in Section 1(h) would not fall within the southwest quadrant of Broward County. This is so because the description of the western boundary of the area as the Central and Southern Florida Flood Control District’s dike is uncertain, as there are at least three major dikes in the area, and any one of those dikes could be the western boundary.

The trial court ruled that the proposed ordinance was facially invalid, and he enjoined the Broward County Election officials from placing the proposed ordinance on any ballot. The Coalition and Broward County have each appealed from the final judgment containing those rulings.

Among other reasons the trial court gave for finding the proposed ordinance facially invalid was the failure of the ordinance to comply with Section 125.67, Florida Statutes (1975). In material part that statute provides:

“Every ordinance shall embrace but one subject and matter properly connected therewith, and the subject shall be briefly expressed in the title.”

Because of the description of the western boundary of the area the ordinance would apply to, the subject of the proposed ordinance was not “briefly” described in the title.

Our appellate function is to determine from the record whether there is any competent substantive evidence to support the judgment under review. Our study of the record impels us to the conclusion that the judgment is adequately supported by the proof adduced.

Appellee has cross assigned as error the failure of the trial court to rule on its contention that the Broward County Charter does not authorize the enactment of new ordinances by the initiative and referendum. Having found that the proposed ordinance was invalid on its face, the trial court declined to pass on the question involved in the cross assignments of error. Because the trial court resolved that the proposed ordinance was invalid on its face, he was not compelled to rule on the initiative and referendum question. We also decline to pass on the question.

In view of the foregoing the judgment appealed from is affirmed.

AFFIRMED.

ALDERMAN, C. J., and GREEN, OLIVER L., Associate Judge, concur.


text:
    INTERVEST, INC., Randolph Y. Matheny, G. S. Coble and Bruce E. Clary, Appellants, v. AMCAR, INC., a Florida Corporation, Appellee.
    No. 76-1897.
    District Court of Appeal of Florida, Fourth District.
    Nov. 15, 1977.
    William L. Eagan of Arnold, Matheny & Eagan, P. A., Orlando, for appellants.
    Vernon Swartsel of Anderson & Rush, Orlando, for appellee.
   PER CURIAM.

The appellee, Amcar, Inc., recovered a judgment against the appellants on a note. By an affirmative defense the appellants claimed the note was satisfied as part of a settlement agreement made between the parties on an underlying transaction. On trial the court found against the appellants on this issue and awarded the appellee a judgment on the note. We find that the judgment of the trial court is supported by the record and the judgment is hereby affirmed.

AFFIRMED.

ANSTEAD and MOORE, JJ., and SCHWARTZ, ALAN R., Associate Judge, concur.


text:
    Robert M. LOVELY, Appellant, v. STATE of Florida, Appellee.
    No. 76-2034.
    District Court of Appeal of Florida, Fourth District.
    Nov. 15, 1977.

      Richard L. Jorandby, Public Defender, and Frank B. Kessler, Asst. Public Defender, West Palm Beach, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Paul H. Zacks, Asst. Atty. Gen., West Palm Beach, for appellee.
   ALDERMAN, Chief Judge.

The defendant entered pleas of nolo con-tendere to breaking and entering with intent to commit a misdemeanor and resisting arrest with violence, reserving the right to appeal. He contends that the trial court erred in denying his motion to suppress certain tangible evidence seized at his apartment after his arrest. We find no error in the trial court’s ruling and affirm.

The testimony at the suppression hearing establishes that in the early morning hours Deputy Sheriff Hummel was dispatched to a convenience store, where he observed that the glass doors had been broken and that the store appeared to have been “ransacked.” Hummel and Deputy Fisher, who had also been summoned to the scene, observed footprints on the wet ground leading from the front of the store. The officers followed the footprints, which led to the door sill of the defendant’s apartment. They noticed a drop of fresh blood near the front door. Deputy Fisher knocked and the defendant opened the door. After being informed that the officers were investigating a burglary, the defendant slammed the door; then a woman opened the door, and while she was talking to the officers the defendant came back to the door, shouted obscenities, and again tried to slam the door. Standing at the door Deputy Fisher was able to observe a bloodstained towel in the living room. He put his foot in the door and told the defendant that he was under arrest for breaking and entering. The defendant resisted and a scuffle ensued in the living room and kitchen area of the apartment. The defendant was ultimately subdued, along with the woman who had tried to assist him.

After the defendant and the woman were placed in the police car, Deputy Fisher remained at the door of the apartment until an “evidence technician” arrived and photographed, among other things, the bloodstained towel and washrag found in the living room; the kitchen sink, which contained some loose coins; and the kitchen table with an unopened pack of cigarettes and a six pack of beer on it. The purpose of going back into the kitchen was to photograph the scene of the arrest to show the condition of the kitchen after the altercation. The coins, the cigarettes and the beer, which were all in plain view, were seized as evidence relating to the burglary. Additionally, Deputy Fisher went into the bathroom to close the windows and to make sure that the residence was secure before the officers left. The door of the bathroom was open. When Deputy Fisher looked into the bathroom he observed in open view bloodstained clothes which appeared to have glass fragments on them. These items were also seized.

It has been long recognized that to observe that which is open to view is not generally considered a search and that objects which fall within plain view of a police officer are subject to seizure and may be introduced into evidence. State v. Clarke, 242 So.2d 791 (Fla.4th DCA 1971). It is not a “search” for a police officer to see what may be observed from where he has a legal right to be. State v. Ashby, 245 So.2d 225 (Fla.1971). The items seized in the present case were all in plain view. The question is whether the police officer had the right to be in the position to have that view.

The bloodstained towel and washrag found in the living room were first observed by Deputy Fisher as he was standing at the front door. There is no question that, under the circumstances of this case, he had the right to knock on the defendant’s door. When the door was opened he was lawfully in a position to see the bloody towel and washrag which were in plain view in the living room.

The kitchen was part of a crime scene, the resisting of arrest by the defendant. Although Deputy Fisher did not specifically observe the items in the kitchen while the defendant was resisting arrest, they were later observed when he returned to the kitchen with the photographer. To photograph the crime scene was a legitimate reason for returning to the kitchen; therefore the officer was lawfully in a position to see the coins, cigarettes and beer.

Deputy Fisher further testified that since there would be no one left in the apartment when the officers left, he went around to close the windows and make sure there wouldn’t be access for someone to get in and burglarize the apartment. When he checked the bathroom he observed the bloody clothes in plain view. The securing of the apartment, including the bathroom, was a proper police function; therefore he was lawfully in a position to see the bloody clothes.

The defendant contends that Deputy Fisher’s conduct was merely a ruse to carry out a general exploratory search of his apartment. The trial court declined to accept this interpretation of the evidence. In testing the accuracy of the trial court’s conclusion we should interpret the evidence and all reasonable inferences and deductions capable of being drawn therefrom in the light most favorable to sustain the trial court’s conclusion. Jester v. State, 339 So.2d 242 (Fla.3d DCA 1976). Applying this test, we hold that the evidence in the present case is sufficient to establish a factual basis for the trial court determining that there was no search and that Deputy Fisher was legally in a position to view the items which he seized. The credibility of Deputy Fisher and the weight to be given his testimony is within the province of the trial judge,

AFFIRMED.

DAUKSCH, J., concurs.

CROSS, J., dissents without opinion.


author: MOORE, Judge.

text:
    Robert John McGOWAN, Appellant, v. STATE of Florida, Appellee.
    No. 76-2181.
    District Court of Appeal of Florida, Fourth District.
    Nov. 15, 1977.

      Richard L. Jorandby, Public Defender, and Frank B. Kessler, Chief, Appellate Division, West Palm Beach, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Robert L. Bogen, Asst. Atty. Gen., West Palm Beach, for appellee.
   MOORE, Judge.

This is an appeal from a conviction for possession of marijuana which was predicated upon a nolo contendere plea with reservation of right to appeal the trial court’s denial of appellant’s motion to suppress evidence. We affirm.

Appellant and a friend were parked at night on a dirt road in a somewhat isolated, wooded area when a police unit pulled alongside. Both vehicles had the windows open and the police officer who had been trained at the police academy to detect the odor of marijuana did in fact detect a strong odor of the substance. He also witnessed appellant “lean forward as if to put a cigarette or something of that nature out in the ashtray.”

Under the circumstances the officer requested appellant and his companion to exit their vehicle whereupon he told appellant what he had smelled and advised that if they had any more of the unburned substance that he wanted it. Appellant reached in his vehicle and retrieved a baggie which contained suspect marijuana and handed it to the officer. Appellant was then placed under arrest and advised of his “Miranda rights.”

Upon further questioning appellant opened his trunk and handed the officer additional marijuana. These were two other instances where marijuana was found but these are not the subject of this appeal.

Arriving in a secluded, wooded area in the dark of night, finding a vehicle containing two occupants parked with its lights out and detecting a strong odor of marijuana gave the officer probable cause that a crime was being committed. Under these circumstances, the evidence of such crime could well have vanished if a search warrant had been sought. It has been held that the detection of an odor of marijuana by one trained to detect such odor is sufficient probable cause to conduct a search. See Berry v. State, 316 So.2d 72 (Fla. 1st DCA 1975) and State v. Jones, 222 So.2d 216 (Fla. 3d DCA 1969). The fact that the officer requested appellant to hand him any remaining unburned substance in lieu of conducting an otherwise valid search should not militate against admission of such evidence so obtained.

Accordingly, the judgment of the trial court is AFFIRMED.

ANSTEAD and DAUKSCH, JJ., concur.


text:
    GORDONS JEWELRY COMPANY OF FLORIDA, INC., Petitioner, v. Hyman FELDMAN and Esther Feldman, Respondents.
    No. 76-2662.
    District Court of Appeal of Florida, Fourth District.
    Nov. 15, 1977.

      Wallace W. Tudhope of Smalbein, Eu-bank, Johnson, Rosier & Bussey, Orlando, for petitioner.
    Thomas W. Gibson of Leonhardt, Trickel, Leigh & Gibson, Orlando, for respondents.
   PER CURIAM.

By petition for writ of certiorari in an action formerly cognizable at law, petitioner seeks review of an order denying its motion to dismiss count one of respondents’ complaint. We deny certiorari without de-, ciding the merit of petitioner’s contention. Petitioner will have a full, adequate and complete remedy available by appeal from the final judgment if it should be aggrieved thereby. Petitioner urges several reasons why it would be expedient to have the interlocutory order reviewed at this time, none of which are legally sufficient to warrant us granting certiorari. Siegel v. Abramowitz, 309 So.2d 234 (Fla. 4th DCA 1975); Solitron Devices, Inc. v. Reiland, 311 So.2d 729 (Fla. 4th DCA 1975); Santini Brothers, Inc. v. Grover, 338 So.2d 79 (Fla. 4th DCA 1976); and Johnson v. General Motors Corporation, 350 So. 1119 (Fla. 4th DCA 1977).

CERTIORARI DENIED.

ALDERMAN, C. J., and LETTS and MOORE, JJ., concur.


author: DAUKSCH, Judge.

text:
    Walter CAMPBELL, Appellant, v. STATE of Florida, Appellee.
    No. 76-2700.
    District Court of Appeal of Florida, Fourth District.
    Nov. 15, 1977.
    Richard L. Jorandby, Public Defender, and Craig S. Barnard, Asst. Public Defender, West Palm Beach, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Richard P. Zaretsky, Asst. Atty. Gen., West Palm Beach, for appellee.
   DAUKSCH, Judge.

In review of this guilty plea we find the court did not follow the mandates of Williams v. State, 316 So.2d 267 (Fla.1975); State v. Lyles, 316 So.2d 277 (Fla.1975), and Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969). This cause is remanded to the trial court for hearing to determine if a factual basis exists for the charge against the Appellant. If so, then the Judgment is affirmed. If not, then the Appellant should be permitted to withdraw his plea and go to trial.

REMANDED with directions.

ALDERMAN, C. J., and CROSS, J., concur.


text:
    Claire F. SWALLICK, Appellant, v. Theodore W. SWALLICK, Appellee.
    No. 76-2745.
    District Court of Appeal of Florida, Fourth District.
    Nov. 15, 1977.
    E. D. Cossaboom, Jr., of Hedman & Cos-saboom, Melbourne, for appellant.
    Grady W. White, Melbourne, and Larry Klein, West Palm Beach, for appellee.
   PER CURIAM.

Under the terms of a 1972 separation agreement the husband is responsible for child support until each child reaches age 21 or is otherwise emancipated. The trial court erroneously ruled as a matter of law, that the passage of Section 743.07, Florida Statutes, automatically terminated the husband’s liability for support when each child reached age 18. Section 743.07 changed the age of majority from 21 to 18 effective July 1, 1973. However, agreements or judgments for support entered prior thereto providing for support until age 21 remain binding and enforceable. Daughtery v. Daughtery, 308 So.2d 24 (Fla.1975).

The judgment of the trial court is hereby reversed with directions for the entry of judgment in accordance with this opinion. In addition, since the trial court’s decision to deny the appellant’s application for attorney’s fee was based upon her failure to prevail in the action, that decision is also reversed with directions that a new hearing be conducted on the issue of attorney’s fees.

REVERSED WITH DIRECTIONS.

ALDERMAN, C. J., and ANSTEAD and MOORE, JJ., concur.


text:
    Ab ROSEN, Appellant, v. Selma BAUMAN, United States of America, and City of Oakland Park, Appellees.
    No. 77-985.
    District Court of Appeal of Florida, Fourth District.
    Nov. 15, 1977.
    Thomas P. Bell of Law Offices of Haiman Long Clein, P. A., North Miami, for appellant.
    Eric B. Turetsky of Sparber, Zemel, Ros-kin, Heilbronner & Karp, P. A., Miami, for appellee-Selma Bauman.
   PER CURIAM.

On appeal is an interlocutory order granting an evidentiary hearing in a mortgage foreclosure case subsequent to Judgment. We affirm the Order granting the eviden-tiary hearing.

AFFIRMED.

DOWNEY, ANSTEAD and DAUKSCH, JJ., concur.


text:
    Melval C. HAIST, Appellant, v. Joseph P. SCARP and Helen P. Scarp a/k/a Helen E. Scarp, his wife, House of Haist, Inc., a Florida Corporation, and Nancy C. Haist, Appellees.
    No. 77-1667.
    District Court of Appeal of Florida, Fourth District.
    Nov. 15, 1977.
    Joel L. Kirschbaum of Esler & Kirsch-baum, P. A., Fort Lauderdale, for appellant.
    Michael K. Davis of Watson, Hubert & Davis, Fort Lauderdale, for appellees, Scarp.
   LETTS, Judge.

This is an interlocutory appeal from a trial judge’s denial of a motion to establish a record for the purpose of appeal. We affirm.

The original trial was non-jury and the final judgment was followed by supplemental proceedings out of which came forth a supplemental order requiring the appellant to pay $12,666 to the appellee. Neither the original trial nor the supplemental proceedings were transcribed and indeed both sides informed the trial judge that they did not need a court reporter.

The trial court’s denial of the motion to establish a record was dated July of 1977, the final judgment emanating from the non-jury trial was entered eleven months earlier in August of 1976 and the order directed to the supplemental proceedings was signed in March of 1977.

This case presents a unique situation, because the honorable trial judge below now serves on this very court; however, we do not see this as pertinent, as we could still order him to reconstruct the record from his memory, if we thought it appropriate. Certainly, we cannot expect his replacement on the trial bench to be able to do so.

The appellant argues that the court below erred because the First and Second District Courts of Appeal have ruled that where there is no record on appeal, the trial judge must search his memory, recall witnesses, interview respective counsel and reconstruct the testimony so that the inalienable right of appeal may be preserved. See Travelers Insurance Company v. Agricultural Delivery Service, 262 So.2d 210 (Fla. 2DCA 1972); Jackson v. Granger Lumber Company, Inc., 275 So.2d 555 (Fla. 1DCA 1973). We concede that in the first of the above two cases cited, such does appear to be the court’s ruling, but we cannot agree. What use is there in requiring a trial judge to search his memory when he has already specifically stated that he “didn’t recall anything except the end of the case.”? 262 So.2d at 211.

In the case now before us, Judge Moore, at several places in the record indicated that he was unable to recall with certainty what took place over this period of nearly a year and therefore, could not, himself, establish a record. This being so, we do not feel it appropriate to tell him that if at first he does not succeed he must try and try again. Accordingly, we prefer to agree with the Third District when it said:

We also affirm the interlocutory order and recognize that although the trial judge is charged with the duty of settling disputes to make the record speak the truth, nonetheless, such duty is not indicated where the judge determines he cannot do so. See Rule 3.6(1), FAR, 32 F.S.A.; Travelers Insurance Company v. Agricultural Delivery Service, Fla.App. 1972, 262 So.2d 210, and cases cited therein. Therefore, under the circumstances of this case we find that the trial judge is entitled to the presumption that he has performed his duty as well as the circumstances permitted. Elson v. Ratner, 296 So.2d 604 (Fla. 3DCA 1974) at 605.

In the case at bar both sides chose not to avail themselves of a court reporter. Such a choice always has had the potential for a backfire and we cannot agree that the courts are required to be used as substitutes for court reporters whenever the gamble not to create a record fails to pay off. This is especially so when the trial judge reports that his recollection does not permit it.

It is true that Judge Moore might have recalled witnesses, interviewed trial counsel and, in effect, retried the whole lawsuit. It is true also that we might make him do so in an appropriate case. For'example, if the court reporter fails to transcribe his or her notes or if he, or she, inaccurately does so, we might agree that the aggrieved party is entitled to relief. However, we see no such extenuating circumstances in this case.

We are continually rejecting appeals for failure to provide a sufficient record. This being so, we see no reason to here reward an appellant, who by his own tactic, provides no record whatever.

Our affirmance of the trial judge’s order is without prejudice to the appellant to attempt a construction of a record by way of stipulation. See State Farm Fire and Casualty Company v. Boyer, 347 So.2d 126 (Fla. 4DCA 1977).

AFFIRMED.

DOWNEY and DAUKSCH, JJ., concur.

      . We distinguish the First DCA case in that in the latter decision there was a court reporter who had lost her notes through no neglect or omission by the parties. Also, the same point in that case was but dicta.


author: BARKDULL, Judge.

text:
    Daewid HECHLER, Appellant, v. Marita HECHLER, Appellee.
    Nos. 76-1718, 76-1773.
    District Court of Appeal of Florida, Third District.
    Nov. 15, 1977.
    Sepler & Hernandez and Irma V. Hernandez, Hialeah, for appellant.
    Norman K. Schwarz, Miami Beach, for appellee.
    Before BARKDULL, HAVERFIELD and HUBBART, JJ.
   BARKDULL, Judge.

Daewid Hechler, petitioner/husband, appeals a final judgment of dissolution of marriage and an award of attorney fees and costs.

The appellant originally filed this action,* seeking a divorce. His wife counterclaimed, seeking an award of alimony, child support, rescission and cancellation of a second mortgage on the marital home. In its final judgment dissolving the marriage, the trial court ordered the husband [among other things] to pay child support for the couple’s two minor children; that a second mortgage of $20,000.00 on the home was the husband’s sole responsibility, since it had not been executed with all of the formalities required by law and apparently no consideration from a third party had passed for the mortgage; and to refrain from visiting one of the minor children [his adopted daughter], the natural child of the wife. The trial court also ordered the husband to pay the wife’s attorney’s fees and court costs of $3,142.00 and to pay an expert witness fee of $150.00 for one of the wife’s witnesses.

The appellant contends the trial court erred in finding that the second mortgage and note were not executed according to law. He also contends the trial court erred in denying the husband visitation rights with the couple’s minor daughter, since the father has the same rights regarding his adopted child as he has regarding his natural child. He further contends that the trial court erred in awarding the wife attorney fees, since the husband was unemployed at the time of the hearing and had been unemployed for some time prior thereto. Lastly, he contends the trial court erred regarding the payment of the expert witness fee, since the expert’s services were only incidental and the wife’s assets exceed that of the husband.

We disagree, and affirm. As to the second mortgage, the appellant was already responsible for one-half of the note and mortgage; both parties, in their pleadings requested that the chancellor make a disposition of this obligation. From the record, the chancellor found it was not a bona fide obligation; she could not cancel it of record because she did not have the mortgagee as a party so she did equity between the parties by making the appellant solely responsible for the payment of this obligation which, it appears, may not have been a bona fide indebtedness. But even if it was, it was an indebtedness due to the appellant or his father. Further, if the appellant should prevail on this point, the matter would have to be returned to the trial court to reevaluate the alimony accorded to the wife and, from other matters and things that appear of record [such as the potential flight of the appellant out of the country], the chancellor would be justified in requiring the appellant to discharge this obligation and relieve the wife of any responsibility as lump sum alimony.

As to the second point urged for reversal, it is true that a trial court may not condition visitation on the payment of support payments. Howard v. Howard, 143 So.2d 502 (Fla. 3rd DCA 1962); Chaffin v. Grigsby, 293 So.2d 404 (Fla. 4th DCA 1974). But, certainly in the best interest of the minor child, it can limit or prevent visitation. Cf. Scheer v. Scheer, 132 So.2d 456 (Fla. 3rd DCA 1961); Cortina v. Cortina, 108 So.2d 63 (Fla. 2d DCA 1958); Giacoio v. Giacoio, 286 So.2d 225 (Fla. 3rd DCA 1973). In the instant action, the chancellor prevented visitation for a three-month period because of evidence that demonstrated the adopted child was in fear of the appellant. The chancellor, at all times, has the power to alter a visitation order. Cone v. Cone, 62 So.2d 907 (Fla.1953); Rhoades v. Bohn, 114 So.2d 493 (Fla. 1st DCA 1959); Sapp v. Sapp, 275 So.2d 43 (Fla. 2d DCA 1973). And, in this particular ease, she invited a. petition to review the limitation of visitation to be filed after the three-month period. There is nothing in the record to indicate that the appellant has ever availed himself of either the general authority or the specific authority, retained in the instant case, to review this visitation order.

The other points urged for reversal are found to be without merit. Holton v. Holton, 216 So.2d 35 (Fla. 3rd DCA 1968); Norton v. Norton, 328 So.2d 484 (Fla. 1st DCA 1976).

Therefore, the final judgment of dissolution of marriage appealed herein be and the same is hereby affirmed.

Affirmed.

      . It is noted that he does not allege error in the trial court’s finding that there was no consideration for the note and mortgage.


author: RYDER, Judge.

text:
    BOARD OF COUNTY COMMISSIONERS OF PASCO COUNTY, Appellant, v. Ernest J. HESSE, Sr., Appellee.
    No. 76-1801.
    District Court of Appeal of Florida, Second District.
    Nov. 16, 1977.
    David W. Rynders, Port Richey, for appellant.
    Allen P. Allweiss, St. Petersburg, for ap-pellee.
   RYDER, Judge.

In 1973 the appellee [Hesse] submitted to appellant, Board of County Commissioners of Pasco County [Board] a construction site plan for approval pursuant to a local county ordinance. The Board disapproved Hesse’s site plan and in March of 1974, Hesse filed a petition for writ of mandamus. The trial court held that remedy to be inappropriate and on May 14, 1974 Hesse filed an amended complaint against the Board requesting a declaratory judgment on the constitutionality of the ordinance or, alternatively, a mandatory injunction requiring the Board to issue to Hesse a building permit.

Before the complaint was heard on its merits, the parties entered into negotiations and filed a joint motion for final judgment on January 10,1975 requesting the court to enter an order for final judgment incorporating an attached stipulation and agreement. The agreement essentially provided for a condominium project on Hesse’s gulf front property, consisting of fourteen buildings with 748 units.

On January 13,1975, the court entered an “order” incorporating the stipulation and agreement into “the judgment” ordering the parties to comply with all terms of the agreement, and retaining jurisdiction of the cause for further orders and judgments pertaining to enforcement of executory provisions.

Paragraph eight of the parties’ stipulation and agreement which was incorporated into the judgment of January 13, 1975 provides:

“That the parties hereto do agree that no modification to the terms of this agreement, in issuance of the applicable permits by the defendant pursuant hereto, shall occur unless said modification or modifications shall have first been approved at an official meeting of the Board of County Commissioners of Pasco County.”

On June 23,1976 Hesse filed a motion for enforcement of the judgment alleging that the Board had refused to issue the necessary building permits because Hesse had, to a certain extent, modified the site plan; that the proposed modifications did not violate the intent and spirit of the stipulation and agreement; that the modification was necessary because the original condominium project was no longer economically feasible; and that Hesse had complied with all the terms of the stipulation and agreement.

Hesse’s modified site plan contained the same number of living units (but with less persons per unit) and the same building standards and setback requirements, but with the buildings relocated to the southern portion of the site. The new plan was for “congregate housing”, a retirement living facility for the elderly providing “resi-care” and a proposed 60-bed nursing home.

On October 7, 1976, after a hearing, the trial court entered an order granting Hesse’s motion for enforcement of the prior court order. The trial court found the proposed modifications did “not in any way violate the intent and spirit of the original stipulation and agreement that was the subject matter of this court’s order of January 13, 1975.” From this order the Board appeals. We reverse.

Initially, we observe the court’s “order” of January 13, 1975, was a final judgment. Hesse’s purported motion for “enforcement” actually was a motion to modify that judgment. Although the trial court retained jurisdiction for purposes of enforcement, it had no jurisdiction to modify its final judgment. Frumkes v. Frumkes, 328 So.2d 34 (Fla. 3d DCA 1976); Hopwood v. Revitz, 312 So.2d 516 (Fla. 3d DCA 1975); McEachin v. McEachin, 154 So.2d 894 (Fla. 1st DCA 1963).

Assuming the trial court had jurisdiction to modify its final judgment, we still find no merit to appellee Hesse’s position. Hesse and the Board agreed on a construction site plan based on a stipulated set of facts. The modifications proposed by Hesse called for relocation of certain buildings and an overall plan for a retirement living facility, in contrast to the original site plan which envisioned a condominium project. The Board properly pointed out that there would be many problems associated with the newly proposed project which would necessitate review and consideration by the county’s planning and zoning authorities. Hesse’s modified plan therefore represented a significant change from the proposal agreed to by the county.

Apparently influenced by a change in the economics of the market place, Hesse determined his original plan for a condominium development was no longer feasible. His subsequent proposal to provide a retirement living facility with a nursing home as an adjunct represents a significant change from his original proposal. The County’s actions in declining to approve it were proper since the newly proposed development represented a material departure from the previous one.

We are mindful of our decision in Town of Largo v. Imperial Homes Corp., 309 So.2d 571 (Fla. 2d DCA 1975), relating to the applicability of equitable estoppel to the exercise of governmental zoning authority. In Largo we held the Town was estopped to rezone property to bar a highrise development after the developer had purchased property and otherwise acted to its detriment in reliance on certain representations of the municipality as to zoning. That principle has no applicability here. It was Hesse who changed his mind; not the County.

Judgment reversed.

BOARDMAN, C. J., and SCHEB, J., concur.


text:
    Mary E. SANDERS, Appellant, v. Robert L. SANDERS, Appellee.
    No. 77-938.
    District Court of Appeal of Florida, Second District.
    Nov. 16, 1977.
    L. Guerry Dobbins, Jr., of Law Offices of Walter W. Manley, Lakeland, for appellant.
    William A. Seaerest of Harris & Seacrest, P. A., Lakeland, for appellee.
   McNULTY, JOSEPH P. (Ret.), Associate Judge.

On this appeal, Mary E. Sanders argues that the trial court erred in ordering the partition of the marital home as part of a judgment of dissolution of marriage. For the reasons hereinafter stated we agree and reverse that portion of the judgment.

The appellee/husband filed the petition herein for dissolution. He also asked the court to make an equitable distribution of jointly-owned property. Appellant/wife then filed an answer and a eounterpetition in which she requested ownership of the marital home. After a hearing on the matter, the trial court granted the dissolution and ordered the marital home sold and the proceeds divided between the parties.

This court has long held that a judge may partition the jointly-owned property of the parties in a divorce action only if the due process requirements of Chapter 64, Florida Statutes (1975), relating to partition are met. Carlsen v. Carlsen, 346 So.2d 132 (Fla. 2d DCA 1977); Rankin v. Rankin, 258 So.2d 489 (Fla. 2d DCA 1972). No such compliance is evident in this case. First of all, the husband’s petition seeking division of the property does not set forth the required allegations as set forth in Section 64.041, Florida Statutes (1975). Furthermore, the final judgment itself does not provide for the appointment of commissioners or a master, as may be appropriate, in compliance with Section 64.061, Florida Statutes (1975), nor does it provide for the manner and conditions of sale pursuant to Section 64.-071, Florida Statutes (1975).

We reject Mr. Sanders’ argument that the prayer for an equitable “division” of property in his petition was sufficient to serve as a basis for the court’s order of partition. While such a prayer may serve as a basis for division of property when appropriate to serve alimony or special equity considerations, it may not serve as a basis for partition. Compare Butcher v. Butcher, 239 So.2d 855 (Fla. 2d DCA 1970) with Coykendall v. Coykendall, 260 So.2d 558 (Fla. 2d DCA 1972).

In view of what we have said we must reverse that part of the final judgment in which the court ordered partition. We remand the case to the trial court so that it may allow for the filing of such appropriate supplemental pleadings as may be necessary to satisfy the statutory requisites for partition. Burns v. Burns, 174 So.2d 432 (Fla. 2d DCA 1965). In all other respects we affirm the final judgment.

GRIMES, Acting C. J., and SCHEB, J., concur.