author: STOULIG, Judge. LEMMON, Judge

text:
    Linda May SANFORD v. Calvin H. SANFORD, Jr.
    No. 7285.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 16, 1976.
    Rehearing Denied April 13, 1976.
    Reed, Reed & D’Antonio, Floyd J. Reed, Metarie, for plaintiff-appellant.
    Karno, Lockhart & Brainis, Leon I. Brainis, Metairie, for defendant-appellee.
    Before LEMMON, GULOTTA and STOULIG, JJ.
   STOULIG, Judge.

Plaintiff, Mrs. Linda May Sanford, has appealed as inadequate a judgment condemning defendant Calvin H. Sanford, Jr., to pay pendente lite alimony and child support for three children (ages 12, 9 and 2i/£ years) in the sum of $60 per week.

Before we discuss the evidence, we are compelled to make the general observation that plaintiff and her three children cannot subsist on this meager amount without some form of public aid. If we were to affirm this judgment it would be with the knowledge that the award is grossly inadequate. Were it apparent from the record that $60 is what this court could reasonably order the husband to pay, we would be required to affirm even though we recognize the impossibility of Mrs. Sanford’s supporting herself and three children on this amount.

Instead, we remand under the authority of C.C.P. art. 2164 to permit the litigants to prove with specificity plaintiff’s financial needs and her husband’s ability to meet them. We note as the record is now constituted, the trial judge could not reasonably have set the award higher. And yet it indicates the result is unfair. To illustrate the incompleteness of the evidence, we note plaintiff claims she needs $1,245.75 monthly for herself and children. One of her itemized expenses is $178 for payment on the mortgage note on the community home in which Mrs. Sanford did not reside when this rule was tried. She was then living temporarily with her mother (who is not obligated to support her and the children) and she indicated defendant has somehow threatened her if she occupied the house. Since both husband and wife were in court, the living arrangements for plaintiff and her children could have been clarified.

As to the proof of defendant’s means, it is completely unsatisfactory. He testified he operates a charter bus business that grosses $5,200 monthly and nets between $300 and $400. To support his claim, defendant introduced a printed affidavit form in which he penciled in various figures purportedly totalling $4,841 that he asserts are his monthly business expenses. Though the document is signed by defendant, it is not notarized. And further the sum of the itemized expenses listed cannot be reconciled with the “total expenses” shown thereon. Although a subpoena duces tecum was issued for his books, defendant failed to produce them and the matter was submitted for adjudication even though the subpoena was not satisfied. The excuse advanced by defendant for his failure to comply with the subpoena duces tecum was shallow, flimsy and totally without merit. He should not be permitted to benefit from a lower award of support by withholding the information of his business earnings, sought by the subpoena, to the prejudice of his wife’s and children’s right to adequate support commensurate with his income.

Were we to affirm the judgment of the trial court, plaintiff would be compelled to show a change in circumstances in order to seek an adjustment of the award. Such a result would subvert the ends of justice. The deficient record prevents a proper adjudication and its incompleteness is primarily due to the husband’s failure to honor the subpoena duces tecum to produce his records. We also note the evidence as to the wife’s needs could be more clearly developed. Accordingly we remand to permit the litigants to adduce the evidence the'record indicates is available and not before the court.

For the reasons assigned, this matter is remanded for further proceedings consistent with the views herein expressed. Assessment of costs is to await final disposition of this matter.

REMANDED.

LEMMON, Judge

(concurring).

Judgment should not have been rendered on this record, which is deficient in proof of the husband’s ability to pay alimony and child support. since the husband caused this deficiency by refusing to comply with the subpoena, the better procedure would have been a short continuance, with consideration given to assessing attorney’s fees against the husband whose noncompliance caused the first trial to be wasted. Alternatively, the trial court could have set an arbitrary award, based on the husband’s 1974 earnings (since the evidence demonstrated his ability to earn that amount), thus placing the onus on the husband to come in with evidence of current circumstances.

Nevertheless, I concur in the remand, since the trial court can remedy any inequity, if the evidence justifies it, by making a retroactive award, or by assessing attorney’s fees, or by similar appropriate action.

      . Plaintiff is unemployed and has no other source of income.

      . The deficiency in the wife’s proof as to need can be credited to the facts that the couple had been separated for less than one month, that she had no income, and that the family was living with her mother and was dependent upon relatives for everyday needs. Under those circumstances her estimate of costs of the family needs was understandably vague.


source: Caselaw Access Project

author: BEER, Judge. MORIAL, Judge

license: Public Domain

text:
    Charles WALKER v. GAINES P. WILSON & SON, INC., and Liberty Mutual Insurance Company.
    No. 7431.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 16, 1976.
    Rehearing Denied April 13, 1976.
    Writ Denied June 9, 1976.

      Edward R. Drury, New Orleans, Clark A. Richard, Metairie, for plaintiff-appellee.
    Jones, Walker, Waechter, Poitevent, Carrere & Denegre, John C. Combe, Jr., David F. Edwards, Bruce J. Borrello, New Orleans, Stephen L. Huber, Robert A. Katz, George J. Richaud, Metairie, A. Miles Pratt, III, New Orleans, for defendants-appellants.
    Before SAMUEL, MO RIAL, and BEER, JJ.
   BEER, Judge.

As stated by the trial court in its written reasons:

“Plaintiff [Charles Walker, the appel-lee] was injured on the job in the course and scope of his employment in September, 1973. He was originally sent to Drs. Houston, Roy & Faust, who diagnosed a back sprain. With continued complaints of pain, he was referred to Dr. Robert L. Applebaum, a neuro-sur-geon. On October 29, 1973, he was operated on and a herniated L-5, S-l disc was removed. After discharge from the hospital, he was seen several times by Dr. Applebaum, the last visit being February 11, 1974 at which time the doctor said he could return to work.”

As further stated by the trial court:

“The plaintiff felt he could not return to his job and consulted Dr. Kenneth Adatto, an orthopedic surgeon about two —three weeks after discharge by Dr. Applebaum. The orthopedist found the plaintiff to have had some atrophy, straight-leg raising test was positive and produced pain at 75 degrees, muscle spasm was present and the plaintiff’s back was unstable.”

Appellee (hereafter, Walker) filed suit in Civil District Court for the Parish of Orleans on September 12, 1974, against appellants Gaines P. Wilson & Son, Inc., and Liberty Mutual Insurance Company (hereafter, collectively, Employer) seeking $65 per week for 500 weeks plus seven percent interest on each past due installment, medical payments in an additional amount not to exceed $12,500, twelve percent penalties on all amounts past due and owing and reasonable attorney’s fees (which, in the body of the petition, were stated to be in the amount of $3,000) plus all costs, expert fees, etc.

Employer denied liability. The case was tried on two dates: May 5, 1975 and May 29, 1975. Judgment was rendered on June 18, 1975. It read as follows:

“IT IS ORDERED, ADJUDGED AND DECREED that there be judgment herein in favor of plaintiff Charles Walker and against the defendants Gaines P. Wilson & Son, Inc. and Liber ty Mutual Insurance Company, in solido, for Workmen’s compensation at the rate of $65.00 per week and continuing for the duration of plaintiff’s disability, not to exceed 500 weeks less compensation paid up to February 11, 1974 with interest at the legal rate on each past due weekly installment until paid. All Medical expenses incurred by plaintiff to date up to $12,500.00 maximum are to be paid by defendants (including the cost of an orthopedic corset and the medical bill of Dr. Kenneth Adatto)
“Further under the provisions of R.S. 22:658 Liberty Mutual Insurance Company is to pay to plaintiff an additional 12% of each installment payment past due for more than 60 days, as a penalty for arbitrary and capricious refusal to continue payment of compensation in this case, and for the further sum of $5,000.00 as an attorney’s fee.
“The expert fees of Dr. Robert L. Ap-plebaum and Dr. Kenneth Adatto are fixed at $150.00 each and taxed as cost. All costs are to be paid by defendants.”

A motion for new trial was filed on June 26, 1975, rejected the same day, and a petition for suspensive appeal was filed July 11, 1975.

THE STATE OF THE RECORD

Unhappily we are obliged to deal with a situation which arose in the course of this litigation that is difficult for us to treat. Both the transcript of the repartee between counsel and the court and the court’s written reasons for judgment indicate that just below the surface of the record there may have been some conflict between the court and the Employer. We are not disposed to make large of this, realizing full well that the able trial judge and diligent counsel for' the litigants were all on the “firing line” and very much involved in fulfilling their particular responsibilities to the best of their ability. Nevertheless, the existence of some antagonism has been alleged in written brief and oral argument and appears, on the record, to have existed to some degree.

We do not conclude that ultimate determinations made by the trial court should be rejected out-of-hand because of this. We have been obliged to temporize some aspects of the trial court’s judgment which may have been partly attributable to the situation that we have been obliged to describe. But, whatever error into which the trial court may have fallen is not, we are sure, attributable to any motivation other than a vigorous desire to support the proper administration of justice.

Parenthetically, we note that existent pretrial practices very often make excessive demands on the trial judge. Though he is required to ultimately be the impartial trier of the facts, the relentless demands made upon him also require that he become very familiar with the vigorous contentions of the litigants prior to trial. It is almost impossible in these kinds of situations to obviate the possibility that the trial judge will form pretrial opinions which he must, nevertheless, erase from his judicial mind when the trial itself begins. We know how hard this is to do and appreciate the difficult position in which the trial court is placed. Nevertheless, the trial court must, once trial has commenced, deal with the case on the basis of the trial record, difficult though it may be to “block out” preexistent, pretrial views.

PENALTIES AND ATTORNEY’S FEES

Walker alleges that:

“Notwithstanding the fact that the defendants have been fully apprised of petitioner’s disability by medical reports from treating physicians and records from hospitals, said defendant has arbitrarily, capriciously and without probable cause failed and refused to pay to petitioner continuous compensation benefits, notwithstanding amicable demand.”

and further alleges:

That because of the defendant’s arbitrary and capricious action in failing to pay continuous workman’s compensation benefits to petitioner as above set forth, petitioner is entitled to recover from said defendants twelve per cent (12%) penalties on all amounts past due and owing, plus reasonable attorney’s fees.”

These allegations are denied by Employer.

During the trial, and at the request of Walker’s counsel, Dr. Applebaum was qualified by the court as an expert in the field of neurosurgery. He testified that he performed a lumbar laminectomy on Walker on October 29, 1973 and removed a herniated disc at the L5-S1 interspace on the left. No fusion was necessary. Walker was discharged from the hospital in November and followed as an outpatient until February 11, 1974 when he was advised by Dr. Applebaum that he could return to work. Specifically, Dr. Applebaum “considered him capable of doing any type of heavy manual labor without pain or discomfort, which he had previously been able to do to his injury without pain or discomfort.”

Dr. Applebaum reported these findings to the Employer who, “based on the medical information received from Dr. Apple-baum, the treating neurosurgeon” discontinued weekly disability benefit payments. The Employer had previously paid all of the medical and hospital expenses incurred as a result of Walker’s operation and had, of course, been paying maximum weekly disability benefits.

Walker was first examined by Dr. Kenneth Adatto in March, 1974. Dr. Adatto was of the opinion that Walker was not able to return to his former employment and reported same to Walker’s attorney who then made this information available to the Employer by, thereafter, forwarding a copy of Dr. Adatto’s report. This was the first medical Opinion of any physician ■ — treating or otherwise — indicating that Walker was not able to return to his former job.

The Employer, relying on Dr. Apple-baum’s report (and taking into account that Dr. Applebaum was the physician directly involved in the initial treatment of Walker) did not change its opinion regarding the discontinuation of weekly disability payments.

Subsequently, further reports from Dr. Adatto to Walker’s attorney were forwarded by Walker’s attorney to the Employer, but did not precipitate any change in the Employer’s position.

The record indicates that no other medical opinion was sought by either litigant. Accordingly, on one hand the Employer’s physician, who was a recognized expert in the field of neurosurgery, was of the opinion that Walker was fully able to return to his former employment and on the other hand plaintiff’s physician who was recognized as an expert in the field of orthopedic surgery was of the opinion that he was not. The record does not support the trial court’s observations that:

“Liberty Mutual, on February 12, 1974 completely cut off this injured man’s compensation payments and medical assistance. It is unbelievable that this thoroughly experienced compensation insurer, knowing that this man was then just three months following his disc operation, was no longer entitled to any compensation or treatment. The neurosurgeon returning this man to full manual labor on February 11, 1974 was indeed wrong and the insurer knew it. Even if the insurer were justified in relying on that neuro-surgeon’s report, it also knew that the injured man was being returned to work with a permanent disability which itself called for further compensation. Nowhere, at any time in the jurisprudence of this state, has a workmens compensation carrier ‘gotten by’ by paying four months’ compensation to an injured man who has to their certain knowledge had a disc removed from his spine.
“The Court has absolutely no difficulty in concluding from the evidence that denial of further compensation benefits to this plaintiff by Liberty Mutual was deliberate, arbitrary and capricious. The Court applies the statutory penalties for such conduct.”

On the record, we do not find that Employer’s discontinuance of weekly disability payments fits the jurisprudential definition of arbitrary and capricious action in the circumstances here existent.

The penalty provision of the workmen’s compensation act is stricti juris, and penalties are denied were there exists a substantial issue as to whether the disabled workman is entitled to benefits. Guillory v. Travelers Ins. Co., 294 So.2d 215 (La. 1974); R.S. 22:658. Whether the defendant-insurer was arbitrary and capricious in discontinuing benefits depends primarily upon the facts existing and known to the employer or insurer at the time payment zvas stopped. Griffin v. Kelly-Springfield Tire Co., 316 So.2d 529 (La.App. 2nd Cir. 1975). Thus, when termination of disability benefit payments is based upon competent medical evidence indicating release of the claimant for resumption of his former duties, the action is not arbitrary and capricious. Under such circumstances, the insurer or employer is .entitled to a judicial determination of an employee’s claim without incurring penalties. Levine v. Liberty Mutual Ins. Co., 305 So.2d 665 (La.App. 3rd Cir. 1974); Brooks v. Acme Carton Corp., 312 So.2d 924 (La.App. 4th Cir., 1975), writs denied, 318 So.2d 48 (La.1975).

EXTENT OF DISABILITY

The only expert medical testimony presented at trial of this matter was that of Doctors Robert L. Applebaum and Kenneth Adatto. As previously noted, Dr. Ap-plebaum was of the opinion that Walker was fully capable of resuming his prior duties and discharged him on February 11, 1974. Thus, any expert medical testimony supportive of the trial court’s finding of permanent total disability is necessarily restricted to that of Dr. Adatto.

Dr. Adatto last examined Walker in September 1974, over eight months prior to the trial. At that time he found Walker to be disabled. At trial of this matter in May 1975, he testified that he was not able to render an expert opinion as to whether Walker was permanently precluded from doing the same work that he was doing at the time of his injury. He described his practice of handling cases similar to this one, pointing out that he restricts his patients from stressful labor for the first four to six months following the operation. Thereafter, he recommends (as he did here) a return to light duty before attempted resumption of regular heavy duty. It was his opinion that unless this procedure was followed it would be difficult to determine if Walker could, thereafter, return to heavy duty. Specifically, he states:

“You never know on these whether they will be able to go back to heavy duty or not, but I think a trial at light duty is best at first and then go back to full labor.”

Since Dr. Adatto had not examined Walker in the eight month interval between his last examination and the day that he testified at the trial, the record contains no current medical testimony indicative of Walker’s alleged disability as of May 1975. The light duty recommended by Dr. Adatto was neither attempted nor accomplished and there is no way for us to determine on this record whether Walker would have been able to resume his former job if Dr. Adatto’s rehabilitative program had been followed.

At any rate, Dr. Adatto’s testimony, even if accepted without being tern-pered in any way by that of Dr. Apple-baum, does not support a positive medical conclusion that Walker is permanently and totally disabled. His testimony includes a clear indication that Walker should have returned to light duty and, thereafter, worked up to heavy duty. Dr. Adatto was asked if he would absolutely say that Walker could not return to regular duty. He answered in the negative stating:

“No, I think that would be wrong for me to say that, too. Again, I have a standard way of approaching problems; it’s the way I like to if I can. Sometimes you can’t, and that is the way the world is. You can’t always have things the way you want them.”

Aware of the mandate which directs us to accord great weight to the trial court’s findings, we will not upset the basic determination made by the trial court which completely disregarded Dr. Apple-baum’s testimony and completely accepted the testimony of Dr. Adatto although our view of the weight to be accorded the two divergent opinions does not coincide with his. But even accepting Dr. Adatto’s testimony and rejecting that of Dr. Apple-baum the maximum award that can be made on this record is for temporary total disability. Dr. Adatto’s testimony is, in our view, persuasive to the effect that Walker may very well be able to return to his former job. In fact, he outlines a regimen which calculates to effectuate just such a result and gives clear indication that the hoped for result may be susceptible to accomplishment within a reasonable span of time.

CONCLUSION AND DECREE

Walker should, through the period of his temporary total disability, have a right to come back into court to adduce evidence indicative that the disability has become permanent. Fontenot v. Myers, 93 So.2d 245 (La.App.1st Cir. 1957). In the same spirit, since the evidence indicates an equally serious possibility that Walker’s alleged disability may have terminated since his last medical examination, the Employer shall have the right to reopen this matter without delay. See Wilturner v. Southern Bell Tel. & Tel Co., 177 So.2d 605 (La. App.3rd Cir. 1965). Also note LSA-R.S. 23:1331.

Accordingly, the judgment of the Civil District Court for the Parish of Orleans is amended and recast to read as follows:

IT IS ORDERED, ADJUDGED AND DECREED that there be judgment herein in favor of plaintiff Charles Walker and against defendants Gaines P. Wilson & Son, Inc., and Liberty Mutual Insurance Company in solido for workmen’s compensation at the rate of $65 per week and continuing for the duration of plaintiff’s disability not to exceed 300 weeks less compensation previously paid with interest at the legal rate on each past due weekly installment until paid. All medical expenses incurred by plaintiff to date up to $12,500 maximum are to be paid by defendants (including the cost of an orthopedic corset and the medical bill of Dr. Kenneth Adat-to.)

At any time from the date of this judgment onward, each party to this litigation shall have the right to reopen these proceedings for the purpose of determining the then present status of Charles Walker’s disability (or lack thereof). Furthermore, Charles Walker shall have the right at any time prior to the expiration of the 300th weekly disability payment as provided for in this judgment, to reopen the matter in order to adduce further evidence indicative of permanent disability.

Plaintiff’s claim for penalties and attorney’s fees under the provisions of LSA-R. S. 22:658 is denied.

The expert fees of Dr. Robert L. Apple-baum and Dr. Kenneth Adatto are fixed at $150 each and taxed as costs. All costs to be paid by defendants.

As thus amended and recast, the judgment is affirmed.

AMENDED, RECAST AND AFFIRMED.

MORIAL, J., concurs.

MORIAL, Judge

(concurring).

I concur in the result.


author: GULOTTA, Judge. LEMMON, Judge

text:
    Ernest GONZALES v. COASTAL WIRE WAREHOUSE, INC., and Allied Tube Corporation.
    No. 7447.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 16, 1976.
    Rehearing Denied April 13, 1976.

      Tonry, Mumphrey & Dragon, Gary J. Dragon, Chalmette, for plaintiff-appellee.
    Porteous, Toledano, Hainkel & Johnson, James L. Donovan, Paul M. Batiza, New Orleans, for defendants-appellants.
    Before LEMMON, GULOTTA and STOULIG, JJ.
   GULOTTA, Judge.

Defendants appeal from a judgment awarding plaintiff workmen’s compensation benefits based on total and permanent disability. We amend and affirm.

Uncontroverted medical evidence, consisting of the testimony of a specialist in industrial medicine, an orthopedic surgeon and a neurosurgeon, established that plaintiff suffered a herniated lumbar disc resulting from an injury sustained while digging a ditch with a pickaxe during his employment as a warehouse supervisor. Approximately sixty percent (60%) of plaintiff’s job involved moving heavy equipment, pipes and fence wire ranging in weight from 25 to 300 pounds- and other heavy labor. According to the doctors, because of the injury, plaintiff is unable to return to work requiring heavy lifting (more than 25 pounds) or work requiring excessive bending or stooping. The medical experts were in agreement that plaintiff would be susceptible to reinjury and would endanger his health if he were returned to his preinjury occupation.

We find no merit to defendants’ contention that plaintiff is not totally and permanently disabled because his injury has become asymptomatic. A residual condition is legally disabling and compen-sable if, as a result of injuries received in an accident, the possibility of a reoccur-rence of the disabling condition upon a return to work is substantially increased. Mitchell v. Travelers Insurance Company, 136 So.2d 143 (La.App. 3d Cir. 1961); Finn v. Delta Drilling Company, 121 So.2d 340 (La.App. 1st Cir. 1960). In the instant case, plaintiff has become asymptomatic. However, he is susceptible to reinjury and might endanger his health if he were returned to his preinjury occupation. Under the circumstances, he is totally and permanently disabled.

However, defendants seek to attach significance to the fact that Dr. Kenneth E. Vogel, the neurosurgeon, and Dr. Russell J. Rawls, an expert in industrial medicine, last examined plaintiff approximately one year prior to the date of trial. According to defendants, in view of Dr. Kenneth L. Veca’s, an orthopedic surgeon’s, testimony that plaintiff’s condition was improving, Dr. Vogel’s and Dr. Rawls’ testimony to the effect that plaintiff could not return to work without risking rein-jury, should not be accorded a great deal of probative weight because plaintiff’s gradual improvement during the year prior to trial was not taken into consideration by these doctors in their final assessment of plaintiff’s condition. .This contention is considerably weakened by the fact that Dr. Veca, who examined plaintiff on the day prior to trial, testified that plaintiff could not perform his prior duties without the possibility of reinjuring himself. We find no merit to defendants’ argument in this respect.

We are in agreement with defendants’ contention that they are entitled to credit for salary payments. However, the employer is entitled to reimbursement on a week-to-week basis, not on a dollar-for-dollar basis, as claimed.

With respect to credit for salary payments made by the employer subsequent to the accident, the test is whether the wages were earned or were paid as a gratuity. See Francis v. Kaiser Aluminum & Chemical Corporation, 225 So.2d 756 (La.App. 4th Cir. 1960); Pender v. National Fire and Marine Insurance Company, 255 So.2d 95 (La.App. 3d Cir. 1971), writs refused, 260 La. 132, 255 So.2d 355 (1971), 260 La. 133, 255 So.2d 355 (1971) and 260 La. 134, 255 So.2d 356 (1971). Where wages are paid as a mere gratuity, as in the instant case, the employer is entitled to a credit against the amount of compensation payments owed. Although the weekly salary payments exceeded the weekly compensation payments to which the claimant was entitled, the employer was entitled to a credit on a week-to-week, rather than dollar-for-dollar, basis. See LSA-R.S. 23:1206; Futrell v. Hartford Accident & Indemnity Company, 276 So. 2d 271 (La.1973); Daigle v. Higgins Industries, 29 So.2d 374 (La.App.Orl.1947).

Defendants also claim a credit for payments made to plaintiff by a health and accident group insurer. With respect to these payments, if credit is to be afforded against workmen’s compensation payments, defendants must show that they were intended as credits against compensation.

In Caston v. Combined Insurance Company of America, 308 So.2d 287 (La. App. 1st Cir. 1975), the court denied the employer credit against workmen’s compensation benefits for accumulated sick leave payments. In Chase v. Warren Petroleum Corporation, 168 So.2d 861 (La. App. 2d Cir. 1964), no credit was allowed for voluntary pension payments made to an employee where no connection existed between pension and workmen’s compensation benefits. The court stated that credit will not be allowed unless the amount was paid and received as compensation. Applying Caston and Chase to the instant case, we conclude that no showing was made by defendants either that the health and accident policy payments were made as compensation or that any connection existed between the payments and workmen’s compensation benefits. No evidence was introduced to show whether the employer or the employee paid the health and accident insurance premiums and the nature and extent of the coverage under the group policy. Under the circumstances, we conclude that defendants failed to carry the burden of showing that the health and accident policy payments were voluntary payments. Accordingly, defendants are not entitled to a credit against compensation for payments made by the health and accident insurer.

The judgment of the trial court is amended to permit the employer a three week credit against the workmen’s compensation benefits awarded. As amended, the judgment is affirmed.

AMENDED AND AFFIRMED.

LEMMON, J., concurs in part.

LEMMON, Judge

(concurring in part).

I disagree with the implication in dicta that an employer may receive credit against compensation liability for benefit payments made by a health and accident insurer if the employer intended these payments as compensation or paid the policy premiums.

Credit in this case should be denied simply because the benefit payments under the health and accident policy were not “voluntary payments made by the employer” and thus did not qualify under R.S. 23:1206 as payments for which the employer is entitled to a credit. Those payments were made by the insurer (who was not the compensation insurer) because someone paid premium0 and an enforceable obligation arose.

Furthermore, even if the employer paid the policy premiums, health and accident benefits are similar to retirement benefits, severance pay and other fringe benefits of employment, which are a form of earned compensation for services already performed under the employment contract, rather than a gratuity or voluntary payment dependent upon the arbitrary will of the employer.

      . See LSA-R.S. 23:1206.


author: MORIAL, Judge.

text:
    Kathy Mary BOYLE, Individually and for and on Behalf of the minor, Scott Gerard Boyle v. Phil Lawrence DAIGREPONT.
    No. 7280.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 16, 1976.
    Rehearing Denied April 13, 1976.
    Writ Denied June 9, 1976.
    Salomon & Farmer, I. Bernard Salomon, Richard I. Farmer, New Orleans, for plaintiff-appellee.
    William A. Summers, III, Metairie, for defendant-appellant.
    Before SAMUEL, MORIAL and BEER, JJ-
   MORIAL, Judge.

Defendant, Phil Lawrence Daigrepont, appeals from a district court judgment declaring him to be the natural father of the child born on October 5, 1972 to Kathy Mary Boyle and condemning him to pay $20.00 per week for the support and maintenance of the minor child. We affirm.

Defendant herein alleges that the judgment of the trial court is erroneous in that plaintiff, Kathy Mary Boyle, individually and for and on behalf of the minor Scott Gerard Boyle, failed to prove defendant’s paternity by a preponderance of the evidence.

From our review of the record, it is apparent that the testimonies elicited on behalf of plaintiff and defendant are in hopeless conflict. Defendant, although admitting to having had sex with plaintiff on several occasions, contends that he did not meet her until February 17, 1972, substantially after the medically approximated date of conception between January 15 and January 20, 1972. He testified that he remembered the February 17 date because it was a few weeks after his company’s picnic (which he did not attend) and it was near Mardi Gras. Plaintiff, on the other hand, testified that a date with defendant was arranged at his company’s picnic, held in November of 1971, and that they met shortly thereafter. The November picnic date was corroborated by plaintiff’s sister and by Gerald Amadee, a district manager of defendant’s company. Mr. Amadee produced company records which showed that the only company picnic during the period November 1971 through July 1972 was held on November 6, 1971. Plaintiff further testified that she first had sex with defendant on their second date on January 20, 1972 and that until that time she had been a virgin.

Thus, upon this set of circumstances and the fact that a blood test did not rule out the possibility of defendant being the father, we deem it reasonable for the trial judge to have concluded that defendant could have fathered the child. We turn now to the evidence before the district court in its determination of whether defendant was in fact the child’s father.

The record reveals that when plaintiff notified defendant she suspected she was pregnant, defendant insisted that she go to his doctor and he arranged an appointment under his name. Although defendant denied ever referring to plaintiff as his wife, the doctor testified that defendant told him plaintiff was his spouse. The doctor could not confirm plaintiff’s pregnancy and suggested she go to the hospital for a pregnancy test. Defendant accompanied her to the hospital and subsequently inquired of the doctor about the test results. Upon learning that she was pregnant, defendant and plaintiff informed her sister, Karen. Thereafter, defendant accompanied plaintiff when she informed her sister, Sue, and then her mother about her pregnancy. He also went with plaintiff to speak to a priest concerning her pregnancy.

Plaintiff and her witnesses testified that defendant admitted being the one who got plaintiff pregnant and that he stated he would “make everything alright.” At trial, defendant denied ever having admitted paternity or that he had ever offered to marry plaintiff. In deposition, however, defendant stated that if the baby was his, he would marry plaintiff.

We believe that defendant’s actions are consistent with him believing himself to be the father and that the record, taken as a whole, preponderates in favor of a finding of paternity. Accordingly, we find that the trial court has committed no error.

The judgment of the trial court is affirmed.

AFFIRMED.


author: PER CURIAM.

text:
    THE FLORIDA BAR, Petitioner. In re Petition for AMENDMENT OF the CODE OF PROFESSIONAL RESPONSIBILITY and the Integration Rule of the Florida Bar.
    No. 46586.
    Supreme Court of Florida.
    March 10, 1976.
    Norman A. Faulkner, Staff Counsel, Tallahassee, for the Florida Bar, petitioner.
   PER CURIAM.

The motion for an implementing order filed by The Florida Bar pursuant to the opinion of this Court in this case filed on July 9, 1975, 316 So.2d 52, is hereby granted and the Court approves the “Master Charge Attorney Participant Agreement” for use by Sun First National Bank of Orlando and its Master Charge agent, affiliate and member banks.

The Court further approves the “Master Charge Attorney Participant Agreement” for use by all other Florida banks offering the Master Charge service that elect to use this identical form of agreement.

It is so ordered.

OVERTON, C. J., ROBERTS, ADKINS and ENGLAND, JJ., and CHAP-PELL and WILLIAMS, Circuit Court Judges, concurring.


author: ENGLAND, Justice. HATCHETT, Justice

text:
    Richard SHEPPARD, Appellant, v. Robertha SHEPPARD, Appellee.
    No. 47017.
    Supreme Court of Florida.
    March 10, 1976.

      Marc Hauser, Miami, for appellant."
    Robert L. Shevin, Atty. Gen., and Margarita Esquiroz, Asst. Atty. Gen., for The State of Florida, amicus curiae.
   ENGLAND, Justice.

In this case we are asked to review an order of the Dade County Circuit Court denying Richard Sheppard a default judgment in a marriage dissolution action against his wife. Mr. Sheppard, who is indigent, has not been able to learn the whereabouts of his spouse. He obtained jurisdiction over her in order to begin his lawsuit on the authority of Section 57.081, Florida Statutes (1973), which absolves him of filing and service costs, and Section 49.10(1)(b), Florida Statutes (Supp.1974). The latter statute substitutes posting for publication in dissolution and certain other cases brought by indigents. When Mrs. Sheppard failed to appear in the suit, he requested a default judgment of divorce. Service of process was perfected under Sections 49.11 and 49.12, Florida Statutes (1973), by posting in three prominent places in the county of residence and by mailing a notice to Mrs. Sheppard at her last known address. When Mrs. Sheppard failed to respond in any way, Mr. Sheppard moved for a default judgment. The trial judge denied his motion on the ground that Section 49.10(1) (b) is unconstitutional, and a direct appeal of that ruling was brought here. We have jurisdiction.

In Grisson v. Dade County we held that indigent persons would not be denied access to the courts in adoption proceedings due to an inability to pay publication costs. That case rested on the holding of the United States Supreme Court in Boddie v. Connecticut, 401 U.S. 371, 91 S.Ct. 780, 28 L.Ed.2d 113 (1971), to the effect that:

“due process does prohibit a State from denying, solely because of inability to pay, access to its courts to individuals who seek judicial dissolution of their marriages.Thus we hold only that a State may not, consistent with the obligations imposed on it by the Due Process Clause of the Fourteenth Amendment, pre-empt the right to dissolve this legal relationship without affording all citizens access to the means it has prescribed for doing so.”

Grissom and Boddie would appear to be dispositive of this case and require a reversal.

In Grissom we suggested that the Legislature could constitutionally authorize alternative methods of giving notice where personal service of process was impossible and media publication was unduly expensive. In response, Section 49.10(1) (b) was enacted and Section 49.12 was amended to accommodate the authorization of posting. The constitutionality of the former depends on whether it provides a procedure reasonably calculated to provide actual notice of the lawsuit. We hold that it does.

There is no process which will guarantee actual notice of a dissolution proceeding when the location of the person being notified is unknown. Publication of notice in a newspaper may be no more effective than publication by posted notice, particularly in less populated areas of the state where gossip induced by the posting might possibly bring the matter to the defendant’s attention. Still, no better alternative to personal service has been devised and until a better mechanism is developed or the customs of our society change, the Constitution still requires that an indigent person be given some opportunity to dissolve a marriage with a missing spouse. The posting mechanism devised by the Legislature is reasonably calculated to achieve the intended purpose.

The order of the Dade County Circuit Court is reversed, and this case is remanded for the purpose of entering a default judgment dissolving Mr. Sheppard’s marriage.

OVERTON, C. J., and ROBERTS, ADKINS and SUNDBERG, JJ., concur.

HATCHETT, J., concurs with an opinion.

BOYD, J., dissents.

HATCHETT, Justice

(concurring).

I concur in the judgment of the Court and in the view that the posting procedure which the legislature has prescribed by Fla.Stat. § 49.11 (1973) is fully consistent with due process, in the narrow class of cases in which it is authorized by Fla.Stat. § 49.10(1) (b) (1974 Supp.), specifically dissolution and adoption proceedings. I write to point out that the legislature has not purported to authorize the adjudication of property rights on the basis of such service. In my opinion, any such legislation would present a significantly different problem.

      . Fla.Const., Art. V, § 3(b)(1).

      . 293 So.2d 59 (Fla.1974).

        .See, Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 70 S.Ct 652, 94 L.Ed. 865 (1950).

      . We note that the Legislature has amended the posting statute to eliminate Dade, Brow-ard and Duval counties. Chapter 75-205, Laws of Florida (1975). This amendment may signify either a legislative judgment that notice by newspaper publication is more effective than posting in these metropolitan areas, or merely a reaction to the lower court’s decision in this case. In either event, we find nothing in the amendment to alter our conclusion that the two alternatives to personal service — posting and newspaper publication — may be practical equivalents in dissolution matters.


author: ENGLAND, Justice.

text:
    Gwynelle W. LEDGER et al., Petitioners, v. GEIGER-JONES CONSTRUCTION COMPANY et al., Respondents.
    No. 46567.
    Supreme Court of Florida.
    March 10, 1976.

      Paul R. Stern, of Stern & Bernardini, Daytona Beach, for petitioners.
    Kim C. Hammond, of Green, Strasser & Hammond, Daytona Beach, for respondents.
   ENGLAND, Justice.

This case is here on petition for writ of certiorari to the Industrial Relations Commission. The petitioners seek review of an order reversing the determination of the Judge of Industrial Claims that the mother and four minor siblings of a deceased employee were his dependents under Section 440.16, Florida Statutes (1973).

Hugh Dorsey Ledger was the self-supporting son of a closely knit rural family, consisting of a disabled father, a mother and decedent’s four minor brothers and sisters. After he left home to live on his own, decedent continued to send his father funds and to pay family bills equivalent to $40 a week. The Judge of Industrial Claims found that these payments were expected to continue indefinitely and that the family’s subsistence level of living depended in part on them. Decedent’s weekly contribution was added to a “family pot” managed by the father, to which there was also added the father’s weekly earnings of $100, his mother’s weekly earnings of $40, one minor brother’s weekly contribution of $14, and another brother’s $35 weekly contribution. The Judge analyzed the expenses of the family and found that decedent’s contribution accounted for one-fifth to one-sixth of the operating costs of the household, and was therefore essential for the family’s subsistence. The Judge ruled that decedent’s parents were eligible for current dependency benefits, and that the minor children were eligible for contingent benefits if either parent died during their minority.

On review of the Judge’s order, the Commission ruled that the mother was not dependent on the decedent, but rather on the father, because decedent’s weekly payments were made to the father rather than to her. The Commission acknowledged, however, the interdependence of all members of the household on the “family pot”. The Commission also eliminated the contingent rights of decedent’s minor siblings to future benefits.

As to the status of the decedent’s mother, the Commission erred in not following our decision in Floriland Farms Inc. v. Peterman, 131 So.2d 477 (Fla.1961). The facts in that case were virtually identical to the situation before us, and the rule of law there developed is applicable here. Decedent’s mother is, under that decision, a dependent under Section 440.16.

With respect to the decedent’s siblings, the Commission also erred in reversing the Judge’s award of contingent benefits. Their status as dependents was not raised before the Commission by any assignment of error, and under Section 440.-25(4) (a), Florida Statutes (1973), the Commission was obliged to confine its review to the points raised by the parties. Westinghouse Electric Supply Co. v. Reagan, 159 So.2d 222 (Fla.1963).

On both points, the Commission ignored the essential requirements of law. Certio-rari is granted, the Commission’s order is reversed, and the order of the Judge of Industrial Claims is reinstated. Petitioners’ counsel is awarded $500 for services performed in connection with our review of the Commission’s order.

OVERTON, C. J., and ROBERTS, ADKINS, SUNDBERG and HATCHETT, JJ., concur.

BOYD, J., dissents.

      . Section 440.16 provides that if any employee dies, then the employer shall pay: “(2) Compensation ... to the following persons entitled thereto on account of dependency upon the deceased and in the following order of preference . . (e) To the parents, twenty-five per cent to each, such compensation to be paid during the continuance of dependency, (f) To the brothers, sisters and 'grandchildren, fifteen per cent for each . . . .”


author: OVERTON, Justice.

text:
    STATE of Florida DEPARTMENT OF POLLUTION CONTROL, Appellant, v. INTERNATIONAL PAPER COMPANY, a New York Corporation authorized to do business in the State of Florida, Appellee.
    No. 45679.
    Supreme Court of Florida.
    Feb. 26, 1976.

      Robert L. Shevin, Atty. Gen., and James R. Brindell, Asst. Atty. Gen., for appellant.
    Lynn C. Higby and Richard Smoak, Isler, Highby & Brown, Panama City, for appellee.
   OVERTON, Justice.

This is an appeal from a circuit court decision holding Section 403.141(3), Florida Statutes (1973), unconstitutional. We have jurisdiction.

This cause concerns a fish kill in St. Andrews Bay and the proper method for the State to effect the collection of damages.

Appellee, International Paper' Company, owns and operates a paper processing plant adjacent to St. Andrews Bay near Panama City. A fish kill occurred in the Bay during the period June 16-18, 1971. Appellant, Department of Pollution Control, contended the paper company’s discharge of industrial effluent was the direct cause of the fish kill and immediately brought an administrative action seeking damages against appellee paper company pursuant to the provisions of Section 403.121(2), Florida Statutes (1969).

A demand for a public hearing was made by the appellee paper company, and a hearing was so held by an examiner eighteen months later on January 26, 1973. Evidence of the fish kill and damages to the State were presented by the appellant Department. The appellee presented no direct evidence but did cross-examine appellant’s witnesses and raised constitutional issues. The examiner in his order held that he was without authority to rule upon the constitutional issues. He found the appellee paper company had emitted paper mill waste from its plant of quantity and quality sufficient to substantially reduce the dissolved oxygen level in the affected waters, and that this was the cause of the fish kill. He determined the sum of $12,-009.20 had been established by the Department as the value of the fish kill. This sum was computed by reliance upon a table of values for individual species of fish established by Chapter 17-11 of the Florida Administrative Code, adopted pursuant to the authority of Section 403.141(3), Florida Statutes (1973). The examiner further found investigative costs and expenses to be the sum of $2,104.30, for total damages of $14,113.50. These findings and conclusions were adopted by the Pollution Control Board in its order dated April 17, 1973. The appellee paper company failed to appeal this administrative order to the District Court of Appeal in accordance with provisions of Sections 403.121(3) and 120.-31, Florida Statutes (1973).

On August 17, 1973, the appellant Department filed a complaint in the Circuit Court for Bay County in accordance with provisions of Section 403.121 (2) (a), Florida Statutes (Supp.1972), requesting the circuit court to enforce the Pollution Control Board’s order against the appellee paper company. The statutory authority by which the State proceeded to enforce its order, specifically Section 403.121 (2) (a), Florida Statutes, was enacted by the Legislature in its 1972 session, effective July 1, 1972.

This statute did not become effective until one year after the fish kill, but it was in effect on the date of the administrative hearing on January 26, 1973. Prior to the adoption of this statute, the Department of Pollution Control could seek judicial enforcement of its order only in accordance with Section 403.141, Florida Statutes (1969). The provisions of this prior statute empowered the Department of Pollution Control to assess civil damages by an administrative order but did not allow for judicial enforcement without a judicial determination of liability and damages.

The trial judge, in the instant enforcement action, considered motions to dismiss and for partial summary judgment made by the appellee paper company. He dismissed the action for failure to state a cause of action with leave to the Department to amend its complaint for a de novo judicial determination of liability and damages for the claimed fish kill. The trial court further granted the appellee paper company a partial summary judgment, holding unconstitutional Section 403.141 (3), Florida Statutes (1973), stating:

“[The statute] is vague in that it permits purported compensatory damages to be assessed by ‘estimate’ and that the table of values for individual categories of fish established pursuant to said statute are unreasonable, arbitrary, and capricious so as to deny the Defendant due process of law because of the conclusive nature of the table. . . .”

We have two issues to determine in this cause: First, the validity of judicial enforcement under a statutory provision adopted subsequent to the subject fish kill; and, second, the constitutionality of an asserted conclusive evidentiary table of fish values promulgated by the Department pursuant to Section 403.141(3), Florida Statutes (1973).

Concerning the issue of judicial enforcement of the Department’s order, we said in State v. St. Regis Paper Company, 257 So.2d 253, 255 (Fla.1971), in applying the law applicable in June of 1971, that:

“[The Department] is . free to assess damages and costs under Fla. Stat. § 403.141(1), F.S.A. and either wait for voluntary payment under subsection (2), or . . . proceed forthwith to obtain a judicial determination of liability for damages and costs under subsection (3).” [Emphasis supplied]

The amendment in 1972 provided the Department with two alternative courses of action: (1) an administrative proceeding to determine liability and damages together with judicial enforcement of the final administrative order, or (2) a judicial determination of liability and damages and resulting , judicial enforcement. Appellant asks us to restrospectively apply this amendment to the instant case, claiming the amendment is procedural, not substantive. We disagree.

When the Legislature amended Chapter 403 in 1972, it eliminated the right of a defendant to require a judicial determination for liability and damages. This amendment restricts a right previously held and is substantive, not procedural. Under the circumstances of this cause, we decline to give retrospective effect to the 1972 amendments. Trustees of Tufts College v. Triple R. Ranch, Inc., 275 So.2d 521, 524 (Fla.1973); McKibben v. Mallory, 293 So.2d 48, 51 (Fla.1974).

The second issue concerns the constitutionality of the table of fish values promulgated by the Department as Chapter 17-11 pursuant to Section 403.141(3), Florida Statutes (1973). The trial court held the statute unconstitutional because it appeared to authorize the Department to conclusively establish the values of different species of fish. This is an evi-dentiary statutory provision. Construing this statute to authorize the establishment of conclusive evidentiary fish table values would constitute an absolute denial of the right to present evidence on a material issue and would violate constitutional due process of law.

Where scientific or technical information is difficult or expensive to obtain, statutes prescribing a competent means to establish such a fact are permissible. See Adams v. American Agricultural Chemical Co., 78 Fla. 362, 82 So. 850, 852 (1919). Although the manner of determining the value of fish killed may be statutorily established as presumptive or prima facie evidence of a fact, such a statute cannot conclusively prescribe a specific amount of damages for a particular number and species of fish killed.

We hold the fish table values as authorized by the statute in issue are proper and relevant to the question of damages. They are admissible and may be introduced as evidence and rebutted like any other evidence. The introduction into evidence of such table requires the trier of fact to accept the specified fish values as a presumed fact unless credible evidence to the contrary is introduced, in which case the fish values shall be determined from all the evidence without regard to any presumption. The trier of fact will make the final determination of the amount of damages based upon the weight and credibility of all the evidence in the cause.

It was the Legislature’s intent in the adoption of Chapter 403 to protect and maintain the waters of this state and to provide a realistic means to enforce that purpose. Our construction carries out that purpose without violating constitutional due process of law. We hold Section 403.-141(3), Florida Statutes (1973), constitutional in accordance with our construction herein.

That part of the judgment below dismissing the complaint with leave to amend is affirmed. The partial summary judgment holding Section 403.141(3), Florida Statutes (1973), unconstitutional is reversed. This cause is remanded for further proceedings not inconsistent herewith including the right of the appellant to file an amended complaint.

It is so ordered.

ADKINS, C. J., ROBERTS and ENGLAND, JJ., and ALDERMAN, TENCH and MORPHONIOS, Circuit Court Judges, concur.

      . Art. V, § 3(b) (1), Fla.Const.

      . “(2) Administrative remedies:
      “(a) The department may institute an administrative proceeding to establish liability and to recover damages for any injury to the air, waters, or property, including animal, plant, or aquatic life, of the state caused by any violation. After a hearing, the board may order that the violator pay a specified sum as damages to the state. Judgment for the amount of damages determined by the board may be entered in any court having jurisdiction thereof and may be enforced as any other judgment.”

      . The pertinent portions of the statute read as follows:
      “(2) Upon the request of any state agency or the alleged violator, the department may consider and assess these damages. If the amount so assessed is not paid within a reasonable time as prescribed by the department, the department may institute civil action in the appropriate court for a judicial determination of liability and damages.
      “(3) Nothing herein shall give the department the right to bring an action on behalf of any private person. Nothing herein shall prohibit- the department from proceeding forthwith to obtain a judicial determination of the liability and damages. No finding, written report or recommendation of the department made pursuant to this section shall be admissible in evidence in any action.”

      . Section 403.141(3), Florida Statutes (1973) is as follows :
      “In assessing damages for fish killed, the value of the fish is to be determined in accordance with a table of values for individual categories of fish which shall be promulgated by the department. At the time the table is adopted, the department shall utilize tables of values established by the department of natural resources and the game and fresh water fish commission. The total number of fish killed may be estimated by standard practices used in estimating fish population.”


text:
    THE FLORIDA BAR, Complainant, v. John B. MATTINGLY, Respondent.
    Nos. 48050, 48065.
    Supreme Court of Florida.
    Feb. 11, 1976.
    Richard C. McFarlain, Asst. Executive Director, Tallahassee, John P. McCoy, Bar Counsel, James Lester Kaney, Asst. Bar Counsel, Daytona Beach, and Wilson J. Foster, Jr., and David G. McGunegle, Asst. Staff Counsels, Tallahassee, for The Florida Bar, complainant.
    John R. Lawson, Jr. of Holland & Knight, Tampa, for respondent.
   PER CURIAM.

The Florida Bar filed on September 19, 1975, a petition for suspension of John B. Mattingly pursuant to Rule 11.07(2) of Article XI of the Integration Rule, asserting that the respondent, John B. Mattingly, was adjudicated guilty on September 12, 1975, of grand larceny upon a jury verdict in Case No. 75-342 in the Circuit Court for Volusia County, and at the same time was adjudicated guilty on a previous plea of nolo contendere to one count of grand larceny in Case No. 75-360 in the Circuit Court for Volusia County. These offenses constitute felonies under the laws of this state, and said respondent was sentenced to one year’s confinement followed by five years probation on each of these offenses. These convictions directly relate to client funds.

The respondent, on September 22, 1975, petitioned this Court for leave to resign pursuant to Rule 11.08 of the Integration Rule of The Florida Bar. The Florida Bar has recommended we either reject the petition or approve the resignation subject to the following conditions:

“a. That the minimal period for the resignation be five years with no petition for reinstatement to be accepted before completion of that period.
“b. That consideration of any subsequent petition be conditioned on his prior proof of restitution to any and all injured clients, whether listed in this response, alleged in the complaint or as may be discovered, and payment of all costs in disciplinary proceedings which would be dismissed if the resignation is accepted.
“c. That reinstatement be expressly conditioned upon proof of rehabilitation.
“d. That any subsequent reinstatement be further conditioned upon successful passage of a regular Bar examination to be taken.only after completion of the reinstatement proceeding.
“e. That law practice following any subsequent reinstatement be limited to practice not involving client’s trust funds with submission of an annual affidavit to The Florida Bar to that effect.
“f. That Mr. Mattingly be prohibited from working for lawyers or law firms in any capacity until reinstated.
“g. That this court publish an opinion in the Southern Reporter detailing the full circumstances of his resignation as set out in this response, the complaint and answer, copies attached, to fully inform the Bar, bench and public.”

We believe the conduct to be of such gravity that the acceptance of such resignation can be only upon the condition that John B. Mattingly be permanently barred from reinstatement and, therefore, the conditions suggested by the Bar are unnecessary.

Upon the failure of John B. Mattingly to accept such condition by notification to this Court within ten days from the rendition of this order, he shall be deemed suspended pursuant to Integration Rule 11.-07(2), and The Florida Bar is directed to proceed expeditiously with the pending disciplinary proceeding.

It is so ordered.

ADKINS, C. J., OVERTON and HATCHETT, JJ., and SMITH, District Court Judge, concur.

ROBERTS and BOYD, JJ., and BOYER, District Court Judge, dissent.


author: PER CURIAM. ENGLAND, Justice

text:
    The HOLLYWOOD BEACH HOTEL COMPANY, an Ohio Corporation, et al., Petitioners, v. The CITY OF HOLLYWOOD, a Municipal Corporation, organized and existing under the laws of the State of Florida, Respondent.
    No. 44642.
    Supreme Court of Florida.
    Jan. 21, 1976.
    Rehearing Denied April 13, 1976.

      Judson A. Samuels and Hugh S. Glick-stein of the Law Offices of Judson A. Samuels and Hugh S. Glickstein, Hollywood, and Howard M. Neu, North Miami, for petitioners.
    J. Bart Budetti, City Atty., and Myron H Burnstein, Special Asst. City Atty., for respondent.
   PER CURIAM.

This cause is before us on a petition for writ of certiorari to review the decision of the Fourth District Court of Appeal. We have jurisdiction pursuant to Article V, § 3(b)(3), Fla.Const.

As a general rule, an outline of the sequence of events in chronological order is not of vital importance. However, the instant case represents a significant exception to this rule.

Petitioners-plaintiffs owned a 105 acre plot of real property in the City of Hollywood which was zoned RA-5 (golf course use) except for a 400 x 400-foot portion in the southwestern corner of same which was zoned RC-12 (multiple family). In late 1968, the petitioners decided to develop the property into a 6,000 unit complete community and petitioned the Hollywood Planning and Zoning Board to zone the entire plot as RC-12 (multiple family). This change was recommended to the Hollywood City Commission by the Planning and Zoning Board, whereupon the City Commission adopted Ordinance 0-69-46, hereinafter referred to, with the preamble reading in part, as follows:

WHEREAS, the City Commission, after several public hearings and only after an independent investigation and study, recognizes that the character of the neighborhood has gone through a series of changes so as to require the granting of the change of zone as hereinafter provided in order to properly preserve and protect the public interest, and
WHEREAS, the City Commission, after careful study of all aspects of the petitioner's application, including traffic patterns, population density, aesthetic considerations, effect upon single family residences in the area, as well as the effect upon the business 'establishments in the downtown area, considers that the public interest not only justifies but requires that the change of zone be granted so as to permit construction of the complex in accordance with the circumstances recited herein and as the same appears on the site development plan, attached hereto and made a part hereof as though fully recited herein.” (Emphasis supplied.)

On April 2, 1969, after numerous public bearings and conferences between the City and the petitioners, a comprehensive site plan was approved and the City Commission by a 4 to 1 vote adopted Ordinance 0-69-46 which rezon'ed said property to RC-12 uses. In early December of 1969 in a City election, two commissioners who voted for the ordinance were defeated by candidates publicly opposed to same. On December 17, 1969, at the second meeting following their election, the two newly elected commissioners joined with the commissioner who had originally voted against the ordinance and passed a motion to petition the Zoning Board to reevaluate the rezoning affected by the foregoing ordinance. This petition did not contain and was not grounded upon any allegations necessitating rezoning.

On December 30, 1969, petitioners obtained a building permit from the State for the construction of the first five million dollar building. The Zoning Board met on January 12, 1970, and considered the Commission’s petition to reevaluate the zoning affected by the above ordinance. At this meeting, the Board stressed the need for zoning stability and stated that the Commission had never “come back” with a request for a change in a duly enacted zoning ordinance. The motion was tabled and the Board at its February 9th meeting requested clarification from the Commission.

In the meantime, on January 23, 1970, the City issued a building permit for same. At this point, it must be noted the uncon-troverted testimony established that it had taken some nine or ten months (April 1969-Jan. 1970) for the petitioners to complete the necessary preparations to begin construction. During this period and subsequently, petitioners expended some $191,-269.66.

.On February 18, 1970, the Commission in response to the request for clarification by the Zoning Board passed a motion to petition the Zoning Board to rezone the western one-third of the tract to multiple family and the eastern two-thirds to single family golf course use. On February 19 the City filed this petition with the Zoning Board.

On February 21, the petitioners brought an action for a permanent injunction with an accompanying request for a temporary injunction against the City. At the hearing on the temporary injunction and the City’s motion to dismiss on March 4, the following pertinent testimony was given: The architect for the project testified that the entire site plan would be destroyed by rezoning part of the property; a member of the Zoning Board testified that the City’s petition for rezoning did not contain any allegations that a change in the area where the property was situate necessitated rezoning; and the petitioner, Ben Tobin, testified as to the amount of money expended and that all activities had been brought to a halt because of the City’s petition to rezone.

The trial court denied the temporary injunction on the grounds that the application was premature on March Sth. On March 13th, the City’s Motion to Dismiss was denied. The City then voted to file an interlocutory appeal on March 16th and such appeal was filed on March 19th.

On March 23rd, the Zoning Board denied the petition to rezone.

The Commission next voted on March 25, 1970, to appeal this denial to the Zoning Board of Appeals, the members of which were comprised solely of the City Commissioners. Such appeal was filed but no definitive action was taken by the Board of Appeals until Feb. 17, 1971. However, at its April 5, 1970, meeting, the Board of Appeals voted to table the appeal for thirty to sixty days. On June 17th, the Board of Appeals discussed the tabled appeal and voted that it be tabled no longer than the first meeting in August.

On July 15th, the City Commission, in response to a request for an extension of the building permit, voted to extend the building permit indefinitely until the litigation was completed.

At the August 8th meeting of the Board of Appeals, the appeal was left tabled due to the possibility that the City might purchase the property in dispute.

Then, on August 21st, the District Court affirmed the trial court’s denial of the City’s motion to dismiss.

At its September 2nd meeting, the City Commission voted to petition the District Court for rehearing and if unsuccessful, to petition the Supreme Court for certio-rari. Prior to the taking of this vote, one of the Commissioners who voted in the majority, stated that these actions should be taken since “the City could operate with more leverage as to the purchase of the property if the case remains in Court.” The District Court denied rehearing on September 29, 1970; this Court denied certiorari on January 7, 1971; and the City filed its answer to petitioner’s complaint on February 17, 1971.

On the same day the Board of Appeals (City Commissioners) without prior notice to the petitioners, affirmed the Zoning Board’s denial of petition to rezone; and then the (same people sitting as) City Commissioners rescinded its motion of July 15, 1970 which had extended the permit until the end of the litigation between the parties and mandated that the petitioners exercise their rights .under the building permit within ninety days.

Prior to the vote on the petition for rezoning and the ninety-day motion, one of the Commissioners who voted for the petition by the .City to rezone, stated that he would “now vote” to affirm the Zoning Board’s denial since he did not think the project would ever be built without deviations which would have to come before the Commission for approval. On March 17th, the petitioners requested the return of the permit fee until building conditions improved. This was denied.

In regard to the City’s repeal of the building permit allowing an extension to the end of the litigation, it is important to note that during the ninety-day period referred to above, the injunction suit was actively prosecuted by both parties, to-wit: on March 12, 1971, petitioners moved to strike parts of City’s Answer; on March 29, 1971, the petitioners moved to amend Complaint; on April 12, City moved for judgment on the pleadings; and on April 20, City’s motion for judgment on pleadings was denied and the petitioners’ motion for leave to amend was granted.

From June 23, 1971 to January 5, 1972, the City negotiated with the petitioner for the purchase of the property. In the December 1971 City elections, the remaining two Commissioners who had voted for Ord. 0-69-46 were defeated by candidates publicly opposed to it. At its January 5, 1972 meeting, the Commission voted not to buy the property even though a verbal understanding had been reached as to both price and method of financing. The Commission again then passed unanimously a motion requesting the Zoning Board to reconsider the zoning implemented by Ord. 0-69-46, and, in addition thereto, to recommend suitable rezoning (a matter which was not raised in its first request for reevaluation). The Commission also then took the first vote on a new density ordinance which would have the effect of rendering the petitioners’ site plan useless. Petitioners sought a “temporary injunction” (incorporating all prior pleadings before the court) on February 12. On February 14, the Zoning Board approved a rezoning plan and recommended same to the City Commission.

It is significant to note that at the Zoning Board meeting there was no allegation of a change in the neighborhood as basis for the rezoning.

At the hearing on the temporary injunction, the petitioners submitted testimony: that during the almost one year that the Commission had considered action on the petition to rezone, this delay coupled with newspaper coverage of same made it impossible to obtain financing and discouraged investors; that no prior notice had been given of the City’s decision on January 5, 1972, not to purchase the property; and that due to these prolonged negotiations, the development had been kept in limbo; that the proposed new density ordinance destroyed the site plan and rendered the building permit useless.

The temporary injunction filed on February 12, 1972, was denied on February 18, 1972. The density ordinance received final passage on March 1, 1972, and on March IS, the Commission voted unanimously to petition the Zoning Board to rezone the property in question. The Zoning Board approved same on April 17 and on June 28, the Commission enacted the rezoning ordinance.

On April 27, the trial court held a hearing at which the petitioners submitted the following testimony: $191,269.66 had been expended in reliance on the rezoning and the permit; that the density ordinance and proposed rezoning completely destroy the site plan; and that if the injunction was granted, the petitioners intended to build if financing and the market were suitable. The City Planner testified that the disputed ordinances did not destroy the site plan; however, at the continuation of the hearing on May 11, the City Planner then admitted that said ordinances did destroy the petitioners’ site plan.

On July 19, the trial court issued a permanent injunction enjoining the City from enforcing both the density and subsequent rezoning ordinances against the petitioners and ordered that the City return the building permit fee.

The District Court of Appeal, Fourth District, reversed and remanded with instructions and this Court granted certiorari.

Three issues require our attention: First, whether the Fourth District Court of Appeal reevaluated the evidence and substituted its judgment for that of the chancellor; Second, whether the principle of equitable estoppel precluded the City of Hollywood from enacting the disputed ordinances; and Third, whether the chancellor erred in finding as a matter of law that the City’s retention of the petitioners’ permit fee constituted a forfeiture? All three queries must be answered in the affirmative. Accordingly, the decision of the Fourth District Court of Appeal is quashed as to the first and second issues and affirmed as to the third.

It is the prevailing rule in this jurisdiction that an appellate court cannot reevaluate the evidence and substitute its judgment for that of the trial court. Westerman v. Shell’s City, Inc.; Greenwood v. Oates After comparing the chancellor’s findings with the recital of facts by the Fourth District, it is only too clear that the District Court violated this rule. The chancellor found that because of the delays caused by the City the developer was unable to build within the required ninety days due to the economic conditions which precluded same. Whereas, the District Court in its reevaluation stated that the developer “elected not” to proceed and “surrendered” his building permit.

“To elect” is defined as to choose by preference a course of action. In turn, “choice” is defined as the “voluntary and purposive or deliberate action of picking, singling out, or selecting from two or more that which is favored or superior.” Petitioners “chose” not to build within the ninety-day period; correspondingly, it is undisputable that the trial court found this “choice” to be due to the unstable economic and financial conditions which faced the petitioners because of the delays caused by the City, and not because of a “voluntary choice” by the petitioners. The petitioners’ situation is best described in the proverbial terms of being put between a “rock and a hard spot” by the City. The trial court also found that the petitioners had not surrendered the permit, whereas the District Court in effect found that such a surrender had been made on the basis of its reevaluation. Thus, the principles enunciated by this Court in Westerman, supra, and Greenwood, supra, require reversal on this point alone.

The doctrine of equitable estoppel may be invoked against a municipality as if it were an individual, Salkolsky v. City of Coral Gables; Texas Co. v. Town of Miami Springs; City of North Miami v. Marguiles; and the City’s contention that the doctrine is inapplicable where actual physical construction has not yet begun, is without merit. Salkolsky, supra; Bregar v. Britton; Frink v. Orleans Corporation; Marguiles, supra; City of Hollywood, supra; City of Gainesville v. Bishop. As correctly stated by the Fourth District in City of Hollywood, supra, at 869, the doctrine of equitable estoppel will preclude a municipality from exercising its zoning power where

“. . . [A] property owner (1) in good faith (2) upon some act or omission of the government (3) has made such a substantial change in position or has incurred such extensive obligations and expenses that it would be highly inequitable and unjust to destroy the right he acquired. Salkolsky v. City of Coral Gables, 151 So.2d 433 (Fla.1963).”

This Court has never had the occasion to decide if the exception to the Salkolsky rule alluded to, but not invoked, by the Fourth District should be established, i. e., that a city may revoke a building permit even after good faith reliance by the landowner on the zoning law and even after a substantial change has been made in his position or incurring extensive obligations, “. . . if the municipality can show that some new peril to the health, safety, morals, or general welfare of the municipality has arisen between the granting of the building permit and the subsequent change [in] zoning . . . .”

While we cannot preclude the adoption of such an exception in the future, we have no reason to consider it in the instant case.

In applying the Salkolsky rule, the Fourth District found that,

. . [T]he plaintiffs obtained a building permit from the City of Hollywood on January 23, 1970. Without actual or constructive knowledge of any impending zoning change, the plaintiffs spent almost two hundred thousand dollars on a site plan, models of the community, architect’s plans and specifications and building permits. This money was spent in good faith reliance on the city’s rezoning of the plaintiffs’ land to RC-12 multiple family. Under these circumstances the City of Hollywood was equitably estopped from changing the zoning of the plaintiffs’ land from RC-12. The plaintiffs had a vested property right in the continuation of the RC-12 zoning.”

With this conclusion we agree. However, the District Court then held that

“. . . [W]hen the city commission decided not to change the zoning classification of the plaintiffs’ property and notified the plaintiffs that they could start construction under their building permit and the plaintiffs having elected not to proceed or initiate construction on the land and voluntarily surrendering their building permit to the city in March 1971, the plaintiffs thereby relinquished and forfeited their vested right under the building permit and in the continuance of the RC-12 zoning classification of their land. The city could then validly rezone plaintiffs’ property from RC-12 to another classification.”

It would be unconscionable to allow such a holding to endure since it fails to take into account the unique facts which dominate the instant case. First, it is undeniable that the only circumstance which necessitated the ultimate rezoning was the adverse political climate which wrought the defeat of every commissioner who had voted for Ord. 0-69-46. Second, the delays caused by th'e City Commissioners in having allowed the appeal from the Zoning Board’s denial of its rezoning petition to its own members sitting as the Board of Appeals to languish in limbo for some eleven months, were countenanced with a full understanding that any immediate rezoning would meet with adverse legal consequences. This conclusion is borne out by the City attorney’s repeated warnings to the Commission that any such ordinance would be invalidated under this Court’s decision in Salkolsky, supra. Thus, it is clear that the City sought to accomplish by delay that which it could not effect by an immediate rezoning. Indeed, we must agree with the conclusion of the Fourth District that the City affirmed the Zoning Board’s denial of its rezoning petition on February 17, 1971, only

"After it became apparent to the city commission that the plaintiffs could not profitably carry out their project because of the prevalent poor economic conditions

It is only too clear that the City was aware of the adverse effects that the resulting delays were having on the petitioners’ projects in light of the testimony adduced at the trial court’s March 4, 1970, hearing on the City’s motion to dismiss, i. e., that all activities had been brought to a halt until the City made up its mind; that a partial rezoning of the property would destroy the petitioners’ site plan; and that a one-year delay in construction would add three quarters of a million dollars to the cost of the first building. It must, therefore, be assumed in light of this and other testimony that the Commission knew that the petitioners could not proceed to build or attract financing from potential investors until the matter of rezoning was definitely decided. It is also reasonable to assume that the City was aware that with each day it deferred action that the building market and the national economy were constantly deteriorating into a recessionary state.

It must also be remembered that at its February 17, 1971, meeting the Commission in one fell swoop without prior notice to the petitioners: affirmed after an eleven month delay the Zoning Board’s denial of its petition to rezone; repealed its motion of July 15, 1970, which had extended the life of the permit until the completion of the litigation between the parties, and mandated that the petitioner proceed with construction within ninety days.

Under the circumstances, these actions were arbitrarily taken. The affirmance of the Zoning Board’s decision had the dual effect of lifting the petitioners out of limbo but casting them into the depths of the inferno. This is especially true when the affirmance is coupled with the repeal of the motion extending the permit. Such an indefinite extension was a municipal action upon which the petitioners in good faith had substantially altered their position from one of readiness to build to one of necessarily dismantling their construction organization in order to actively assert their rights in the prosecution of their suit against the City. Such an action and reliance thereon satisfies the requirements of the Salkolsky rule.

The City’s contention that the Commission intended this extension to remain in effect only until the end of the litigation on its interlocutory appeal is without merit. The motion was not so worded, but clearly stated that the permit was to be extended until the litigation between the parties was completed. If the City intended to limit this extension, it should have worded the motion accordingly. On this point, the applicable analogy must be drawn to the doctrine of statutory and constitutional interpretation of expressio unius est exclusio alterius. Furthermore, if the motion was so limited, its repeal would have been automatically affected when this Court notified the parties that we had denied certiorari, and there would have been no need for the Commission to expressly repeal the motion.

As noted previously, the suit was actively prosecuted by both parties during the ninety-day period and litigation thereon has continued up until the present time.

The mandated ninety-day period was an unreasonable lack of time in view of the above arbitrary actions by the City and its knowledge that it had taken the petitioners some nine or ten months to complete the necessary preparations to achieve a state of readiness to begin construction on January 23, 1970, when they paid some $15,000.00 for the building permit. Under these circumstances the petitioners’ failure to build and even their request for the return of the permit fee, until economic conditions improved did not constitute a surrender of their permit or a relinquishment of their vested right in the continuance of the RC-12 zoning.

This Court would be undeserving of its equitable powers if we did not enjoin the two disputed ordinances. Indeed, as this Court stated in Texas Co., supra, at 809, we find the petitioners’ cause to be “pregnant with equity.” The arbitrary action by the City Commission sub judice has not even produced an embryo and thus will not be countenanced by this Court. Salkolsky, supra; Texas Co., supra.

Every citizen has the right to expect that he will he dealt with fairly by his government. Marguiles, supra, at 425-26. “Unfair dealing” by a municipality can also serve as the basis for the invokement of equitable estoppel. City of Jacksonville v. Wilson, While a City Commission certainly possesses the prerogative of deciding to defer action on such a proposal over a long period of time, it must assume the attendant responsibility for the adverse effect it knows or should know its deliberate inaction will have upon the parties with whom it is dealing. In the instant case, the course of inaction chosen by the City and its subsequent arbitrary actions must necessarily be equated with “unfair dealing.” Wilson, supra; Marguiles, supra.

For the reasons expressed in its opinion the District Court correctly reversed the chancellor’s finding as a matter of law that the retention of the building permit fee by the City would constitute a forfeiture. City of Hollywood, supra, at 871. The case of City of Miami v. Miller, relied upon by the petitioners, is inapplicable to the cause now before us. The record does not reveal whether or not the City has returned the fee to the petitioners. In the event the fee is in the petitioners’ possession, it must be returned to the City, and in this regard the District Court is affirmed.

In other respects the opinion of the Fourth District Court of Appeal is quashed and this cause is remanded for entry of an opinion consistent with the views here-inabove expressed.

Affirmed in part and reversed in part.

It is so ordered.

ADKINS, C. J., ROBERTS and HAT-CHETT, JJ., and McCRARY, Circuit Judge, concur.

ENGLAND, J., dissents with an opinion, with which OVERTON and SUNDBERG, JJ., concur.

ENGLAND, Justice

(dissenting).

I dissent. There is no direct conflict between the district court’s decision and the decision of any other Florida appellate court. The majority below carefully analyzed the decisions alleged by petitioners as a basis for the exercise of our jurisdiction. It found, however, that they did not appropriately apply to command the result which petitioners there sought.

I view our constitutional role as being more narrow than providing litigants with a second appeal in select cases, as is done here, and I would discharge the writ of certiorari.

OVERTON and SUNDBERG, JJ., concur.

      . City of Hollywood v. Hollywood Beach Hotel, 283 So.2d 867 (Fla.App. 4th 1973).

      . 265 So.2d 43 (Fla.1972).

      . 251 So.2d 665 (Fla.1971). e. g. First Atlantic National Bank v. Cobbett, 82 So.2d 870 (Fla.1955) ; In Re Baldridge’s Estate, 74 So.2d 658 (Fla.1954) ; Povia v. Melvin, 66 So.2d 494 (Fla.1953) ; Ford Motor Co. v. Waters, 273 So.2d 96 (Fla.App. 3d 1973) ; Nixon Construction Co. v. Dover, 218 So.2d 458 (Fla.App. 1st 1969) ; St. Paul Mercury Ins. Co. v. Conley, 201 So.2d 618 (Fla.App. 4th 1967) ; 2 Fla.Jur. Appeals, § 346 (1963).

      . City of Hollywood, supra, at 868-870.

      . Webster’s Third New International Dictionary 731 (1961).

      . Id. at 395.

      . 151 So.2d 433 (Fla.1963).

      . 44 So.2d 808 (Fla.1950).

      . 289 So.2d 424 (Fla.App. 3d 1974).

      . 159 Fla. 646, 75 So.2d 753 (Fla.1954).

      . 32 So.2d 425 (Fla.1947).

      . 174 So.2d 100 (Fla.App. 1st 1965).

        .City of Hollywood, supra, at 870 interpreting Texas Co., supra, at 809-810. It seems clear that this Court in Texas Co., supra, was speaking of the exception in the City’s charter for the procedure of enacting emergency ordinances and not to an exception to the rule now under consideration.

      . City of Hollywood, supra at 870. (Emphasis added.)

      . Id.

      . City of Hollywood, supra, at 868. (Emphasis added.)

      . 157 Fla. 838, 27 So.2d 108 (1946).

      . 148 Fla. 349, 4 So.2d 369 (1944).


author: PEARSON, Judge.

text:
    Betty P. HOSKIN, Appellant, v. James R. HOSKIN, Appellee.
    No. 75-414.
    District Court of Appeal of Florida, Third District.
    Jan. 20, 1976.
    Charles J. Crowder, South Miami, for appellant.
    Abbott, Frumkes & Alhadeff and Eliot C. Abbott, Miami Beach, for appellee.
    Before BARKDULL, C. J., and PEARSON and HENDRY, JJ.
   PEARSON, Judge.

The appellant Betty Hoskin is the former wife of the appellee James R. Hoskin. Their marriage was dissolved on June 4, 1974. One of the provisions of the final judgment was: “Until the said resident dwelling can be sold by the parties, the wife is hereby granted exclusive possession thereof to reside therein with the minor children of the parties.” On June 20, 1974, the former husband, James Hoskin, filed a complaint for partition in which he alleged that by action of law he was a tenant in common of the residence property and prayed for a public sale of the property in order to achieve the partition. The trial judge entered a summary final judgment granting the partition. This appeal is from that judgment.

The substantial question raised is whether the circuit court' may order a partition of property which is being occupied by a divorced wife and minor children with the wife as the head of the family. The appellant maintains that the court may not proceed to partition property under such circumstances. She relies upon two propositions. The first is that where property is burdened with the support of a divorced wife and children, it may not be partitioned; the second is that the property on which the former wife and children are residing has acquired homestead character and, as such, is exempt from partition sale by Fla.Const. Art. 10, § 4. The plaintiff husband urges that the judgment of partition is correct because it is an execution of the dissolution judgment as that judgment was intended and interpreted by the trial judge who tried both the dissolution action and the partition action.

We hold that the trial judge is without power to amend his judgment in this manner and that judgment of partition may not lie against the homestead of the wife and children under the circumstances of this case. The residence of the parties was, during the marriage, held as an estate by the entirety. At the time of the dissolution of marriage, the former husband and wife became tenants in common. See Fla.Stat. § 689.15, and Bergh v. Bergh, Fla.App.1961, 127 So.2d 481. The final judgment dissolving the marriage affirmatively shows that the trial judge recognized this fact and provided for the use of the residence in the following portions of that judgment.

“8. During the marriage the parties owned as an estate by the entirety a single family resident dwelling situate at 11620 S.W. 138th Street, Miami, Florida, the legal description of which is:
Lot 7, Block 71, R'EPLAT OF PORTION OF RICHMOND HEIGHTS, according to the Plat thereof recorded in Plat Book 60 at page 21 of the Public Records for Dade County, Florida.
There are two mortgages encumbering the said real property, a first mortgage given to Washington Security Company, dated May 3, 1962 and subsequently assigned to Federal National Mortgage Associations the payments on which are being collected by Atico Mortgage Corp.; and a second mortgage given to First National Bank of South Miami, dated October 6, 1972. By virtue of this Final Judgment the parties shall now hold title to said property as tenants in common. The parties shall therefore share equally in all payments required on account of the two enumerated mortgages and on all Ad Valorem Taxes thereon and fire and extended coverage insurance thereon until such time as said residence is sold and upon sale of said residence the net proceeds from the sale shall be divided equally between the parties. All of the furniture, furnishings, fixtures, appliances, tools and equipment in and about the said resident dwelling shall also be owned equally by the parties and a genuine attempt shall be made by the parties, upon sale of the resident dwelling, to divide such personal property among them in as nearly equal amounts as can be agreed upon. However, if no agreement can be made then the parties shall own same equally, shall dispose of same and divide the proceeds between themselves equally.
“9. Until the said resident dwelling can be sold by the parties the wife is hereby granted exclusive possession thereof to reside therein with the minor children of the parties. The Respondent shall remove himself from the said premises and vacate same on or before Saturday, June 1, 1974 turning the keys therefor over to the Petitioner or to her representative. The Respondent may remove all of his personal effects from the said resident dwelling but shall not remove any of the furniture, furnishings, fixtures or appliances, tools or equipment situate therein.”

It is possible that, as contended by the former husband, the trial judge intended that the property should be quickly sold. But if this is so, it nowhere appears in the judgment. It is equally possible that the trial judge intended that the parties, as intelligent parents interested in the welfare of their children, should not sell the house until a suitable replacement could be found and its purchase arranged for. The only certainty involved as to the future of the residence property is that each party was to bear one-half of the expenses of the mortgage payments, taxes and maintenance, and that the wife and the children were to occupy the property until it was, in fact, sold.

The residence of the parties was undoubtedly a homestead during the period prior to the dissolution of the marriage. At the time of the dissolution, the father was no longer the head of the family and the mother was placed in his stead by the judgment of dissolution which granted to her the custody, control and responsibility for the children. Therefore, the property was a constitutional homestead at the time of the filing of the complaint for partition sixteen days after the judgment of dissolution.

The remaining question is whether or not Fla.Const. Art. 10, § 4, prohibits the partition of a homestead property. We hold that it does.

We take special note of the cases brought to our attention by the appellant. See Weed v. Knox, 1946, 157 Fla. 896, 27 So.2d 419; Pollack v. Pollack, 1947, 159 Fla. 224, 31 So.2d 253; Black v. Miller, Fla.App.1969, 219 So.2d 106; Coggan v. Coggan, Fla.App. 1969, 230 So.2d 34; and Daniels v. Katz, Fla.App.1970, 237 So.2d 58. In all of these cases, there appears the basic proposition

“ . . . that a trial judge in a divorce case has inherent authority to decree exclusive possession of entireties property to the wife, for use as her residence, even though subsequent to the divorce such property will be held by the parties as tenants in common. The husband is thereby sufficiently denied the right to immediate possession which, pursuant to a long-standing rule, operates as a bar to his entitlement to present partition.” 230 So.2d 34 at 35.

The appellee would argue that these cases are distinguishable from our present case where the appellant has not been given “exclusive possession” by the trial court. However, the appellee does concede in his brief that the appellant was given “exclusive possession” of the residence at least until the house could be sold. This, we hold, satisfies the requirements for “exclusive possession.” Accordingly, the appellant is protected by the above cited cases from the consequences of the appealed order of partition.

Therefore, even under the present circumstances, we find ourselves specifically prohibited by the Florida Constitution and cited cases from affirming an order of partition of homestead. We do point out, however, that the appellant is still subject to the lower court order of June 4, 1974, calling for a sale of the residence, which the trial judge unquestionably intended should take place within a “reasonable time.” Therefore, the appellant, under the dissolution order, is not afforded protection from orders other than the present partition order and, accordingly, may not avoid the consequences of a contempt, or other appropriate, order that the trial court deems fit to enter, if so petitioned.

The order of partition is hereby reversed and the cause remanded.

HENDRY, J., dissents.

      . * * * * *
      “SECTION 4. Homestead; exemptions. — ■
      “(a) There shall be exempt from forced sale under process of any court, and no judgment, decree or execution shall be a lien thereon, except for the payment of taxes and assessments thereon, obligations contracted for the purchase, improvement or repair thereof, or obligations contracted for house, field or other labor performed on the realty, the, following property owned by the head of a family;
      “(1) a homestead, if located outside a municipality, to the extent of one hundred sixty acres of contiguous land and improvements thereon, which shall not be reduced without the owner’s consent by reason of subsequent inclusion in a municipality; or if located within a municipality, to the extent of one-half acre of contiguous land, upon which the exemption shall be limited to the residence of the owner or his family;
      “(2) personal property to the value of one thousand dollars.
      “(b) These exemptions shall inure to the surviving spouse or heirs of the owner.
      “(c) The homestead shall not be subject to devise if the owner is survived by spouse or minor child, except the homestead may be devised to the owner’s spouse if there be no minor child. The owner of homestead real estate, joined by the spouse if married, may alienate the homestead by mortgage, sale or gift and, if married, may by deed transfer the title to an estate by the entirety with the spouse. If the owner or spouse is incompetent, the method of alienation or encumbrance shall be as provided by law.”
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