author: BRADLEY, Judge.

text:
    Ina H. Bowden SUMMERLIN v. C. Eugene BOWDEN.
    Civ. 1241.
    Court of Civil Appeals of Alabama.
    Jan. 11, 1978.

      Joe C. Cassady for Cassady, Fuller & Marsh, Enterprise, for appellant.
    Joe S. Pittman for Pittman, Whittaker & Hooks, Enterprise, for appellee.
   BRADLEY, Judge.

This appeal is from that part of a judgment rendered by the Circuit Court of Coffee County denying plaintiff-appellant the right to receive a portion of the proceeds from a settlement of a fire insurance claim. Appellant also appeals from the denial of a motion for a rehearing on that judgment.

Before dealing with the primary issue presented to this court for review, we must consider a procedural matter which occurred subsequent to the filing of this appeal.

After the termination of the proceedings in favor of appellee, appellant sought to amend or modify the court’s judgment that appellant was not entitled to share in the insurance proceeds received by her former husband. When the trial court refused to amend or modify its judgment in the matter, appellant initiated her appeal. However, after her appeal had been filed, counsel for appellant requested that the trial court include in the record that court’s prior decrees involving the parties, i. e. the original divorce decree and the subsequent modification of the divorce decree. Appellant’s effort to have these decrees included in the record was apparently premised on Rule 10(f) of the Alabama Rules of Appellate Procedure which permits the trial court to correct or modify the record for appeal. The court granted appellant’s request over the objection of the attorney who represented appellee, and informed both parties that it had taken judicial notice of the earlier decrees and had considered them in the formulation of its judgment. Appellee now contends that the trial court was incorrect in allowing these documents to be included in the record on appeal and that the court’s prior decrees involving the parties should not be considered by this court in deciding this appeal.

However, we need not reach a decision on whether the trial court’s inclusion of this material in the record was incorrect since appellee’s attorney failed to raise this issue in a proper manner. Counsel for ap-pellee sought to present this matter in his brief to this court. Nevertheless, there is nothing before us to indicate that he urged us to strike from the record the disputed documents. The proper procedure for removing from the record various documents, affidavits or other items which are included in the record for appeal by the trial court acting pursuant to Rule 10(f) is by means of a motion to strike the matter objected to. United States v. Sclafani, 487 F.2d 245, 253 (2d Cir. 1973). See Panaview Door & Window Co. v. Reynolds Metals Co., 255 F.2d 920, 922 (9th Cir. 1958); Black & Yates, Inc. v. Mahogany Assn., 129 F.2d 227, 237 (3d Cir. 1941).

Rule 27 of the Alabama Rules of Appellate Procedure states that unless the rules provide a specific form or manner for seeking relief, an application for relief must be made by filing a motion. This motion must of course be served on all other parties and it must specifically state the grounds on which it is based and the relief sought. Since Rule 10(f) does not prescribe a particular form for challenging a trial court’s decision to include in the record material which would otherwise be omitted on appeal, a motion under Rule 27 is necessary before the matter admitted into the record may be stricken. Consequently, we believe appellee’s counsel should have laid the foundation for asserting that the court erred in taking judicial notice of its prior decrees by first moving this court to strike these decrees from the record.

Because there was no motion to strike the disputed documents from the record, the trial court’s prior decrees, as evidenced by the documents before us, must remain in the record for consideration by this court. These documents indicate that in both the original divorce decree and the subsequent modification of that decree, the trial court ordered the party who used and occupied the real property and dwelling house to “assume the monthly mortgage payments and insurance” on the parties’ jointly owned property. However, despite the inclusion of its prior decrees in the record on appeal, we believe there was sufficient evidence presented at trial to support the trial court’s judgment in favor of appellee.

The primary issue for consideration on appeal concerns whether appellant is entitled to receive a portion of the proceeds paid on appellee’s fire insurance claim. The following facts are relevant to our discussion of this issue.

As we have alluded earlier, the appellant and appellee were formerly married. Each presently owns a one-half undivided interest in a house and lot in Enterprise, Alabama. The property was acquired during the marriage, and insurance existed to cover the property in case of damage or destruction. Upon the dissolution of the marriage, the wife (appellant) was given the right to occupy the house until further orders of the court. Shortly after the divorce was granted, the husband (appellee) can-celled the insurance coverage on the house and the wife took out a new policy on the property. Subsequently, by order of the same court acting in pursuance of a petition to modify the divorce decree, appellee was given the right to occupy the property.

During the time appellant occupied the property she paid the mortgage payments and the insurance premiums. The policy which she had taken out listed both appellee and herself as beneficiaries. However, when she moved out of the house she can-celled the insurance policy which she had obtained and ceased making the mortgage payments. Thereupon, the appellee commenced making the mortgage payments and took out a fire insurance policy on the property. The coverage of the policy was $20,000 and the beneficiaries of that policy were appellee and the mortgage holder.

In 1974 the house was damaged by fire. As a result of the fire, the insurance company paid the beneficiaries of the policy, i. e. appellee and the mortgage holder, $8,052.

The insurance proceeds are being held by the .mortgage holder pending a decision on whether to repair the damaged premises or to sell the property in its damaged condition.

Appellant claims that .the trial court erred in holding that she was not entitled to any of the money resulting from the settlement of the fire insurance claim. The basis of appellant’s claim is her contention that Alabama law entitles the complaining party to a portion of the insurance proceeds received by a person with whom the complaining party is in joint ownership if the “equities” of a particular situation merit such action.

On the other hand, appellee asserts that the trial court acted correctly in refusing to allow appellant to receive a portion of the proceeds of the fire insurance claim and offers the cases of Bell v. Barefield, 219 Ala. 319, 122 So. 318 (1929); Miles v. Miles, 211 Ala. 26, 99 So. 187 (1924), and Murray v. Webster, 256 Ala. 248, 54 So.2d 505 (1951), as authority for this proposition.

In Murray v. Webster, supra, the supreme court said:

“. . . It is well settled in this jurisdiction that ‘insurance taken by one with an insurable interest in the property, who pays the premiums * * * out of his own funds, is a personal indemnity to the insured.’ North Assurance Co. v. Stewart, 228 Ala. 201, 153 So. 243, 245; Montgomery v. Hart, 225 Ala. 471, 144 So. 101; Bell v. Barefield, 219 Ala. 319, 122 So. 318; Westchester Fire Ins. Co. v. Green, 223 Ala. 121, 134 So. 881. A clearer statement of this doctrine, however, is thus expressed in the Bell v. Barefield case, supra: ‘The general rule, sustained by the great weight of authority, is, in the absence of anything in the instrument creating the estate, or of agreement to that effect, between the parties, no duty rests upon the one or the other to insure for the benefit of a remainderman or his cotenant, and insurance taken by one with an insurable interest in the property, who pays the premiums thereon out of his own funds, is a personal indemnity to the insured. * * * ’ (Italics supplied). 219 Ala. 321, 122 So. 319.”

In the instant case the instrument which created the parties’ jointly owned estate in the property did not require that either party insure the property for the benefit of the other. Likewise, no agreement was subsequently entered into which bound either party to obtain insurance for the protection of the other joint owner.

Nor do the court’s prior decrees concerning appellant and appellee’s divorce demonstrate that the party who occupied the house was required to obtain insurance for the protection of the non-occupying party. Both the original divorce decree and the subsequent modification of that decree ordered the occupying party to pay the mortgage payments and insurance premiums on the couple’s real estate. And in appellant’s suit to obtain a portion of the insurance proceeds, the trial court apparently construed the provisions in its prior judgments dealing with the maintenance of insurance on the property to be for the protection of the mortgagee rather than the non-occupying party. Such a construction was reasonable in view of the fact that the existence of insurance on the property would provide only an indirect benefit to the non-occupying party. In other words, the existence of insurance protected the mortgagee by creating a potential fund which could be used to compensate the mortgagee should the security for his loan be damaged or destroyed. The receipt of the insurance proceeds by the mortgagee would in turn provide an indirect benefit to the non-occupying party since the mortgagee would be protected by the insurance money and would not be forced to seek payment from the non-occupying party on his or her obligation on a mortgage indebtedness which was no longer secure due to the loss or damage of the collateral on which that indebtedness was based. However, the possibility of an indirect benefit which existed on behalf of the non-occupying party (appellant) as a result of the trial court’s requirement that the occupying party maintain insurance on the couple’s jointly owned property did not create a duty on appellee to insure the property for the benefit of appellant. Instead, the relevant provisions of the trial court’s divorce decrees may be reasonably construed as requiring only that appellee insure the property for the benefit of the mortgagee. Indeed, the appellee’s testimony at trial indicates that this was his purpose in naming both the mortgagee and himself as beneficiaries under the policy.

Moreover, Murray v. Webster, supra, rejected the view followed in many jurisdictions that a party with less than a whole interest who insures the property for its full value is deemed to hold any insurance proceeds as a trustee for the benefit of those persons who own a remainder interest. Instead, Murray v. Webster stated the right of the “other” joint owners to share in the insurance money was premised upon the “equities of the particular case.” Among the inquiries the supreme court considered relevant to a determination of whether the circumstances warranted a holding that the insurance proceeds be shared are: (1) whether the insurance was obtained for the sole benefit of the person who procured it; (2) whether by express or implied agreement the person who took out the insurance did so for the benefit of the owners of the other interests in the property; and (3) whether the owners of the other interests contributed to the cost of the insurance. The supreme court concluded by stating that these questions were to be determined from the evidence presented at trial and the circumstances of the parties.

Of course factual determinations such as those discussed in Murray v. Webster are entitled to every favorable presumption by this court and the findings of the trier of fact will not be disturbed on appeal unless clearly wrong or manifestly in error. And errors, if any, which are committed at the trial level must be affirmatively demonstrated by the record before this court.

In the case at bar the evidence shows that appellee obtained insurance coverage on the property in question solely for his benefit and that of the mortgage holder. No one else contributed to the payment of the insurance premiums nor was anyone else expected to supplement the cost of the premiums by providing their own funds. Based on these facts, we cannot say that the trial court erred in finding that appellant was not entitled to any of the proceeds of the fire insurance policy.

AFFIRMED.

WRIGHT, P. J., and HOLMES, J., concur.


source: Caselaw Access Project

author: BY THE COURT.

license: Public Domain

text:
    Walter E. MARTIN and Frances N. Martin, his wife, Appellants (Plaintiffs), v. Robert M. FRYE and Olive R. Frye, his wife, Appellees (Defendants).
    No. AA-414.
    District Court of Appeal of Florida, First District.
    Feb. 18, 1977.
    Rehearing Denied March 22, 1977.
    Sam E. Murrell & Sons, Orlando, for appellants.
    Burke D. Chester, Daytona Beach, for appellees.
   BY THE COURT.

Upon considering the appellants’ brief and the record, we find no reversible error.

Accordingly, the judgment appealed is affirmed.

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


author: GRIMES, Judge.

text:
    In re the ESTATE of Carrie Dokken FILION, Deceased.
    No. 76-1836.
    District Court of Appeal of Florida, Second District.
    July 27, 1977.
    Rehearing Denied Sept. 9, 1977.

      Kent W. Davis of Foster & Davis, St. Petersburg, for appellant Harold Dokken.
    James W. Martin of Briekley & Martin, St. Petersburg, and James J. Rowan of McCutcheon, Rowan & Goller, St. Peters-burg, for appellee St. Petersburg Bank & Trust Co.
    George F. Wilsey of Fisher & Wilsey, St. Petersburg, for The Gospel Center.
    Robert A. Douglass of Brown, Watson, Goldstein & Douglass, St. Petersburg, for Missionary Baptist Church.
   GRIMES, Judge.

This appeal involves the timeliness of the renunciation of benefits under a will by one seeking to revoke the probate of the will.

Carrie Dokken Filion died on January 20, 1976. Her will was admitted to probate ten days later. Pursuant to Section 733.212(1), Florida Statutes (1975), the personal representative published and served a notice of administration on all beneficiaries under the will. The first date of publication was February 5, 1976.

On May 4, 1976, the decedent’s brother who was a beneficiary under the will filed a petition to revoke the probate of the will. On July 9, 1976, the court granted the personal representative’s motion to dismiss with leave to file an amended petition. Among the stated grounds for dismissal was the failure to allege that appellant had renounced or divested himself of the beneficial interest accruing to him under the will.

On July 30, 1976, the appellant filed a renunciation and disclaimer of all benefits under the will and filed a first amended petition to revoke probate in which it was alleged that the renunciation and disclaimer had been filed. Upon the personal representative’s motion, the court then dismissed the first amended petition to revoke probate on the ground that the appellant’s renunciation had not been made within the three month time period for contesting the will provided by Section 733.212(3), Florida Statutes (1975).

One who seeks to revoke the probate of a will must renounce the benefits accruing to him under that will. Pournelle v. Baxter, 151 Fla. 32, 9 So.2d 162 (1942); In re Estate of Harby, 269 So.2d 433 (Fla.2d DCA 1972). The question we must decide is whether the failure to renounce within the statutory three month time period could be later cured by amendment.

The case of In re Estate of Wood, 271 So.2d 42 (Fla.3d DCA 1973), appears to be directly on point. There, a petition to revoke probate was filed two days before the expiration of the statutory time period and did not allege a renunciation by the petitioner who was a beneficiary under the will. As in the instant case, this petition was dismissed with leave to amend. After the expiration of the statutory time period, there was filed an amended petition which contained a renunciation. The amended petition was dismissed. On appeal our sister court reversed on the theory that proceedings for the revocation of a will are civil in nature and that pursuant to Fla.R.Civ.P. 1.190(c), the allegations of the amended petition related back to the original petition. We cannot accept the appellee’s effort to distinguish this case on the ground that it may only hold that the allegation of the renunciation was deemed to relate back. The renunciation, itself, was contained in the amended petition, and the clear implication of the opinion is that this is the first time that a renunciation was made.

In any event, we believe that the first amended petition to revoke probate filed in the instant case should have been allowed to stand. Renunciation is a judicially imposed doctrine deemed necessary to avoid the paradox of a person claiming benefits under a will which he seeks to declare invalid. It is more nearly a condition precedent to the remedy rather than to the cause of action.

Appellant’s cause of action existed when the will was admitted to probate. He prosecuted his cause of action by filing a petition to revoke probate within the three month period prescribed by Section 733.-212(3). The statute only dictates when the petition must be filed. We see nothing in the statute which would preclude the subsequent filing of the renunciation. None of the assets of the estate have ever been in the appellant’s hands, and no prejudice could have resulted from the failure to renounce within the statutory period for filing the petition.

REVERSED.

McNULTY, Acting C. J., and OTT, J., concur.


author: PER CURIAM.

text:
    STATE of Florida, Appellant, v. Theodore PULLINGS, Appellee.
    No. FF-386.
    District Court of Appeal of Florida, First District.
    Aug. 9, 1977.
    Rehearing Denied Oct. 25, 1977.
    Robert L. Shevin, Atty. Gen., and A. S. Johnston, Asst. Atty. Gen., for appellant.
    William N. DeCarlis of Bates & DeCarlis, Gainesville, for appellee.
   PER CURIAM.

Affirmed. See Gentry v. Fitzpatrick, 327 So.2d 46 (Fla. 1st DCA 1976).

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


text:
    DEPARTMENT OF REVENUE of the State of Florida, Appellant, v. Nick MALTEZO et al., Appellees.
    No. FF-391.
    District Court of Appeal of Florida, First District.
    Aug. 25, 1977.
    Rehearing Denied Sept. 29, 1977.
    Robert L. Shevin, Atty. Gen., E. Wilson Crump, II, Asst. Atty. Gen., for appellant.
    David W. Palmer, Crestview, T. Patterson Maney, Shalimar, for appellees.
   PER CURIAM.

This .interlocutory appeal having been found to be without substantial merit, the appeal is DISMISSED.

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


text:
    SCHOOL BOARD OF MARION COUNTY, Florida, Petitioner, v. Ida L. HIPPERLING and Division of Employment Security, Florida Department of Commerce, Respondents.
    No. DD-469.
    District Court of Appeal of Florida, First District.
    Sept. 13, 1977.

      John P. McKeever, of Pattillo, MacKay & McKeever, Ocala, for petitioner.
    Kenneth Hart and Alex D. Littlefield, Tallahassee, for respondents.
   PER CURIAM.

Petition for writ of certiorari denied.

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


author: PER CURIAM

text:
    Michael V. SEALY, Appellant, v. STATE of Florida, Appellee.
    No. EE-280.
    District Court of Appeal of Florida, First District.
    Oct. 7, 1977.
    Michael J. Minerva, Public Defender, and Theodore Mack, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., and A. S. Johnston, Asst. Atty. Gen., for appellee.
   PER CURIAM

AFFIRMED.

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


text:
    STATE of Florida, Appellant, v. Etheria Verdell JACKSON, Appellee.
    No. GG-376.
    District Court of Appeal of Florida, First District.
    Oct. 14, 1977.
    Rehearing Denied Nov. 16, 1977.
    Robert L. Shevin, Atty. Gen., and A. S. Johnston, Asst. Atty. Gen., for appellant.
    Donald G. Nichols, of Dawson, Galant, Maddox, Sulik & Nichols, Jacksonville, for appellee.
   PER CURIAM.

When we consider the evidence on the question of the voluntariness of the statements and admissions of appellee in the light most favorable to appellee, which we must do, we find no error in the trial court granting the motion to suppress same.

AFFIRMED.

McCORD, C. J., and MILLS and ERVIN, JJ., concur.


author: HAVERFIELD, Judge. PER CURIAM.

text:
    Rene Eugene BURAU, Appellant, v. The STATE of Florida, Appellee.
    No. 76-1256.
    District Court of Appeal of Florida, Third District.
    Nov. 15, 1977.
    Rehearing Denied Feb. 1, 1978.

      Bennett H. Brummer, Public Defender, and Karen M. Gottlieb, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., Margarita G. Esquiroz and Ronald A. Dion, Asst. At-tys. Gen., Miami, and Lonworth Butler, Jr., Legal Intern, for appellee.
    Before PEARSON, HAVERFIELD and NATHAN, JJ.
   HAVERFIELD, Judge.

Defendant, Rene Eugene Burau, seeks reversal of an order denying, without an evi-dentiary hearing, his motion to vacate judgment and sentence of five years in the state penitentiary on the ground that the trial judge had been unduly influenced by extensive prejudicial press publicity and, thus, imposed the sentence upon wrongfully considered criteria.

Defendant was tried non-jury and found guilty of aggravated assault. A pre-sen-tence investigation was ordered. At the conclusion of the sentencing hearing on July 8, 1975, at which several members of the news media were present at the request of the victim’s father, the judge indicated that he would withhold adjudication and defer sentencing for six months. Defendant was ordered to receive psychiatric treatment in the interim. Thereafter a barrage of adverse publicity ensued and the prosecution filed a motion to accelerate the date of sentencing. On July 14,1975 another sentencing hearing was held and the judge sentenced defendant to five years. Subsequently defendant filed a motion to mitigate his sentence and on October 28 the motion was denied. On May 14, 1976 defendant filed a motion to vacate sentence and adjudication pursuant to Fla.R.Crim.P. 3.850 on the ground that the trial judge was improperly influenced by the adverse publicity when he sentenced defendant to five years imprisonment. Defendant also requested an evidentiary hearing. The motion to vacate was summarily denied. We affirm.

The motion to vacate in the case at bar is fatally defective because the ground alleged therein was (1) known to the defendant at the time of sentencing, and (2) properly presentable on a direct appeal which defendant could have taken.

The established rule is that a motion to vacate judgment and sentence may not be used as a substitute for an appeal and matters properly presented on appeal may not be asserted as grounds for a motion to vacate. See Swindle v. State, 202 So.2d 132 (Fla. 3d DCA 1967); Suarez v. State, 220 So.2d 442 (Fla. 3d DCA 1969); Clements v. State, 320 So.2d 44 (Fla. 3d DCA 1975). Further, if the matter forming the basis of a motion to vacate was known to the defendant at the time of trial, it will not support a collateral attack on the judgment of conviction. State v. Matera, 266 So.2d 661 (Fla.1972).

We also note that defendant has presented an incomplete record omitting matters necessary for this court’s determination of the alleged prejudicial error and, therefore, having failed to present a record showing a basis for reversal, is not entitled to such reversal. See Farrington v. State, 207 So.2d 513 (Fla. 3d DCA 1968); Costantino v. State, 224 So.2d 341 (Fla. 3d DCA 1969).

Affirmed.

ON PETITION FOR REHEARING

PER CURIAM.

On petition for rehearing appellant has brought to our attention that the record on appeal was supplemented with the transcripts of the hearings on July 8 and 14, 1975. After a review of these transcripts we still adhere to our conclusion that defendant has failed to make reversible error appear.

The petition for rehearing is denied.

      . For example, the transcripts of the hearings of July 8 and 14, 1975 have been omitted.


text:
    PEERLESS REALTY COMPANY and Jack Sakson, Petitioners, v. FLORIDA REAL ESTATE COMMISSION ex rel. C. J. FEIDEL and Harold L. Clark, Respondents.
    No. 76-1579.
    District Court of Appeal of Florida, Fourth District.
    Nov. 22, 1977.
    Rehearing Denied Feb. 7, 1978.
    David T. Young, Rockledge, for petitioners.
    Howard Hadley, Maitland, Charles E. Felix, Orlando, and Joseph A. Doherty, Winter Park, for respondents.
   PER CURIAM.

Petition for Writ of Certiorari is DENIED.

CROSS, DAUKSCH and MOORE, JJ., concur.


author: BOYER, Judge. McCORD, Chief Judge, McCORD, Chief Judge. BOYER, Judge,

text:
    Gary Adair WATTERSON, Appellant, v. Earline O. WATTERSON, Appellee.
    No. EE-378.
    District Court of Appeal of Florida, First District.
    Nov. 22, 1977.
    On Rehearing Jan. 20, 1978.

      M. Stephen Turner and Joseph P. Ma-whinney of Thompson, Wadsworth, Messer, Turner & Rhodes, Tallahassee, for appellant.
    L. Ralph Smith, Jr. of Smith & Moore, Tallahassee, for appellee.
   BOYER, Judge.

By appeal from a final judgment of dissolution of marriage the husband (appellant) asserts the following four alleged errors: (1) The trial court erred in declaring the parties’ adult son a dependent within the meaning of Florida Statute 743.07(2) and in considering that dependency in awarding to the wife lump sum alimony; (2) the trial court erred in awarding the wife lump sum alimony in the amount of $63,000.00; (3) the trial court erred in requiring the husband to maintain life insurance on his life for the benefit of the wife; and (4) the trial court erred in awarding the wife attorney’s fees.

The parties were married in 1953 at which time neither had substantial assets. The wife worked as a legal secretary during the first years of the marriage while the husband became a C.P.A. The parties only child, a son, was born in 1955. In 1961, the wife became primarily a homemaker and thereafter invested her energies in her husband’s career to the exclusion of her own personal development. The parties attained a “fused relationship” in the words of the clinical psychologist who testified at the trial. During the early 1970’s, the husband was a partner in an accounting firm earning from $50,000-$70,000 annually. In June of 1975, the husband left that firm taking with him certain assets, accounts receivable, and client files having a value of $107,000. He is now in partnership with another accountant earning approximately $35,000 in 1975 and 1976. He is also a Major in the National Guard earning from that source approximately $4,000 a year. When he retires his military retirement will be between $800 and $900 a month. When the parties separated in September of 1975, the wife remained in the marital home which was in her name and which had a value of $15,000. During the 15 month period of separation, the wife became extremely upset over the marriage breakup, the husband’s adulterous relationship with another woman, and her financial future and security. At the final hearing, the clinical psychologist whom the wife began seeing during the separation period, testified she was incapable of competing in the job market and needed continued mental health counseling. The psychologist also testified in regard to the parties’ 21-year-old son stating that the son was upset over his parents’ divorce and was clinically depressed, socially withdrawn and incapable of earning a living and maintaining himself. The psychologist felt the son needed continued counseling and would most likely improve as soon as the dissolution proceedings were over. It was his opinion that the son was college material and should go to college since his personality and interests were not suited to manual labor.

The parties have a net worth of $373,-640.06 on December 31, 1974. Two years later on the day of the final hearing, December 22, 1976, the husband testified to a net worth of $116,105.28 and the wife stated in a financial affidavit submitted to the court that she had a net worth of $52,-145.14. See the following table:

TABLE
ASSETS AT THE TIME OF FINAL HEARING WIFE HUSBAND
Savings Accounts, cash $ Accounts Receivable 636.64 $ 388.76 11,000.00
Notes Receivable 94,956.52
Real Estate (marital home) 15,000.00
Automobiles & furnishings 2,500.00
Cash value — Life insurance 5,670.00
Securities 30,838.50
Investments — Equity 21,000.00
CPA Partnership:
Net Capital 21,000.00
Goodwill 16,875.00
Notes Payable 151.615.001
NET WORTH $52,145.14 $116,105.28

At the final hearing the wife objected to the husband’s testimony concerning his net worth since he had not furnished accurate or complete records of the value of his accounting practice. The court noted this and stated it would not be bound by the figures. During the separation, the husband made several real estate investments which decreased his assets and generated losses. The wife testified that during the 15 month separation she withdrew $98,-381.14 from savings accounts in her name and spent all of it but $1,000.00. $11,128.35 of this money was spent for taxes and her husband’s investment in a real estate venture. The rest of the money was used for the purchase of appliances, furniture, clothes, a new car, payment for repair and remodeling work on the house and donations to various churches. The wife testified she thought if she got rid of the money her husband would come back to her.

In the final judgment, the trial judge determined that the son’s lack of earning capacity was significantly due to his emotional trauma over the domestic discord of the parties and that he required substantial assistance. The court found that the son was a “dependent” person within the meaning of Section 743.07(2), Florida Statutes (1975) in need of support for the next year or two rather than indefinitely. The trial court concluded that allocation of property to the wife sufficient to buttress supporting the son’s needs would be more practical than a specific award of child support. He ordered periodic alimony of $1,000 a month to the wife and lump sum alimony in the form of $18,000 worth of securities (V2 interest in jointly held securities worth $36,000) and $45,000 worth of promissory notes held by the husband. The court did not give any weight to the $98,000 withdrawn from the savings accounts, stating that though the dissipation was prodigal, a substantial amount was spent in providing for the living needs of the wife and son over the 15 month separation and that the emotional distress precipitated by the marriage rupture had a significant influence on those actions. Finally, the court found that because of the wife’s substantial dependence on the husband for support, the husband should maintain a $40,000 life insurance policy on his life for the benefit of his wife. Attorney’s fees were awarded to the wife in the amount of $8,000.

At the final hearing, the learned trial judge stated that he had been confronted with more problems in this case than any case he could recall in nearly 20 years on the bench. We agree with the learned and able trial judge that this case presents many difficulties: However, we must disagree with the manner in which the law was applied to the facts of the case.

There is nothing in the law which requires a parent to support a child who is not disabled by physical or mental incompetency beyond the age of 21. Briggs v. Briggs, 312 So.2d 762 (Fla. 4th DCA 1975). The decision of Finn v. Finn, 312 So.2d 726 (Fla.1975) which adopted the dissenting opinion in White v. White, 296 So.2d 619 (Fla. 1st DCA 1974) simply holds that the law which changed the age of majority from 21 to 18 did not change the previous law which enabled a trial judge to order support for a dependent child until he reaches 21, providing the child pursues in good faith the furtherance of his education and has a need for help beyond his own reasonable capacity to provide for himself. Sub judice the “child” was over 21, almost 22, at the time of the final judgment. There is no allegation that he has a physical disability nor is mentally incompetent. While it is true that, depending on the circumstances, the trial court had the power to order support until he was 21, there is no justification for the provision of such support beyond that age. In any event, the trial judge incorrectly used the vehicle of lump sum alimony to provide the support: Such is not authorized by Florida Statutes 61.13(1) and is contrary to the law announced in Heckes v. Heckes, 129 Fla. 653, 176 So. 541 (1937).

The parties were married for 22 years and at the time of the divorce the wife was 41 years old. The wife worked until 1961 after which she devoted her time and energy to the profession of being a mother and housewife. She is indeed the type of wife contemplated by this court in Brown v. Brown, 300 So.2d 719 (Fla. 1st DCA 1974) and Ruhnau v. Ruhnau, 299 So.2d 61 (Fla. 1st DCA 1974) as a deserving recipient of an award of lump sum alimony. However, we find that the trial court erred in refusing to consider the $98,381.14 spent by the wife during the separation period. Although it is true that approximately $11,-000 of that money was spent for taxes and the husband’s real estate investment, a substantial portion was used to improve assets retained by the wife. To ignore the $98,000 dissipated by the wife and then grant her an approximate 50% division of the assets in the husband’s name was error.

As already recited, the parties had a net worth of $373,640.06 in 1974 and in 1976 they testified to a combined net worth of $168,250.42. This represents a drastic decrease in the amount of $205,389.64. Approximately $98,000 of this decrease has been accounted for but we are at a loss to explain the other. The wife made the charge that her husband, a highly skilled accountant, manipulated the assets in such a manner so as to deprive her of her share of the marital assets. She testified her husband told her he “would fix her good” and she would end up in Chattahoochee rather than receive a fair settlement. In response to the wife’s charge that her husband had made it impossible for her to determine the value of his accounting practice the court responded:

“And I think there have been some problems -here, and I am not going to be critical of either side in the problems of getting discovery and responding to discovery. I have determined that I am going to decide this case on the best basis that I can, and with what information is available to me, and what I feel has been — if I feel there has been any concealing or failure to reveal, then I am just going to project it, and use whatever base that I find is the nearest I can use.”

It appears the trial court did project some type of base in making this award of lump sum alimony. However, this court does not have the benefit of the trial court’s reasoning. Therefore on the record as it appears before us the lump sum alimony provision must be reversed.

It was also error for the trial court to require the husband to maintain life insurance on his life for the benefit of the wife, to provide support for her in the event of and after the husband’s death. “Normally, alimony terminates upon the death of the former husband.” Putnam v. Putnam, 154 So.2d 717 (Fla. 3rd DCA 1963). There is nothing in this record which justifies an award of alimony after death. Todd v. Todd, 311 So.2d 769 (Fla. 1st DCA 1975).

The award of attorney’s fees must be reversed too. The wife, with the special advantage of liquidity and absence of personal obligations, had a financial ability equal to the husband to pay attorney’s fees. The Valparaiso Bank & Trust Co. v. Sims, 343 So.2d 967 (Fla. 1st DCA 1977). Neither attorney’s fees nor costs may be awarded as punishment, no matter how deserving the punishment. See McKennon v. McKennon, 312 So.2d 804 (Fla. 1st DCA 1975).

Reversed and remanded for further proceedings consistent herewith.

MILLS, J., concurs.

McCORD, C. J., concurring in part and dissenting in part.

McCORD, Chief Judge,

concurring in part and dissenting in part.

As to Point I, § 743.07(2), Florida Statutes (1975), by which the Legislature removed the disability of nonage for all persons who are 18 years of age or older, provided in subsection (2) thereof, “This Act shall not prohibit any court of competent jurisdiction from requiring support for a dependent person beyond the age of 18 years; . . .” This statute clearly authorizes the court to require support of dependent persons after they reach the age of their majority in proper cases. Here the evidence supports the trial judge’s ruling that the son of the parties, though he had reached his majority, was suffering from a temporary disability. While I agree with the majority opinion that it was improper for the trial judge to use the vehicle of lump sum alimony to provide support for the son, in my view, the trial court is authorized on remand to award temporary support for the son during the period of his disability.

As to Point II, while I agree with the majority opinion that the trial judge should not have disregarded the $98,381.14 the wife spent during the 15-month separation period, in my view, under the facts of this case, this sum should not be treated entirely as though it were still a part of their joint assets. The dissipation of this money by the wife should be given some detrimental weight in connection with the division of the assets, but such sum should not be treated as though it still exists.

As to Point III, I agree there is nothing in the record to justify an award of alimony after death, and therefore it was error to require the husband to maintain life insurance on his life for the benefit of the wife to provide support for her in the event of and after the husband’s death.

Point IV, as to the trial court’s award of attorneys fees to the wife, will be governed by the respective financial abilities of the parties after division of assets upon remand.

ON PETITION FOR REHEARING GRANTED

McCORD, Chief Judge.

We have reviewed this case on petition for rehearing and have concluded that the trial judge’s award of lump sum alimony (with the exception of such amount as was included therein for support of the parties’ son), was properly arrived at in the trial judge’s adjustment of the equities between the parties.

There is nothing is the record to justify an award of alimony after death, and therefore is was error to require the husband to maintain life insurance on his life for the benefit of the wife to provide support for her in the event of and after the husband’s death.

The award of attorney’s fees to the wife by the trial court is affirmed.

Affirmed in part and reversed in part and remanded for further proceedings consistent herewith.

MILLS, J., concurs.

BOYER, J., dissents.

BOYER, Judge,

dissenting.

I respectfully dissent to modification of our prior opinion on rehearing. I would adhere to our original opinion and deny the petition for rehearing.

       There is a conflict in the record, in that the husband testified the wife has a life insurance policy with a cash surrender value of $6,000.00 in addition to the wife’s assets of an automobile and furnishings for a total of $11,700.00 in this category while the wife submitted a figure of only $5,670.00.

       Although the securities were jointly held, the wife included the total value in her net worth and the husband excluded the value of his % interest from his net worth.


author: MILLER, ROBERT P., Associate Judge.

text:
    Steven J. PERENIC and United Services Automobile Association, Appellants, v. Dorothy J. CASTELLI and Frank T. Castelli, her husband, Appellees.
    No. 76-1727.
    District Court of Appeal of Florida, Fourth District.
    Dec. 6, 1977.
    Rehearing Denied Feb. 2, 1978.

      David R. Miller and Barbara Kane of Smalbein, Eubank, Johnson, Rosier & Bus-sey, P. A., Rockledge, for appellants.
    James M. Campbell of the Law Offices of J. Russell Hornsby, Orlando, for appellees.
   MILLER, ROBERT P., Associate Judge.

In this appeal Appellant, defendant below, seeks review of the trial court’s order granting a new trial on the issue of damages.

The case below involved a suit for damages resulting from a collision between the respective parties’ motor vehicles. The jury found the Appellant, Perenic, 100% at fault and granted a verdict in the amount of $2,000.00 to the injured Appellee, Dorothy J. Castelli, and a verdict in the amount of $2,000.00 for her husband on his derivative claim. The Order Granting a New Trial reads in part as follows:

“ORDER GRANTING NEW TRIAL
First, as to the issue of liability, it is clear from the testimony taken at trial and the verdict of the jury that the issue of liability should not be disturbed as it is supported by the greater weight of the evidence.
Secondly, the verdict is so grossly inadequate in the award of damages in the amount of $2,000 to Plaintiff, DOROTHY J. CASTELLI and $2,000 to the Plaintiff, FRANK T. CASTELLI, that it shocks the conscience of the Court. The evidence shows that the Plaintiff, DOROTHY J. CASTELLI, was physically ill and there was testimony from Dr. Raul Montes giving the Plaintiff, DOROTHY J. CASTEL-LI 3% to 5% permanent disability. Dr. James Carter was of the opinion, within a reasonable degree of medical certainty that it would take six months to one year from June 8, 1976, before the Plaintiff, DOROTHY J. CASTELLI, would recover. The Court finds from the greater weight of the evidence that the Plaintiff, DOROTHY J. CASTELLI, received an acute cervicle (sic) lumbar strain which, as of the date of the trial, had not reached maximum medical improvement. The Court finds that the Plaintiff, DOROTHY J, CASTELLI, had a disease known as scleroderma which was not caused by the accident. However, according to the medical testimony, sometimes trauma seems to increase the symptomatology due to the disease and it is also a well known fact that people with collagen disease do not tolerate trauma very well. The evidence shows that the Plaintiff, DOROTHY J. CASTELLI, did receive medical attention while in Jess Parrish Memorial Hospital. In other words, the amount of the verdict shocks the judicial conscience and is against the manifest weight of the evidence on the issue of damages.
Our Supreme Court in Griffis v. Hill, 230 So.2d 143 (S.C.Fla.1969) laid down the test of the adequacy of a verdict as follows: ‘The test to be applied in determining the adequacy of a verdict is whether a jury of reasonable men could have rendered the verdict.’ In view of the uncon-tradicted evidence pertaining to damages in this record, this Court holds that the verdict of the jury is clearly and grossly inadequate. Borandi vs. St. Anthony’s Hospital, Inc., 291 So.2d 54.”

This court is well aware that a trial judge is accorded a broad discretion in such matters. See Cloud v. Fallis, 110 So.2d 669 (Fla.1959). Nevertheless such an order may be reviewed on the record for the purpose of ascertaining whether the exercise of judicial discretion implicit in the order has been abused. If this abuse of discretion is apparent from the record then the order of the trial judge in an appropriate appellate proceeding may be, and should be, set aside. Russo v. Clark, 147 So.2d 1 (Fla.1962).

We have reviewed the record, and the evidence is conflicting as to the extent of Appellee’s injuries and damages. Also, matters involving the credibility of Appel-lee were considered by the jury. One thing is certain, Appellee, Mrs. Castelli, suffers from scleroderma, a serious and incurable disease involving the connective tissues. It is further certain that this disease was not caused by the accident. The medical expense relating to the accident was approximately $1,000.00.

Three doctors testified at the trial and their testimony conflicted as to material facts. Dr. Montes, an orthopedic surgeon who had seen her on four occasions, testified she was permanently injured. Dr. Chastain, an internist and her treating physician since 1969, testified she was not permanently injured as a result of the accident. Dr. Carter, another orthopedic surgeon who examined Mrs. Castelli on one occasion, said he thought she would be all right, as far as her injuries in the accident were concerned, in six to twelve months.

It is apparent from the trial judge’s order that he chose to believe Dr. Montes over Dr. Chastain; that he weighed the evidence and found that the greater weight of the evidence supported many facts in favor of Appellee; and that he found the evidence on damages to be “uncontradicted.”

We find from the record that the facts found by the lower court were not proven by “uncontradicted” evidence, and the finding by the lower court in that regard is erroneous. The weight to be given conflicting evidence, especially where the credibility of the witnesses is an issue, is a question for the jury and never one for the court. To allow the court to invade this province of the jury would violate the right to a jury trial. The only exception to this rule should be where the verdict is contrary to the manifest weight of the evidence. This by definition can exist only where the evidence is clear, obvious, and indisputable. The evidence in this case does not meet that criteria.

We find that the record of the trial below clearly shows that the evidence is conflicting as to damages and that the verdict was not against the manifest weight of the evidence and that therefore a clear showing of abuse of the trial court’s discretion has been made by Appellant.

For the reasons stated, the Order Granting New Trial is reversed, and this cause is remanded with direction to enter judgment in accordance with the jury verdict.

REVERSED and REMANDED with direction.

ALDERMAN, C. J., concurs.

CROSS, J., dissents, without opinion.


author: DREW (Ret.), Associate Judge.

text:
    Ossie Mae SCOTT, Petitioner, v. FLORIDA DEPARTMENT OF COMMERCE, DIVISION OF EMPLOYMENT SECURITY, and Air La Carte, Respondents.
    No. 77-1170.
    District Court of Appeal of Florida, Third District.
    Dec. 6, 1977.
    Rehearing Denied Jan. 30, 1978.

      Marcia K. Cypen, Miami, for petitioner.
    Kenneth H. Hart, Jr., Tallahassee, James R. Parks, Miami, for respondents.
    Before HENDRY, C. J., HAVERFIELD, J., and E. HARRIS DREW (Ret.), Associate Judge.
   DREW (Ret.), Associate Judge.

The only serious question here is the sufficiency of the notice of hearing before the appeals referee. On February 21, 1977, copies of such notice were mailed to the claimant, Ossie Mae Scott, at the address given by her in her original claim for benefits, advising of a hearing before the referee on March 1, 1977 at 10:30 A.M. Claimant failed to appear, but was represented at the hearing by her counsel.

In the application for review before the Industrial Relations Commission, filed following an adverse ruling, it is alleged that claimant was not aware of said hearing; that her counsel was unable to locate her due to a change of address and that, for said reason, a continuance was requested but denied without affording counsel for claimant the opportunity to cross-examine the employer and its witnesses. Instead, the claimant alleges “the referee advised counsel and employer’s witnesses to leave and return at a later time”.

It is important to note that the application for review did not allege any deficiency in the notice of hearing, nor did the Industrial Relations Commission, in its order affirming [now under review here], pass upon such a question.

The decision of the Commission is found to be without error and is affirmed. The voluntary appearance of claimant’s counsel at the hearing of March 1, 1977, without objection to the length of the time given to appear, was a waiver of any defect in the notice. Moreover, as counsel here urges, while the provision in Rule 8B-5.-ll(5)(a), U. C. Appeals Referee Rules of Procedure, providing for 7 days’ notice, may be invalid because in conflict with section 120.57(l)(b) 2, Florida Statutes, which provides for “reasonable notice of not less than 14 days”, that question was not presented to nor decided by the referee or the Commission and is improperly raised here for the first time.

Certiorari denied.


author: SCHWARTZ, ALAN R., Associate Judge. SMITH, ROBERT P., Jr., Associate Judge,

text:
    STATE of Florida ex rel. Max VEALE, Appellant, v. CITY OF BOCA RATON, etc., et al., Appellees.
    No. 75-2257.
    District Court of Appeal of Florida, Fourth District.
    Dec. 20, 1977.
    Rehearing Denied Feb. 7, 1978.
    Parker D. Thomson and Franklin G. Burt of Paul & Thomson, Miami, for appellant.
    William K. Howell, Jr., City Atty., Boca Raton, for appellees.
   SCHWARTZ, ALAN R., Associate Judge.

We must decide in this case the important issue which the Supreme Court in News-Press Publishing Co. v. Wisher, 345 So.2d 646 (Fla.1977), held the Second District need not have decided in Wisher v. News-Press Publishing Co., 310 So.2d 345 (Fla.2d DCA 1975); that is, whether non-statutory public policy considerations may restrict public access to governmental documents otherwise deemed “public records” under the Public Records Act, Fla.Stat. § 119.01 et seq. For the reasons which follow, we conclude that the presently applicable statutory provisions neither recognize nor permit the judicial creation of exceptions to the Act and therefore reverse the contrary conclusion reached below.

The facts which give rise to this controversy are undisputed. In late 1975, the Boca Raton City Council directed Lawrence J. Marchbanks, an Assistant City Attorney, to investigate and prepare a report concerning suspected irregularities in the City’s Building Department. Together with his law partner, City Prosecutor Reynolds, Marchbanks carried out this directive and prepared the requested report which he presented to the Council on December 16, 1975. An accompanying letter by March-banks stated that the report demonstrated “probable cause to warrant consideration of sanctions against named individual city employees;” in fact, apparently on the basis of the report, two employees were fired and another was being investigated further. Marchbanks had also turned over his “findings” to the State Attorney’s office for further inquiry and such action as that office deemed advisable. At the December 16, 1975 meeting, however, the City Council declined to make the report itself available to the press and public. It did so upon the acceptance of Marchbanks’ advice, made on the basis of the Second District’s Wisher decision and upon an invocation of the “attorney-client” privilege, that such access could be lawfully refused. Indeed the Council merely ordered the report referred to City Attorney William Howell, who was himself directed to confer with the City Manager as to further appropriate action.

Almost immediately, Max Veale, the Managing Editor of the Boca Raton News, filed a mandamus proceeding against the City, its mayor and manager, and Howell and Marchbanks, to require them to make the report public. Although an alternative writ was issued, the trial court, at which the Attorney-General appeared as an ami-cus for Veale, dissolved the alternative writ and dismissed the proceeding in a final judgment which recognized the status of the document itself as a “public record” as defined in Fla.Stat. § 119.011(1) (1975) but which stated

“. . . that the issues herein are governed by the case of Wisher vs. News-Press Publishing Co., 310 So.2d 345 (2 DCA Florida 1975), and that the report in question has been referred to the State Attorney, and that the opening of the investigation report sought by the Petitioner would result in a substantial probability of significant damage to the public. The Court further finds that the subject report is a public record exempted by the doctrine of Wisher vs. News-Press Publishing Co., Supra, and Chapter 119, Florida Statute.”

Veale has taken this appeal to review this determination.

The burden of the parties’, and particularly the appellees’ argument to us in support of their respective positions is concerned with weighty and significant questions of public policy concerning the relative significance of the “public’s right to know,” on the one hand, and the damage to the proper administration of governmental affairs should allegedly confidential information be publicly revealed, on the other. Perhaps thankfully, we consider that it is neither necessary nor proper for us to resolve this debate and that, to the contrary, the case may be properly decided merely upon an application of well-accepted and prosaic rules of statutory interpretation and stare decisis. We think that the Legislature has told us — and prior decisions have said, that it told us — that the document in question may not be shielded from disclosure.

Our analysis begins, of course, with the terms of the statute itself. At all pertinent times, Fla.Stat., § 119.01 (1975) has provided that:

“It is the policy of this state that all state, county, and municipal records shall at all times be open for a personal inspection by any person, [emphasis supplied].”

Fla.Stat. § 119.07(1) (1975) requires the public official with custody of a public record to disclose it to any member of the public, including the media, who wishes to inspect it. Non -disclosure is permitted only if there is an exemption provided by Fla.Stat. § 119.07(2). At the time of the events concerned in the Wisher case, Fla. Stat. § 119.07(2)(a) (1973) provided:

“(a) All public records which presently are deemed by law to be confidential or which are prohibited from being inspected by the public, whether provided by general or special acts of the legislature or which may hereafter be so provided, shall be exempt from the provisions of this section.” [emphasis supplied]

In 1975, the Legislature made what we think to be a significant amendment to this provision by deleting the phrase “deemed by law” and, in effect, substituting the phrase “provided by law”. Fla.Stat. § 119.-07(2)(a), as it applies to this case, therefore, now reads:

“(a) All public records which presently are provided by law to be confidential or which are prohibited from being inspected by the public, whether by general or special law, shall be exempt from the provisions of subsection (1).” [emphasis supplied]

While the parties disagree about almost everything else, they do agree that the report in question here is a “public record” under the Act, and that there is no specific statutory provision, contained in either a general or a special act, which renders it confidential or precludes its inspection. It is our view that this agreement to all intents decides the case to the contrary of the appellees’ position.

The Supreme - Court’s decision in Wisher seems in itself to compel this conclusion. For the Court took jurisdiction of the case on the basis of its conclusion, expressed at 345 So.2d 646, that the Second District’s Wisher “decision conflicts directly with State ex rel. Cummer v. Pace, 118 Fla. 496, 159 So. 679 (1935) . . . ”. The Second District Wisher decision of course applied a “public policy” exception to the statute. The Pace decision, the continuing viability and applicability of which was emphasized by the Supreme Court in its Wisher opinion, however, specifically holds to the contrary that no non-statutory exception to the Public Records Act may be created by the courts. At 159 So. 681, the Supreme Court there held that:

“The statute applies specifically to ‘all’ municipal records, and, where the legislature has preserved no exception to the provisions of the statute, the courts are without legal sanction to raise such exceptions by implication . . . ”

We need go no further' — and we are not permitted to do so under the doctrine of Hoffman v. Jones, 280 So.2d 431 (Fla.1973)—than to apply the clear holding of the Pace case to reject the conclusion reached below.

The statutory amendment which occurred after the Wisher events makes the propriety, indeed, the inevitability, of this result all the more clear. The Second District decision was bottomed on the court’s conclusion that an exception was properly “deemed by law,” that is, created by the law established by judicial decision-making, to exist. In fact, that phrase does connote opinions and decisions of courts and judges. See Brooks v. Stewart, 97 Cal.App.2d 385, 218 P.2d 56, 60 (Cal. 4 DCA 1950); DeStefanis v. Zoning Board of Review, 84 R.I. 343, 124 A.2d 544, 545 (1956); Stringham v. Salt Lake City, 114 Utah 517, 201 P.2d 758, 760 (1949). The term “provided by law” has, however, quite a different meaning. As the court said, in Fountain v. State, 149 Ga. 519, 101 S.E. 294, 295-296 (1919)

“We assume that no one will question that the term ‘provided by law’ means provided by statute law . . . ”

In fact, no one, at least no court, either before, Lawson v. Kanawha County Court, 80 W.Va. 612, 92 S.E. 786 (1917); or since, Lawing v. Faull, 227 Cal.App.2d 23, 38 Cal.Rptr. 417, 419 (1964); Viculin v. Department of Civil Service, 386 Mich. 375, 192 N.W.2d 449, 460 (1971); appears to have questioned that conclusion. It seems obvious therefore that the very purpose of the statutory amendment was specifically to overrule the Second District Wisher conclusion and preclude judicially-created exceptions to the Act in question. We are required to and do give effect to this clear indication of legislative purpose. State ex. rel. Triay v. Burr, 79 Fla. 290, 84 So. 61 (1920); 30 Fla.Jur., Statutes, § 97, p. 253, and cases cited.

Another familiar principle of statutory construction, expressio unius est exclu-sio alterius, also leads to this result. Another 1975 amendment to the Public Records Act provided for a new statutory exemption which specifically referred to “investigative reports” such as the one involved in the present case but concerned only such reports made or received by a board or agency in the Department of Professional and Occupational Regulations. Fla.Stat.Ann. § 455.001 (1976 Supp.). The fact that the Legislature did not except investigative reports made to other governmental entities, including municipalities like Boca Raton, indicates clearly that it did not intend to do so and that we therefore may not do so. The Fifth Circuit so held in Caswell v. Manhatten Fire & Marine Ins. Co., 399 F.2d 417, 422-423 (5th Cir. 1968):

“The Florida legislature has chosen to grant a privilege from public disclosure of some records of state agencies .
“The legislature has accorded no such privileged status to investigation reports of the State Fire Marshal. Pertinent statutory sections governing reports of the Fire Marshal are set out in the margin. No section contains even a hint that the reports are privileged. In light of the existence of specific statutory privileges for reports of other state agencies, we conclude the Florida legislature has chosen not to confer such status on reports of the Fire Marshal.”

The City relies heavily on City Council of City of Santa Monica v. Superior Court, 204 Cal.App. 68, 21 Cal.Rptr. 896 (1962), which it correctly points out is factually almost identical to this case and which was cited at length in the District Court Wisher opinion. But the Santa Monica case is decisively distinguishable from our situation. There, the court noted at 21 Cal.Rptr. 901 that

“Under Government Code, section 1227, public records and other matters are open to inspection ‘except as otherwise provided.’ A recognized exception under this provision is that contained in Code of Civil Procedure, section 1881, subdivision 5, which provides: ‘A public officer can not be examined as to communications made to him in official confidence, when the public interest would suffer by the disclosure.” [emphasis supplied]

Since Florida has no such blanket exception, the contrary result must follow.

In the end, the Legislature has made its decision and we must follow it. In expressing our view of the legal situation before us, we cannot improve upon the language of the Supreme Court of Texas in Industrial Foundation of the South v. Texas Industrial Acc. Board, 540 S.W.2d 668 (Tex.1976). Even though, unlike Florida’s, the Texas Public Records Act expressly contains an exception for information “deemed confidential '. . . by judicial decision,” the court nonetheless held:

“We do not believe that the interpretation proposed by defendants is reasonable. Although the Open Records Act is similar in many ways to the Freedom of Information Act, our State law contains no exception comparable to exception 6 of the federal act. Section 3(a)(2) of the Open Records Act does except ‘information in personnel files, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.’ There is no such exception, however, for medical files, or for files ‘similar’ to medical or personnel files, as is found in exception 6 of the federal act. Absent such a provision, we do not believe that a court is free to balance the public’s interest in disclosure against the harm resulting to an individual by reason of such disclosure. This policy determination was made by the Legislature when it enacted the statute. All information collected, assembled, or maintained by governmental bodies’ is subject to disclosure unless specifically excepted. We decline to adopt an interpretation which would allow the court in its discretion to deny disclosure even though there is no specific exception provided.” [emphasis supplied]

We agree. Accordingly, the judgment below is

Reversed and remanded with directions to issue the peremptory writ of mandamus.

ALDERMAN, C. J., and SMITH, ROBERT P., Jr., Associate Judge, concur.

SMITH, ROBERT P., Jr., Associate Judge,

concurring:

Our decision here is that the investigative report presented by assistant city attorney Marchbanks to the city council, concerning asserted irregularities in the building department, is a “public record” within the meaning and application of Chapter 119, Florida Statutes (1975). The majority opinion expresses our unanimous view that Section 119.07(2)(a) intends to and does obliterate common law policies of nondisclosure. The purpose of the 1975 amendment of Section 119.07(2)(a) was plainly to reserve to the legislature the power to determine when public policy requires that the contents of public records should be shielded from public disclosure. With that, I agree. I would simply add to Judge Schwartz’ opinion that there is no occasion here for us to intimate a view of any constitutional limitations on disclosure which may exist independently of statutes and public policy as it may have been perceived at common law.

Here, as in News-Press Pub. Co. v. Wisher, 345 So.2d 646, 647 (Fla.1977), “[n]o employee is before us as a party to raise constitutional issues . . . .” Here, as theré, there is no suggestion that the document sought was “provided by a private source who had been promised confidentiality.” The record before us does not contain the Marchbanks report itself, so we are unable to determine whether it contains sensitive information concerning the private lives of employees to which a constitutional claim of privacy may conceivably be applicable. The briefs do not discuss the issues in constitutional terms. In sum, nothing before us makes it necessary or appropriate to “decide in this case the important issue which the Supreme Court in News-Press Publishing Co. v. Wisher . held the Second District need not have decided in Wisher v. News-Press Publishing Co., 310 So.2d 345 (Fla.2d DCA 1975) . .,” as stated in the prefatory sentence of Judge Schwartz’ opinion.

To be sure, any discussion of general access to public records may be read as intimating views on latent constitutional questions. As the Supreme Court stated in News-Press,

Attempts to limit the decision merely to an analysis of the public records law and to exclude constitutional considerations must fail so long as the general access question is involved. [345 So.2d at 647]

Constitutional considerations are, indeed, inseparable from a proper analysis of Chapter 119. But it is proper that we reserve our views on the constitutional questions, as did the Supreme Court in News-Press, until a proper case for their resolution is presented. This is not that case.

      . As did the Fifth Circuit, we conclude that the report in question here is not an “investigative police report” arguably restricted from public access under Lee v. Beach Publishing Co., 127 Fla. 600, 173 So. 440 (1937); see Patterson v. Tribune Co., 146 So.2d 623 (Fla.2d DCA 1962).
      We also, for the reasons stated by the Second District in Times Publishing Co. v. Williams, 222 So.2d 470, 475-477 (Fla.2d DCA 1969), reject the conclusion that the report may be deemed confidential by an application of the “attorney-client” privilege.


text:
    Bob POPE, Appellant, v. James L. STOUGH, Appellee.
    No. 76-1651.
    District Court of Appeal of Florida, Fourth District.
    Dec. 20, 1977.
    Rehearing Denied Jan. 27, 1978.
    Michael D. Jones and Kenneth D. Morse, of Jones & Bishop, Altamonte Springs, for appellant.
    Joseph L. Goldstein, of Mateer, Harbert, Bechtel & Phalin, P. A., Orlando, for appel-lee.
   PER CURIAM.

We have studied the briefs and record in this case and find no reversible error demonstrated by the points raised on appeal. Our review of the record indicates to us that appellant adduced evidence in support of his legal position and that the trial court on controverted evidence decided the issue against appellant.

Accordingly, the judgment appealed from is affirmed.

AFFIRMED.

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