author: HOBSON, Acting Chief Judge.

text:
    Lawrence Carl WRIGHT, Appellant, v. STATE of Florida, Appellee.
    No. 76-1009.
    District Court of Appeal of Florida, Second District.
    April 29, 1977.
    Rehearing Denied May 19, 1977.
    William F. Casler, St. Petersburg, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Richard G. Pippinger, Asst. Atty. Gen., Tampa, for appellee.
   HOBSON, Acting Chief Judge.

This case presents the important question of whether the appellant herein can be prosecuted for second degree felony-murder where his accomplice is killed by a police officer during the commission of a robbery. The trial court held that he could. We reverse.

On November 11, 1975 appellant, McRae and the deceased, Robertson, were in the process of committing a robbery on a convenience store. Prior to commission of the crime members of the anti-robbery squad of the St. Petersburg Police Department had staked out the convenience store. The undisputed facts reveal that appellant and McRae committed the actual robbery while Robertson waited in the automobile. Following the robbery appellant and McRae then exited the store and returned to the awaiting car. After entering the automobile McRae began shooting at the police officers and the officers returned the fire.

At that point appellant and Robertson exited the vehicle in an attempt to escape. Subsequently dogs were brought in and tracked down appellant, whereupon he immediately surrendered and told arresting officers that Robertson had been injured. Robertson was found and pronounced dead. Medical examination indicated that Robertson had been shot only once.

There was no indication of the caliber of the weapon, but testimony at appellant’s plea hearing showed that the bullet made a complete entry and exit consistent with a .38 slug or double-ought buckshot, both of which were being used by police officers. Police officers found four empty rounds in the firearm employed by McRae, but there was substantial evidence indicating that these four rounds were all fired in the direction of the police officers. It was also shown that the appellant had no gun in his possession at the time of his surrender and subsequent arrest.

An indictment was thereafter returned against the appellant charging him in one count with second degree felony-murder and in the second count with armed robbery. The appellant, age 17, waived jurisdiction of the juvenile court and stood trial as an adult. Prior to trial appellant entered pleas of not guilty to both counts of the indictment and moved to dismiss that part of the indictment charging second degree felony-murder on the basis of State v. Williams, 254 So.2d 548 (Fla. 2d DCA 1971). Following a denial of this motion appellant entered into negotiations with counsel for the state and pursuant to a plea bargain entered a plea of guilty to the robbery count and nolo contendere to the murder charge. This appeal followed.

The issue in this case can be stated by way of the following question:

Does Section 782.04(3), Florida Statutes, defining those who shall be liable for second degree felony-murder, contemplate prosecution for that offense where an accomplice, co-conspirator, or co-perpetrator of the underlying felony, is subsequently killed by a police officer during the commission of the underlying felony?

The answer to this question forms the sole basis of this appeal and for the reasons stated below we answer it in the negative.

In State v. Williams, 254 So.2d 548 (Fla. 2d DCA 1971), a similar factual situation was presented for our consideration. We held in that case, under the predecessor of the statute herein, that a felon, who conspired with the deceased co-conspirator to burn certain buildings, could not be found responsible under the felony-murder rule for the death of the co-conspirator who was fatally burned when he accidently set fire to himself while attempting to burn the buildings. Judge McNulty, noting that the question of a felon’s criminal liability for the death of his co-conspirator occurring during the commission of the felony was one of first impression, posited,

“[T]he obvious ultimate purpose of the felony-murder statute ... is, we think, to prevent the death of innocent persons likely to occur during the commission of certain inherently dangerous and particularly grievous felonies. The method employed by the statute to accomplish this purpose is, of course, to create a deterrent to the commission of such felonies by substituting the mere intent to commit those felonies for the premeditated design to effect death which would otherwise be required in first degree murder if someone were killed in the commission thereof.11 But we emphasize that the statute is primarily designed to protect the innocent public; and it would be incongruous to reach a conclusion having the effect of placing the perpetrators themselves beneath its mantle.” (footnote omitted)

254 So.2d at 550-51.

Our research has not indicated, and nor are we aware of, any change in Florida in the rule enunciated in Williams. In fact the ratio decidendi of that case was expressly approved by this court recently in State v. Briscoe, 341 So.2d 1093 (Fla. 2d DCA 1976), a case factually apposite to the instant case. The question in that case, like the instant case, was whether the accused co-perpetrator of a robbery could be held criminally accountable under Section 782.-04(3) for second degree felony-murder when her accomplice was killed by a third person not engaged in the perpetration of the offense. We affirmed the dismissal of the indictment specifically on the basis of Williams. It should be noted that Williams, and particularly Briscoe, only differ in their posture from the case sub judice in that both of those cases came to us from dismissals of indictments.

It is asserted by the state that at the time Williams was decided only two degrees of felony-murder existed under Section 782.04, i.e., first and third degree felony-murder. Following Williams, the state points out the legislature in 1972 amended Section 782.04 to include a second degree felony-murder provision. This latter provision was amended in 1975 and now Section 782.04(3), Florida Statutes (1975), provides in part,

“(3) When a person is killed . by a person other than the person engaged in the perpetration of or in the attempt to perpetrate such felony, the person perpetrating or attempting to perpetrate such felony shall be guilty of murder in the second degree . . . .” (emphasis added)

The state contends, inter alia, that the statute as amended need not be interpreted, is a direct repudiation of this court’s decision in Williams, and imposes liability on perpetrators of felonies for the death of any person killed by third persons not involved in the criminal activity.

In rejecting these contentions we note that the state previously asserted similar arguments in Briscoe. Moreover, we think that prior to the 1975 amendment to the statute a perpetrator’s criminal liability for any deaths occurring during the commission of one of the specified felonies was defined only in narrow and sometimes confusing circumstances. Cases which have arisen under our felony-murder statute, as it existed prior to this amendment, can be broken down into the following situations:

1. Perpetrator or co-perpetrator kills innocent party (victim, police officer, bystander) in furtherance of felony;
2. Perpetrator or co-perpetrator kills self in furtherance of felonious conduct;
3. Innocent party to felony (victim or police officer) kills another innocent party (victim, police officer or bystander); and
4. Innocent party kills perpetrator or co-perpetrator.

With respect to situation one the purpose of the felony-murder statute is clearly met since an innocent party to the transaction is the victim of the homicide. Cf. Hornbeck v. State, 77 So.2d 876 (Fla.1955) (officer shot by either robber or fellow officer); Jefferson v. State, 128 So.2d 132 (Fla.1961) (victim of robbery killed by robber’s accidental discharge of gun).

Situation two contemplates a unique case falling without the ambit of the statute, i. e., no innocent party killed. Wil liams, supra. With regard to category three Hornbeck, supra, suggested that the felony-murder rule would be applicable to that factual situation. However, in State v. Andreu, 222 So.2d 449 (Fla. 1st DCA 1969) our sister court held the felony-murder rule inapplicable where one police officer was killed by a second officer, the latter trying to apprehend the defendant.

Looking to the factual circumstances in the case sub judice, which properly fall under the fourth category denominated above, we do not believe that the second degree felony-murder statute, as amended, was intended to cover this situation. Instead, the language,

“When a person is killed . . . by a person other than the person engaged in the perpetration of . such felony, the person perpetrating such felony shall be guilty of murder in the second degree . . . .”

contained in the 1975 statute envisions the situation where an innocent party kills another innocent party in the course of one of the specified felonies. As such we believe the statute was intended to clarify the confusion which existed after Andreu, supra, as it was compared with the earlier decisions in Hornbeck, supra, and related cases. To impose criminal responsibility on a felon for the death of an innocent person, whether such death is caused by the felon or by an innocent person is, we think, consistent with the ultimate purpose of the felony-murder rule, i. e., to protect innocent persons.

In holding the second degree felony-murder statute inapplicable to the instant facts we are mindful of the state’s contention that this language may logically be extended to impose liability on a felon for the death of a co-felon occurring during the commission of a particular felony. Although a literal reading of the language in Section 782.04(3) may bear out this conclusion, we decline to extend the umbrella of this statute to impose criminal liability on a guilty party for the death of another guilty party. The legislature could have changed the underlying purpose of the rule but it did not. Absent clear language or a supreme court mandate to the contrary, the second-degree felony-murder statute is inapplicable where a police officer kills a perpetrator of a felony during the commission of the crime.

Accordingly, the judgment of guilt for second degree murder is reversed and the sentence vacated.- The judgment and sentence for robbery is affirmed.

McNULTY and GRIMES, JJ., concur.

      . Addition of this crime of second degree felony-murder was explained in State v. Dixon, 283 So.2d 1 (Fla.1973) as reviving the distinctions between principals in the first and second degree on the one hand and accessories before the fact on the other. Nowhere in that opinion does the court indicate that addition of this crime did, of was intended, to expand the aim of the felony-murder principle.

      . Our interpretation of this statute is in line with the current trend to interpret the felony-murder statutes in a narrow manner. As stated in 40 Am.Jur.2d, Homicide, § 39 (1968),
      “In a few instances, the ‘proximate cause’ theory of felony-murder responsibility has been invoked in an attempt to hold a felon responsible for the murder of his accomplice where the latter has been killed by another in the course of the original felony, but in accord with the modern tendency to restrict the growth of the felony-murder principle,12 the courts have generally construed the statutes with strictness and have held the felony-murder principle not applicable.12” (footnotes omitted)
      For more extensive treatment of the criminal liability of one engaged in felonious activity for a homicide committed by a person not a participant to the felonious acts, see Annot., 56 A.L.R.3d 239 (1974).


source: Caselaw Access Project

license: Public Domain

text:
    MARINER VILLAGE, LTD., Appellant, v. AMERICAN STATES INSURANCE CO., Appellee.
    No. 76-1491.
    District Court of Appeal of Florida, Second District.
    April 29, 1977.

      Charles W. Pittman, Charlie Luckie, Jr., and John W. Campbell, Macfarlane, Ferguson, Allison & Kelly, Tampa, for appellant.
    Howard P. Ross, Battaglia, Ross & Stol-ba, St. Petersburg, for appellee.
   HOBSON, Acting Chief Judge.

This case poses the question of whether the pleadings filed in a cause seeking to enforce a hold harmless agreement were sufficient to warrant entry of summary judgment for the plaintiff/appellee. The lower court found they were adequate to show the non-existence of any material fact. We reverse.

Appellant Mariner entered into a construction contract with Bullard and Walling, a general contractor. American States, appellee herein, provided a payment and performance bond as surety on the project. Problems arose and all three parties entered into a settlement agreement on November 3, 1975. Paragraph two of that agreement provided in part,

“Mariner agrees to hold Contractor and Surety harmless from any and all suits, actions, claims and causes of action which may be brought by an assigned subcontractor against Contractor and/or Surety as a result of work done on the Mariner project.”

Later, an addendum to the settlement agreement was entered into by the parties for clarification of several provisions, the first of which was the sixth sentence of paragraph two, quoted above. With respect to that provision in the original agreement the addendum read,

“1. That the sixth sentence in paragraph 2 of the Settlement Agreement shall mean the following:
(a) That Mariner shall hold Contractor and Surety harmless for any and all suits, actions, claims and causes of action which may be brought by an assigned subcontractor after the date of November 3, 1975, and for the amount of the retainage paid in escrow by the Contractor and Surety for said assigned subcontractor.
(b) That Mariner shall not hold Contractor and Surety harmless for any suits, actions, claims and causes of action which have accrued prior to November 3, 1975, and for which claim is not covered by the amount paid into escrow for said assigned subcontractor.”

Subsequently Ronald Slaughter, d/b/a Largo Plumbing Company, brought an action against American States on the payment and performance bond alleging inter alia its contract with the general contractor, full performance under the contract, and rights to retainages withheld but not paid. American States then filed a third-party complaint against Mariner alleging in substance that the latter was responsible for Largo Plumbing’s claim against American States. In paragraph four of that third-party complaint American States asserted in part, “Plaintiff [Largo Plumbing] in this cause is an assigned subcontractor as referred to in Exhibit ‘A’ attached hereto and the action sued upon accrued after November 3, 1975.” Exhibit “A” was a copy of the settlement agreement and addendum entered into between Mariner, American States, and Bullard and Walling. Other exhibits were also attached.

Shortly thereafter Mariner answered the third-party complaint, including one affirmative defense relating to the claim of Largo Plumbing. As to paragraph four, Mariner responded, “4. Paragraph 4 is denied.” American States then moved for summary judgment, which motion was granted as to the issue of liability.

Mariner in this interlocutory appeal posits, as it did in argument on the motion for summary judgment, that paragraph four of American States’ complaint was nothing more than a general allegation setting forth particular facts to comply with the settlement agreement as amended. Specifically, Mariner asserts it was incumbent on American States to show conclusively that Largo Plumbing was an assigned contractor and that the action sued upon accrued after November 3,1975. In support of that position Mariner points out that no affidavits, admissions, interrogatories or depositions were filed in support of the allegations in paragraph four.

In response to that assertion American States maintains that the settlement documents, complaint, and attached exhibits resolved any doubts concerning these issues, thereby leaving no material issues in dispute. American States also claims that the allegations of paragraph four spell out fully the only conditions precedent to its recovery and therefore by merely denying those allegations it was then Mariner’s duty to show the existence of a material fact.

The settlement agreement and pertinent portions of the amendment to that agreement clearly require, as a prerequisite to Mariner’s duty to hold harmless American States from liability, that the latter be subjected to some claim by an assigned subcontractor, which claim must have accrued after November, 3, 1975. Despite any contentions to the contrary, certain exhibits attached to American States’ complaint effectively show that Largo Plumbing was an assigned contractor on the project. In fact, Mariner admits as much in its reply brief filed in this cause.

We have thoroughly reviewed the record herein and conclude that a material issue of fact remains as to whether Largo Plumbing’s claim accrued before or after November 3,1975. True, paragraph four of American States’ complaint did allege that the action accrued after the specified date. However, this allegation was denied in Mariner’s answer.

Appellant’s contention that the allegations of paragraph four constituted the pleading of the performance of conditions precedent under Fla.R.Civ.P. 1.120(c) which required the denial thereof to be pled with particularity cannot be sustained. This rule is applicable only to a general allegation of the performance of conditions precedent as was made in paragraph five of the third-party complaint. Where there are allegations of specific facts, Fla.R.Civ.P. 1.110(c) permits the response by way of a simple denial.

When the allegations of paragraph four were denied, it was necessary for American States to present facts that would have conclusively demonstrated that the cause of action accrued after November 3, 1975. This was not done. There being a material issue of fact remaining, it was improper to enter summary judgment in favor of American States. Holl v. Talcott, 191 So.2d 40 (Fla.1966).

Accordingly, the partial summary judgment below is reversed and remanded for further proceedings consistent with the views expressed herein.

REVERSED and REMANDED.

GRIMES and SCHEB, JJ., concur.


author: ERVIN, Judge. BOYER, Chief Judge,

text:
    William T. HALL, Appellant, v. AIR FORCE FINANCE CENTER, DEPARTMENT OF the AIR FORCE OF the UNITED STATES of America, Appellee.
    No. CC-58.
    District Court of Appeal of Florida, First District.
    May 2, 1977.
    Lacy Mahon, Jr., Mahon, Farley & Vick-ers, Jacksonville, for appellant.
    Elliot Zisser, Zisser & Robison, Jacksonville, for appellee.
   ERVIN, Judge.

The primary issue presented by this appeal is whether 42 U.S.C.A. § 659 supersedes Florida Statutes 222.11 and 222.12.

A final judgment was entered in the Circuit Court of Duval County by which appellant (a member of the armed services) was found to be in arrears in child support and alimony payments required of him by a Final Judgment of Dissolution entered in California, and the California judgment was established as a judgment of the Circuit Court of Duval County. Appellant’s former wife then filed in the Circuit Court of Du-val County a Motion for Writ of Garnishment to which was attached an affidavit alleging that the monies sought to be recovered by garnishment were wages due appellant for his personal labor and services but that “they are not exempt according to the laws of the State of Florida nor of the laws of the United States of America.” Appellant responded with a Motion to Dismiss the Motion for Writ of Garnishment and with an affidavit alleging that the monies sought to be recovered in the garnishment proceeding were indeed wages due him for personal labor and services and further that he is the head of a family residing in the State of Florida.

The trial judge denied the Motion to Dismiss and granted the Motion for Issuance of Writ of Garnishment. This appeal followed.

Appellant argues that the trial court’s order denying the husband’s motion to dismiss and granting the wife’s petition for writ of garnishment was error because the trial court necessarily concluded that 42 U.S.C.A. § 659 supersedes § 222.11 and § 222.12. The order did not so state. We disagree with any contention that the federal statute necessarily supersedes the exemption statutes, but rather find that 42 U.S.C.A. § 659 is compatible with Section 61.12, Florida Statutes (1975), which states in part:

“So much as the court orders of the money or other things due to any person or public officer, state, or county, whether the head of a family residing in this state or not, when the money or other thing is due for the personal labor or service of the person or otherwise, is subject to attachment or garnishment to enforce the orders of the court of this state for alimony, suit money or child support, or other orders in proceedings for dissolution, alimony, or child support; * * * ”

The above section is derived from a statute first enacted by the legislature in 1901 and was intended by the legislature to stand as an exception to sections 222.11 and 222.12, by allowing garnishment of any person’s wages to enforce orders or judgments of the court for alimony, suit money or child support. This statute has remained in effect with only minor modifications since its original enactment until 1967 when it was amended by deleting any reference to the word “decrees.”

Opinions — particularly the more recent opinions — construing the effect of the statute appear contradictory and should be carefully scrutinized.

In Reynolds v. Reynolds, 113 Fla. 361, 152 So. 200 (1933), the Florida Supreme Court specifically held that the predecessor statute to 61.12, section 4992, Comp.Gen.Laws 1927, applied, and was authority for the issuance of writs of garnishment to enforce orders or decrees for suit money or alimony. There, the former wife, after obtaining a divorce decree in which the husband was ordered to make alimony payments to the wife, applied to the court for a writ of garnishment directed to her husband’s employer, alleging that the husband was delinquent in his alimony payments. The court concluded as follows:

“It is apparent that the legislation was intended to apply to all persons of every class, including public officers to whom money may be due for services or labor, and makes such moneys within limitations prescribed by the court’s order in divorce cases or suits for alimony subject to garnishment. Nor does the legislation confine the subject to orders for alimony or suit money, because the words of the act expressly extend its provisions to other orders or decrees than orders for the payment of alimony or suit money.” (Emphasis added.) Id. at 202.

In Robinson v. Robinson, 154 Fla. 464, 18 So.2d 29 (1944), the wife represented in her motion for writ of garnishment that her former husband had failed to pay alimony awarded her by a divorce decree and stated that the husband was to pay certain attorney’s fees and court costs. It should be noted that the wife did not pursue garnishment proceedings under Chapter 77, Florida Statutes, but that she relied upon Section 65.13, Florida Statutes (the predecessor statute to section 61.12). The Florida Supreme Court affirmed an order granting a motion to dismiss garnishment proceedings on the ground that the wife had not complied with Chapter 77. However, the cause was remanded without prejudice to the wife to amend her motion for garnishment and proceed under the general garnishment statute. The following comments by the court are especially instructive:

“Garnishment is an exclusive statutory remedy, unknown to the common law, and we are unable to see how one seeking its advantages to effect the payment of allotments made in a final decree of divorce under Section 65.13, supra, could proceed without reference to any other statutory provision.
* * * * * *
We are familiar with the case of Reynolds v. Reynolds, 113 Fla. 361, 152 So. 200, 202, where the court considered proceedings in garnishment to enforce the payment of installments of alimony, but we do not find that the point presented here was determined there. On the contrary, the court said: ‘Whether that statute [65.13, supra] is confined in its operation to public officers against whom writs of garnishment may be issued to enforce orders for suit money or alimony is the question to which the inquiry'in this case is limited.’ It was held that the statute was not confined to persons of that class. The decision is authority then for the position of the appellant here that Section 65.13, supra, made garnishment available to her for the enforcement of the orders for suit money and alimony. Having decided to resort to that method to collect the money she claimed appellee owed her, it was necessary that she comply with the requirements of Chapter 77 if she expected the remedy to be effectual.” (Emphasis added.) 18 So.2d at 31.

Later cases appear to muddy the water in instructing litigants which procedure to follow in attempting to enforce dissolution of marriage judgments. Some have refused to allow a writ of garnishment to issue unless an order had first been entered to enforce a previously entered judgment of dissolution.

In Noyes v. Cooper, 216 So.2d 799 (Fla. 3rd DCA 1968) a “final decree” was entered reducing to judgment certain past due sums owed to the former wife from the husband under a divorce decree previously entered. The wife first brought an action to garnish the husband’s wages, then filed a motion attempting to proceed under Section 61.12. The court affirmed the order denying the former wife the right to garnish her former husband’s wages, stating:

“We are not convinced that the final judgment obtained by the former wife comes within the character of an order to enforce the decree of a court of this state for alimony, suit money, or support, or other orders or decrees made by a Florida Court in a suit for divorce or alimony.” 216 So.2d at 800.

The court concluded, however, that while the wife could not prevail by seeking garnishment under the statute, it implied that she could recover had she followed the “general law relative to garnishment after judgment. . . .”, citing Robinson v. Robinson, supra.

In Costa v. Costa, 285 So.2d 665 (Fla. 3rd DCA 1973), the court reversed an order denying a motion to dissolve a writ of garnishment. The writ was issued upon a judgment which authorized execution for an unpaid attorney’s fee in a prior divorce action. Based upon its prior opinion in Noyes v. Cooper, supra, the court concluded that the provisions of Section 61.12 do not apply “for collection of a judgment (with execution authorized) which has been entered for nonpayment thereof.” Id. at 666. This opinion appears to be at odds with Reynolds v. Reynolds, supra, and Robinson v. Robinson, supra. It also would seem to have been modified sub silentio by the court’s later opinion in DeCastro v. DeCastro, 334 So.2d 834 (Fla. 3rd DCA 1976). In DeCastro, after judgment of dissolution was entered, the trial court entered a money judgment against the former husband for unpaid temporary alimony. The husband contended on appeal that the trial court should not have allowed the collection of past due alimony under Section 61.12, citing Noyes v. Cooper, supra. The Third District Court of Appeal distinguished Cooper, stating:

“In that case the judgment was not for alimony but for sums due on a property settlement. The cited section is clearly applicable to the situation now before us.” Id. at 835.

The Florida Supreme Court in Robinson v. Robinson, supra, has set forth the procedure which must be followed in order to obtain a writ of garnishment to enforce a judgment of dissolution. It is clear that a litigant should scrupulously follow the procedure set forth under Chapter 77, particularly pertaining to garnishment after judgment.

As previously observed, the statute was amended in 1967, and the word “decrees” was deleted. The word “judgment” was not inserted in its place. Nevertheless we are of the opinion that the omission was merely inadvertent and does not represent a willful intention by the legislature to require that a former spouse may seek the benefits of the statute only if an order has been entered enforcing a final judgment of dissolution previously entered. In 1967 the legislature renumbered Chapter 65 and placed its provisions under Chapter 61. It also made minor modifications in Chapter 61, presumably to conform to Pla.R.Civ.P. 1.040, which became effective January 1, 1967. Rule 1.040 provides there would only be one form of action to be known as a civil action. Thus the separate actions in either law or equity were abolished.

It is necessary to consult traditional rules of statutory construction to determine what effect should be given the statute’s provisions. While the court is obligated to give meaning to all words chosen by the legislature in enacting a statute, Atlantic C.L.R. Co. v. Boyd, 102 So.2d 709 (Fla.1958), there are situations where it is clear that the sense of the whole legislation may not be preserved if a word is isolated and given its strict, even if proper meaning, therefore the primary rule of giving effect to the legislative intent will be followed. Scenic Hills Utility Co. v. Pensacola, 156 So.2d 874 (Fla. 1st DCA 1963). Moreover, the statute being one which gives to the former wife the right to garnish or attach the wages of the former husband is one which is remedial and is entitled to a liberal construction so as to advance the remedy provided and give effect to the intention of the legislature as gathered from the language used. 30 Fla.Jur. Statutes section 127.

In the present case, the wife, Juanita Hall, did all that she was required to do under Section 61.12, Chapter 77, and appropriate Florida eases. She obtained first a judgment of dissolution of marriage in the State of California, which judgment included support and alimony payments for the benefit of the wife and child. This judgment was then established as a final judgment of dissolution in Florida and provided that the husband was indebted to the wife in the sum of $2,250.00 for past due alimony payments. She then filed a motion for writ of garnishment after judgment, and, following answer by the husband, obtained an order granting the writ.

The order granting the wife’s motion for writ of garnishment and denying the husband’s motion to dismiss is AFFIRMED.

MILLS, J., concurs.

BOYER, C. J., dissents.

BOYER, Chief Judge,

dissenting.

I respectfully dissent. The issue framed and briefed by the attorneys for the respective parties is whether 42 U.S.C.A. § 659 supersedes Florida Statutes 222.11 and 222.-12. Appellee argues in its brief, and the trial judge apparently ruled, that Title 42 U.S.C.A. § 659 permits garnishment for the recovery of child support and alimony owed by members of the armed services and other federal employees regardless of contrary state law, specifically Florida Statute 222.-11. I agree with the majority that clearly the federal act was not intended to supersede state law. The effect of the federal act is nothing more than to waive sovereign immunity of the United States government. (Golightly v. Golightly, 410 F.Supp. 861, 863 (D.Neb. 1976)) There is nothing in the federal act contrary to nor in derogation of Florida Statutes 222.11 and 222.12.

However, this Court has gone further than did either of the parties and apparently further than the trial judge and has introduced, without benefit of briefs or argument, Florida Statute 61.12. As observed by the majority, opinions construing that statute are contradictory. It is clear, though, from a reading of the statute in its present form that at no place is the word “judgment” used. The statute refers only to “orders”. Orders and judgments are not the same, particularly when the payment of money is the subject matter. An order to pay money may, in a domestic relations action, be enforced by contempt proceedings and incarceration. Enforcement of a money judgment in such manner is constitutionally impermissible. The statute was deliberately amended in 1967 by the deletion of the word “decrees”. The word “judgment” was not substituted. In recognition of the distinction between orders and judgments, and in view of the fact that it would have been a simple matter for the legislature to have inserted the word “judgment” when the statute was amended, I would construe the statute according to its literal verbiage and restrict its application to orders.

Accordingly, if the trial judge held that 42 U.S.C.A. § 659 supersedes Florida Statutes 222.11 and 222.12, as I conceive he did, I would reverse. If, on the other hand, he construed Florida Statute 61.12 as being applicable to judgments as well as orders, of which there is no evidence before us, I would also reverse on that holding.

      . Title 42 U.S.C.A. § 659
      “Notwithstanding any other provision of the law, effective January 1, 1975, moneys (the entitlement to which is based upon remuneration for employment) due from, or payable by, the United States (including any agency or instrumentality thereof and any wholly owned Federal corporation) to any individual, including members of the armed services, shall be subject, in like manner and to the same extent as if the United States were a private person, to legal process brought for the enforcement, against such individual of his legal obligation to provide child support or to make alimony payments.”

      . Florida Statutes 222.11 provides as follows:
      “222.11 Exemption of wages from garnishment. — No writ of attachment or garnishment or other process shall issue from any of the courts of this state to attach or delay the payment of any money or other thing due to any person who is the head of a family residing in this state, when the money or other thing is due for the personal labor or services of such person.”

      . No issue was made before the trial court nor on this appeal as to whether or not in fact appellant is the head of a family residing in the State of Florida.

      . “That all moneys or other things due to any person or public officer, State or county, whether the head of a family or not, residing in this State, when the money or other things is due for the personal labor or service of such person or otherwise, shall be subject to attachment or garnishment to enforce the orders or decrees of the courts of this State for alimony, suit money, or support or other orders or decrees made by the courts of this State in suits for divorce or alimony: * * * ” Laws 1901, Ch. 4973, § 1.

      . Gen.St.1906, § 1937; Laws 1919, Ch. 7838, § 10, sub. 4; Rev.Gen.St.1920, § 3200; Comp.Gen.Laws 1927, § 4992.

      . As a caveat, it would be advisable for the applicant to apply to the trial judge first for an order authorizing the writ rather than seeking it directly from the clerk. Cf., Healy v. Toolan, 227 So.2d 55, 56 (Fla. 4th DCA 1969) (Concurring opinion, White, Assoc. J.).

      . For example, § 65.05, pertaining to “Effect of decree of divorce upon children,” was changed to “Effect of judgment of divorce on children.” For similar changes compare § 65.08 to § 61.08; § 65.11 with § 61.11; § 65.15 with § 61.14 and § 65.20 with § 61.19.


author: PER CURIAM.

text:
    Ernest T. HAYES and Loiann Hayes, his wife, Appellants, v. BETTER BRANDS, INC., et al., Appellees.
    No. CC-305.
    District Court of Appeal of Florida, First District.
    May 2, 1977.
    Ray S. Brill, Jr., of Brill & Burt, Gaines-ville, for appellants.
    John E. Houser, C. T. Boyd, Jr., of Boyd, Jenerette, Leemis & Staas, Jacksonville, Richard T. Jones of Jones & Ritch, Gaines-ville, for appellees.
   PER CURIAM.

Appellants, who were plaintiffs in the trial court, appeal from a summary final judgment in favor of the several defendants, appellees here. We have repeatedly recognized the law applicable to the entry of summary judgments and no useful purpose will be accomplished by repetition here. ( See Connell v. Sledge, 306 So.2d 194 (Fla. 1st DCA 1975), cert. dismissed, 336 So.2d 105 (Fla.1976).

It is noted that . the summary judgment rule, Fla.R.Civ.P. 1.510 provides in material part that “The judgment sought shall be rendered forthwith if the pleadings [etc.] show that there is no genuine issue as to any material fact * * * The relevant word is “material”. Having carefully examined the record and attentively listened to oral argument we reach the inescapable conclusion, as did the trial judge, that there is no issue as to any material fact in this case relative to proximate causative negligence on the part of any of the defendants in the trial court, appellees here. The summary final judgment here appealed was therefore properly entered.

AFFIRMED.

BOYER, C. J., MILLS, J., and DURDEN, J. ROBERT, Associate Judge, concur.


author: BOYER, Chief Judge.

text:
    LION INSURANCE COMPANY OF NEW YORK, Appellant, v. Georgia Anne CLARK, an infant, by her father and next friend, Robert Clark, and Robert Clark, Individually, Appellees.
    No. EE-129.
    District Court of Appeal of Florida, First District.
    May 2, 1977.

      John M. Green, Jr., Green, Simmons, Green & Hightower, Ocala, for appellant.
    John W. Arnett, Jr., and Victor J. Mus-leh, Musleh, Leak, Bond & Arnett, and John H. Piccin, Ocala, for appellees.
   BOYER, Chief Judge.

Appellant, defendant in the trial court, seeks reversal of an order of that court granting plaintiffs’ (appellees here) motion for summary judgment on the issue of coverage.

Appellant phrases the sole point on appeal as follows: A motor vehicle operator is not entitled to recover from his own insurer under the uninsured motorist provisions of his insurance policy when his vehicle was struck by a motor vehicle operated by a person who has a bodily injury liability insurance policy in an amount sufficient to satisfy the financial responsibility law of the state of Florida.

The learned trial judge held contra. We reverse.

The trial court apparently relied upon Allstate Insurance Company v. Chastain, 251 So.2d 354 (Fla.3rd DCA 1971), cert. discg., 263 So.2d 578 (Fla.1972), which we find to be in conflict with a prior decision of this court, Gordon v. Phoenix Insurance Company, 242 So.2d 485 (Fla.1st DCA 1970). The dissent in the Chastain case is in line with our holding in the Gordon case. We adhere to our prior opinion. (See also Golphin v. Home Indemnity Company, 284 So.2d 442 (Fla.1st DCA 1973) and Milling v. State Farm Fire & Casualty Co., 333 So.2d 511 (Fla.1st DCA 1976)).

REVERSED.

McCORD and MILLS, JJ., concur.


author: PER CURIAM. ERVIN, Judge,

text:
    Gertrude E. KRIEGER, Appellant, v. Richard H. KRIEGER, Appellee.
    No. CC-64.
    District Court of Appeal of Florida, First District.
    May 3, 1977.

      Susan C. Jamieson, Jacksonville, for appellant.
    Richard H. Krieger, pro se.
   PER CURIAM.

AFFIRMED.

MILLS, Acting C. J., and DURDEN, J. ROBERT, Associate Judge, concur.

ERVIN, J., dissents.

ERVIN, Judge,

dissenting.

I dissent. Gertrude Krieger filed petition for separate maintenance against Richard Krieger, appellee, alleging that he willfully abandoned her in August, 1972 and refused to support and maintain her ever since. She further alleged that she was without funds, income or property with which to support and maintain herself. The husband filed his answer and counter-petition for dissolution of marriage, alleging constructive desertion by the wife for her refusal to return with him to the United States and her continued residence in West Germany; thereby forfeiting her right to alimony. The wife filed her answer to the counter-petition, including a prayer for permanent alimony. Following hearing, the court entered final judgment of dissolution of marriage and denied the wife’s petition for alimony. The wife appeals the denial of her application for alimony.

At the hearing held on April 1,1976, only the husband and his son were present to testify. The record before this court is based upon the deposition testimony of the wife and a stipulation to the testimony given by the husband and son at the hearing. The wife’s deposition shows that she was born in Germany in 1925, but later became an American citizen, completed ten years of education, was employed prior to the marriage, but had not worked during the 22 years preceding the separation; instead attended to her duties as a homemaker and raised their two children to adulthood. She testified that since the separation she had worked temporarily at several jobs but was presently unemployed. Although she often sought employment she was told she was too old and, due to her lack of experience, was advised by prospective employers she was not qualified. Moreover, her physical health was poor due to a nervous condition which had existed the preceding three years.

She stated that the reason she did not accompany her husband to the United States was that he did not provide her with transportation and that he did not wish her to accompany him there. Moreover, due to her belief that since the separation her husband had taken up residence with another woman, she felt she had no place to go. She testified that she received $263.85 unemployment or welfare benefits from the German government per month and that her financial needs were in excess of $396.00 per month. In a financial affidavit, Mrs. Krieger stated that she had total liabilities consisting of loans in the sum of $3,023.30.

In the stipulation of testimony taken at the final hearing, the husband stated that his reason for leaving Germany was to seek employment in the United States due to his forced retirement from his position as an equipment specialist civil employee with the United States Army in 1972 because of a reduction in the military which caused his job eliminated. Prior to his retirement his gross income in 1972 and 1973 was $17,-500.00. He did not seriously expect his wife to accompany him because they had experienced marital difficulties since 1966 and had discussed separation many times.

The court’s final judgment of dissolution, relating to the denial of alimony, stated only “[t]he wife’s petition for alimony is hereby denied and neither party shall receive alimony from the other.” The court gave no reasons for its denial of the wife’s petition; consequently we may only conclude that it determined that the wife was not entitled to alimony because of her misconduct in failing to accompany her husband on his return to the United States; thereby accepting the husband’s argument that she was guilty of constructive desertion. Great weight of course must be accorded the judgments of the trial court, and alimony awards will not be disturbed unless an abuse of discretion is shown. Sommese v. Sommese, 324 So.2d 647 (Fla. 1st DCA 1976). In Sisson v. Sisson, 336 So.2d 1129 (Fla.1976), the Florida Supreme Court recently held that appellant is required to show clearly that the trial court abused its discretion in the amount of the award of alimony. The question necessarily, under the particular circumstances of this case, is: Did the trial court abuse its discretion in denying the wife’s petition for alimony?

I.

It cannot seriously be argued that the wife did not establish her entitlement to alimony based upon her need and the ability of the husband to pay. In Sisson v. Sisson, supra, the Supreme Court stated that whether or not alimony is characterized as permanent or rehabilitative, the principle issues to be determined are the need of the spouse seeking alimony and the ability of the other spouse to pay. In discussing the effect of the “No-Fault Divorce Act” upon the right of the spouse to obtain alimony, the Fourth District Court of Appeal in Lefler v. Lefler, 264 So.2d 112 (Fla. 4th DCA 1972), stated:

“We have the view, however, that no matter which direction the flow of alimony may take, its basic nature and purpose remains the same as heretofore, i. e., to provide nourishment, sustenance and the necessities of life to a former spouse who has neither the resources nor ability to be self-sustaining. We expressly hold that just as heretofore the wife’s entitlement to alimony depended upon a showing of her need and the husband’s ability to pay, Jacobs v. Jacobs, Fla.1951, 50 So.2d 169; Pendleton v. Pendleton, Fla.App.1966, 189 So.2d 499; 10 Fla.Jur., Divorce, § 166, so now the husband’s entitlement to alimony depends upon a showing of his need and the wife’s ability to pay.” 264 So.2d 113-114. (Emphasis supplied.)

The cases are replete with situations similar to those in the case before us where the wife was held to be entitled to alimony when it was shown that (1) the wife faithfully attended to her marital duties for many years; (2) she was later unemployable due to her physical condition or lack of outside employment experience and (3) the husband was capable of providing support for the wife. E. g., Lash v. Lash, 307 So.2d 241 (Fla. 2nd DCA 1975); Norton v. Norton, 328 So.2d 484 (Fla. 1st DCA 1976); Nevins v. Nevins, 305 So.2d 63 (Fla. 3rd DCA 1974); Gall v. Gall, 336 So.2d 10 (Fla. 2nd DCA 1976); Fugassi v. Fugassi, 332 So.2d 695 (Fla. 4th DCA 1976); Calligarich v. Calligarich, 256 So.2d 60 (Fla. 4th DCA 1971); Sharpe v. Sharpe, 267 So.2d 665 (Fla. 3rd DCA 1972); Palmer v. Palmer, 338 So.2d 86 (Fla. 1st DCA 1976).

Additional factors to be considered in awarding alimony include, as stated by the Fourth District Court of Appeal in Gordon v. Gordon, 335 So.2d 321, 322 (Fla. 4th DCA 1976):

“. . . due consideration must be given ‘the value of the parties’ estates, the parties’ earning ability, age, health, station in life, duration of marriage, conduct of the parties, prior marriages, and relative responsibilities as to other dependents who have claims on the husband for sustenance or education.’ See Gordon v. Gordon, 192 So.2d 514 (Fla.App. 1st 1966). See also McBee v. McRee, 267 So.2d 21 (Fla.App. 4th 1972).”

When we consider the above factors as applied to facts before us, we find that the wife was 51 years of age at the time of the final judgment of dissolution, her health was poor, the prospects of her future earning ability were bleak due both to her deteriorated physical condition and to the fact that she had no employment experience for 22 years prior to the separation. When we examine the financial ability of Mr. Krieger to provide for the needs of his former wife, we find a man who has no separate estate of his own; who, at the time of the final hearing, was temporarily unemployed, but was nevertheless in good health and who received a monthly civil service annuity of $841.00. Moreover he claimed no persons on his income tax return dependent upon him for support. We may fairly conclude that Mr. Krieger, while far from a man of affluence, nevertheless was capable of providing some degree of sustenance to his wife’s dire financial plight. The wife’s situation here was very much like that described by the Second District Court of Appeal in Lash v. Lash, supra:

“. . .in those cases where the dissolution comes about after many years of marriage, there are different circumstances to be considered. [From those in which dissolution occurs after a short period of time.] In the first place, it often happens that the wife has given up her career upon marriage in order to manage the home and raise children. Furthermore, in a marriage where the wife has stayed home, the husband has had the opportunity of enhancing his working expertise during the entire period of his married life; whereas, the wife, if anything, may now be less equipped for work than she was when she became married.” 307 So.2d at 243.

II.

The wife has made a prima facie showing of her entitlement to alimony. The only remaining question, then, is whether she forfeited her rights thereto by her failure to return to the United States with her husband? She argues that her misconduct, if any, does not constitute a bar since the only misconduct mentioned under Section 61.08(1), Florida Statutes (1975), which gives the chancellor discretion to enter an outright denial of a request for alimony, is adultery and since the record contains no proof that she was an adulterous wife, she has clearly established her entitlement to the award, having shown her need and the ability of the husband to pay. The argument continues that having made such showing, the chancellor is vested only with the discretion, under Section 61.08(2), to determine the amount of the award.

In Oliver v. Oliver, 285 So.2d 638 (Fla. 4th DCA 1973), the court, when confronted with the issue of the spouse’s entitlement to alimony when he or she was also guilty of misconduct, stated:

“As all know, there is a wide range of discretion vested in the court in deciding how much and the kind of alimony to award and there are many factors, such as the misconduct of a party, that may properly be placed before the court touching upon the issue and which form the basis for the proper exercise of such discretion. See 10A Fla.Jur., Dissolution of Marriage, Separation, and Annulment, § 52 et seq. Alimony is not determined by some iron clad formula that can be applied with sharp certainty. The equities, circumstances and the whole marital picture furnish and form the fabric from which the award is to be cut, and if the court limits itself solely to the economics of the matter, it deprives itself of valuable factors that may aid in doing justice to the problem.
The predecessor statute, Section 61.08, F.S.1969, F.S.A., is not materially different from the current statute, 61.08(2), supra, as both provide for alimony based upon a consideration of equity and justice.
We feel that because of the mentioned similarity between the two statutes, the case law that construed the earlier alimony statute concerning the misconduct of the parties is equally applicable to the 1971 statute. Thus, the marital conduct and misconduct of the parties is a factor to be considered in determining alimony. Hobbs v. Hobbs, Fla.App.1962, 136 So.2d 363. See also 9 A.L.R.2d 1026 and 34 A.L.R.2d 313; Fla.Family Law, § 22.39 (2d ed. 1972).” 285 So.2d at 640-641. (Emphasis supplied.)

Thus for a proper resolution to the question before us it is necessary to examine those cases which construed the predecessor statutes of Section 61.08.

In Phinney v. Phinney, 77 Fla. 850, 82 So. 357 (1919), the court held, in construing the effect of Section 1932, General Statutes, 1906, Compiled Laws 1914, that permanent alimony could not be awarded to the former wife in a suit brought by the husband where the divorce was granted for the fault of the wife. This opinion was modified by the court’s later decision in Gill v. Gill, 107 Fla. 588, 145 So. 758 (1933). In Gill, the husband was awarded a divorce from his wife on the grounds of the wife’s extreme cruelty and violent and ungovernable temper. The court limited its prior holding in Phinney v. Phinney, supra, barring alimony to the wife to situations Where the wife was wholly at fault. The rule, however, the court continued, does not apply when the husband has not been entirely free from blame, or when the wife has contributed personally to the husband’s estate, either from her industry or from her property. Since the husband was not free from fault, the court reversed that portion of the final decree refusing alimony to the wife.

A year later in Mathews v. Mathews, 117 Fla. 60, 157 So. 195 (1934), while the chancellor granted a divorce to the husband on the ground of the wife’s desertion, nevertheless he awarded permanent alimony to the wife. In Mathews, there were no facts showing any degree of fault on behalf of the husband and the court held in a split decision that the award of alimony was justified “by an equitable consideration of the whole record . . . . ” 157 So. at 196. The dissenting opinion of Davis, Chief Justice, quoted the following words from the chancellor’s decree: “ ‘. . . a faithful wife of 40 years is entitled consideration even though at the end she should desert the husband and the burden of contribution might be a heavy one for the husband, . . ."’ Id. 157 So. at 196. While not expressly so stating, I assume the majority opinion tacitly approved the reasoning supporting the chancellor’s conclusion.

In Randolph v. Randolph, 146 Fla. 491, 1 So.2d 480 (1941), the husband filed a bill for divorce against his wife on the grounds of extreme cruelty and violent and ungovernable temper. The wife counterclaimed charging her husband with the same offenses. At the final hearing the court found that both parties proved their case and entered a decree divorcing each from the other. Replying to the husband’s contention that the alimony statute and Phinney v. Phinney, supra, barred the offending spouse from alimony if she was the actuating cause of the divorce, the court responded:

“We do not so interpret the statute and the last cited case when read in the light of the statute does not warrant that interpretation. The only class barred absolutely from alimony is the adulterous wife. In all other cases, the Chancellor may award such amounts for alimony as in the ‘circumstances of the parties and nature of the case may be fit, equitable and just.’ Aside from adultery, the circumstances and conduct of an offending spouse might be such as to bar her from alimony but this is a matter solely in the discretion of the Chancellor governed by equity and justice and the condition of both parties. All these factors the Chancellor should consider and adjudicate the claim for alimony accordingly.” 1 So.2d at 481. (Emphasis supplied.)

There evolved from Randolph an ad hoc determination, based upon the particular circumstances of each case, whether a non-adulterous wife, guilty of some misconduct, should be awarded alimony.

The court’s opinion in Randolph was expressly followed shortly afterward in Cowan v. Cowan, 147 Fla. 473, 2 So.2d 869 (1941), where it was held that the trial court had discretion in all cases but that of adultery of the wife to grant alimony to the wife. In a concurring opinion by Chief Justice Brown, it was stated that the effect of the court’s opinion was to overrule its prior holding in Phinney v. Phinney, supra.

In Borden v. Borden, 156 Fla. 770, 23 So.2d 529 (1945), a decree of divorce was granted to the wife on the ground of habitual intemperance of the husband. Despite her needs and the husband’s ability to pay, she was denied alimony by the trial court for the apparent reason that she had attempted to perpetrate a fraud on her husband by inserting her name along with his as grantee in a bill of sale to a boat. On appeal, the court stated that the only penalty for the wife’s wrongdoing recognized by the statute, Section 65.08, Florida Statutes (1941), was adultery and reversed the court’s failure to award alimony to the wife.

Brunner v. Brunner, 159 Fla. 762, 32 So.2d 736 (1947) is the first case reversing a denial of alimony to the wife when the husband obtained a divorce based solely upon the fault of the wife. The court’s reversal of the denial of alimony was founded purely upon equitable circumstances. Answering the husband’s argument that the husband had placed with his wife for safekeeping several thousand dollars which was not returned to him, and that she had dissipated her husband’s money at race tracks, and was therefore not entitled to alimony, the court said:

“We do not understand that these contentions, or either of them, are exceptions to the provisions of Section 65.08, supra, which makes it the duty of a husband to pay his wife alimony or otherwise provide for her support and maintenance. It was error on the part of the court below in the final decree not to make provision for the support and maintenance of the wife. The husband is shown to be financially able to pay and the wife’s necessity is clearly apparent.” 32 So.2d at 737. (Emphasis added.)

Cases affirming judgments of dissolution which disallowed an award of alimony to the wife turn on such circumstances as the wife being youthful, in good health, capable of employment, and the marriage terminating after a short period of time. E. g., McCarter v. McCarter, 131 Fla. 561, 179 So. 760 (1938); Golembeski v. Golembeski, 57 So.2d 654 (Fla.1952); Howell v. Howell, 109 So.2d 882 (Fla.1959). Since Phinney, the common thread running throughout all the Florida Supreme Court cases on the subject is the overriding concern by the court of the relative positions of the parties: the needs of the wife and the financial ability of the husband to pay.

The No-Fault Divorce Act must be given a liberal construction by the courts. Section 61.001 states in part:

“1. This chapter shall be liberally construed and applied to promote its purposes.
2. Its purposes are:
* * * * * *
c. To mitigate the potential harm to the spouses and their children caused by the process of legal dissolution of marriage.” (Emphasis added.)

Section 61.08(2) permits the court to consider “any factor necessary to do equity and justice” in determining the amount of alimony to be awarded. While the chancellor may properly consider the misconduct of the spouse seeking alimony, it should not be the only factor motivating his determination. He may not, consistent with a sound exercise of judicial discretion, close his eyes to the needs of the supplicant spouse.

True, the wife may have been guilty of misconduct by her refusal to accompany her husband to America, but a fair conclusion to be drawn from this record is that the husband was not himself free from fault. Both parties admitted that a strain had weakened the marital foundation for six years preceding the husband’s departure. The husband so testified and even stated that he did not really believe Mrs. Krieger would join him on his return to the United States. Prior to his leave-taking, he and Mrs. Krieger had discussed separation on many occasions. One may easily conclude that the marriage had deteriorated to such a condition that by the time of the separation, the marital bonds had been de facto irretrievably broken.

I am convinced this record amply establishes the entitlement of the wife to permanent alimony and that the chancellor abused his discretion in denying her any consideration of assistance. It is conceivable that the former wife may eventually become employable. As this court observed in Norton v. Norton, supra, “permanent” does not mean “forever”. If Mr. Krieger can later establish that his former wife’s condition has changed to the point where she is capable of securing employment, he may of course make application pursuant to Section 61.14 to the trial court for modification of the alimony award.

I would reverse that portion of the final judgment of dissolution denying alimony to the wife.

      . Which provides:
      “In a proceeding for dissolution of marriage, the court may grant alimony to either party, which alimony may be rehabilitative or permanent in nature. In any award of alimony, the court may order periodic payments or payments in lump sum or both. The court may consider the adultery of a spouse and the circumstances thereof in determining whether alimony shall be awarded to such spouse and the amount of alimony, if any, to be awarded to such spouse.”

      . Which provides:
      “In determining a proper award of alimony, the court may consider any factor necessary to do equity and justice between the parties.”

      . Providing:
      “In every decree of divorce in a suit by the wife, the court shall make such orders touching the maintenance, alimony and suit money of the wife, or any allowance to be made to her, and if any, the security to be given for the same, as from the circumstances of the parties and nature of the case may be fit, equitable and just; but no alimony shall be granted to an adulterous wife.”