author: HUBBART, Judge.

text:
    Margaret Mary PFOHL, Appellant, v. Roger Lee PFOHL, Appellee.
    No. 76-170.
    District Court of Appeal of Florida, Third District.
    April 26, 1977.
    Rehearing Denied May 23, 1977.

      Frates, Floyd Pearson, Stewart, Richman & Greer and James B. Tilghman, Jr., Miami, and Walter D. Crane, Fort Lauderdale, for appellant.
    Cypen & Nevins, Miami, for appellee:
    Before HAVERFIELD and HUBBART, JJ., and CHARLES CARROLL (Ret.), Associate Judge.
   HUBBART, Judge.

This is an action for dissolution of marriage in which the husband was awarded lump sum and rehabilitative alimony as well as attorneys’ fees. The wife appeals and the husband cross appeals, raising questions which go to the propriety and sufficiency of such awards.

On May 28, 1966, the parties were married. At the time of the marriage, the wife owned a one third interest in a trucking company given to her by her father, which interest she sold in 1972 for seven million dollars. The husband had no assets going into the marriage except for a one half interest in one hundred shares of Sears Roebuck stock. He had been employed for four and one half years as a toy salesman for Strombecker Toy Co. earning a salary of approximately $9,000-$10,000 a year plus expenses and bonus. He resigned this job after one and a half years of marriage to satisfy the wife’s wishes. She did not like his traveling which was necessary to pursue his line of work, and refused to move to New York with, him to accept a promotion. Prior to the marriage, he had finished three years of college and received an honorable discharge from the marines. The couple had two sons, now ages 8 and 2.

The parties lived a life of extreme luxury and comfort during a marriage which lasted nine years prior to the parties’ final separation. The wife supported the family at first through contributions from her father, and from 1972-75 from her own separate estate.

Both the husband and wife had an unlimited joint checking account. Both had access to the wife’s extensive properties: a one hundred acre farm in Elgin, Illinois, purchased for $500,000; a five bedroom house in Chicago; and two homes in Bal Harbour, Florida, purchased for $140,000 and $60,000 respectively. Both had access to a six bedroom home and an eighty acre farm in Crystal Lake, Illinois, in which the wife gave the husband one half interest.

The husband had all the major credit cards with unlimited credit plus charge accounts at many luxury stores where he regularly shopped. He maintained extensive clothing in their Florida and Illinois homes. Several times each year he paid substantial entry fees so he could participate in celebrity golf tournaments such as the Bob Hope and Andy Williams Classics.

The parties were members of seven luxury country clubs in Chicago and Miami for which the wife paid substantial initial membership sums and all the subsequent dues and bills incurred. They traveled extensively throughout the country and the world, and because of the wife’s substantial interest in race horses, routinely traveled to the Kentucky Derby and other races in New York, California and Illinois. They were attended by servants in their homes in Florida and Illinois. They entertained extensively at home and various clubs at which they were members. They had full access to the seventy-five foot family yacht on which they maintained a full crew, contributing $3,000 a month to the operation of the vessel. In addition, they had two late model Cadillacs, a Buick stationwagon and a speedboat.

The husband estimated that his living expenses during the marriage were over $5,000 a month. The wife estimated that the family’s total monthly living expenses were approximately $15,000 including income taxes. The wife could not have provided the foregoing fantasy-land existence for the husband on anything less than enormous resources. At the time of the final hearing, she had a net worth of $4,250,000 including cash and marketable securities of $3,325,000 plus an annual net income of $200,000.

During the marriage the husband dabbled, but never seriously participated in various business ventures provided by his wife’s family. He was a figurehead president of the Antioch Insurance Agency for four years. Following this venture, he was a treasurer and director in the Antioch Savings and Loan Association from which he was eventually removed for failure to attend meetings.

The parties ceased living together as husband and wife on May 6, 1975. At that time the wife forbade the husband to return to their home in Florida or to live in any other of her properties. She removed his clothes therefrom and the husband has remained unemployed living with friends at a drastically reduced living style ever since. He unsuccessfully sought employment on several occasions in Florida and Chicago. There is evidence that the husband presently suffers from a mental disorder requiring professional treatment, but that at 37 he is in excellent physical health.

At the time of the dissolution, the husband held the following assets, all provided to him by the wife during the marriage: an undivided one half interest in an eighty acre farm in Crystal Lake, Illinois, his interest valued at $160,000; a 1974 and 1975 Cadillac valued together at a total of $12,-000; and a twenty-five foot power boat valued at $6,000. In addition, he leaves the marriage with his original one half interest in one hundred shares of Sears Roebuck stock valued at $6,000 and an 80 percent ownership interest in a Ft. Lauderdale lounge known as the “Filling Station.” The husband owes the wife $60,000 for the purchase of this lounge which at the time of the final hearing was up for sale for $110,-000. He, therefore, has approximately $200,000 in assets, almost all of which are non-liquid and non-income producing.

The wife filed a petition for dissolution of marriage seeking the dissolution of the marriage, custody of the parties’ two minor children and an adjudication of her rights as to the $60,000 loan which she had made to the husband. The husband answered denying that the marriage was irretrievably broken as well as the allegations concerning the loan. He requested alimony, attorneys fees and suit monies. The wife replied denying the husband’s need for alimony, suit monies, and attorneys fees, which reply was amended to assert adultery as a defense to his claim for alimony, suit monies and attorneys fees.

The case came on for final hearing in which the trial court heard extensive testimony and reviewed certain physical evidence. Thereafter, the court entered a final judgment dissolving the marriage, awarding custody of the children to the wife with rights of visitation for the husband and requiring the husband to pay the wife $60,000 from his share of the proceeds obtained from the sale of the “Filling Station” lounge in Ft. Lauderdale. These parts of the final judgment are not contested by either party on this appeal.

The court further ordered the wife to pay the husband $30,000 lump sum alimony and $5,000 a month rehabilitative alimony for eighteen months. Both parties contest these awards.

At a subsequent hearing, the court took testimony and heard arguments as to reasonable attorneys fees. Thereafter the court awarded $30,000 in attorneys fees and $1,191.36 in suit monies for the husband. The wife contests this award.

I

The major question presented for review is whether it is an abuse of discretion in a dissolution of marriage action for a trial court to award the husband $30,000 in lump sum alimony and $5,000 a month rehabilitative alimony for 18 months when: (1) the wife has a net worth of $4,250,000; (2) the parties shared an extremely high standard of living at first supported by the wife based on contributions to her from her father and thereafter based entirely on her own wealth during a nine year marriage; (3) the husband is 37 years old, unemployed with limited employment skills, in good physical, but impaired mental health, and in possession of approximately $200,000 assets most of which were received during the marriage from the wife.

Both parties contend that the trial judge abused his discretion. The wife argues that the husband is not entitled to any alimony; the husband argues that the amount of lump sum alimony is inadequate and that permanent, rather than rehabilitative alimony should have been awarded. We reject all these contentions and hold that the alimony awards herein were well within the discretion of the trial judge to make under the circumstances of this case.

A

Alimony has been traditionally considered an allowance which a husband is required to make in order to maintain his wife in the event of separation or divorce and is based on the common law obligation of a husband to support his wife. Floyd v. Floyd, 91 Fla. 910, 108 So. 896 (1926). In determining the amount of such alimony, the courts have established two criteria: (1) the husband’s ability to pay, and (2) the needs of the wife, taking into consideration the-standard of living shared by the parties to the marriage. Sisson v. Sisson, 336 So.2d 1129 (Fla.1976); Firestone v. Firestone, 263 So.2d 223 (Fla.1972); Sharpe v. Sharpe, 267 So.2d 665 (Fla. 3d DCA 1972); Carmel v. Carmel, 282 So.2d 6 (Fla. 3d DCA 1973).

Quite properly, these are criteria of the broadest nature, not susceptible to a precise formula automatically translatable into dollars and cents. We are dealing with a tragically human problem which touches peoples’ lives during a period of immense personal crisis. One cannot dispense substantial justice in such explosive cases as if the answer lies in a computer or a rigid rule book. Mathematical exactness is neither possible nor desirable. The trial court of necessity has a wide discretion to apply the established criteria in fashioning a fair and equitable alimony award in the infinite variety of cases which come before it. Absent a showing that the trial court exercised this discretion arbitrarily or unfairly, alimony awards made pursuant to such criteria must be sustained on appeal. Shaw v. Shaw, 334 So.2d 13 (Fla.1976); Bosem v. Bosem, 279 So.2d 863 (Fla.1973); Lee v. Lee, 309 So.2d 26 (Fla. 2d DCA 1975).

The so-called “no fault” divorce law enacted by the Florida Legislature in 1971, represents a significant, but not totally radical departure from the historic conception of alimony. Section 61.08, Florida Statutes (1975) provides as follows:

“(1) 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.
(2) In determining a proper award of alimony, the court may consider any factor necessary to do equity and justice between the parties.”

Under this statute, it is provided for the first time that a wife may be required to support her husband through alimony payments. This is in keeping with the current social trend toward establishing a more equitable relationship between the sexes. The First District Court of Appeal pointed out in Beard v. Beard, 262 So.2d 269 (Fla. 1st DCA 1972):

“In this era of women’s liberation movements and enlightened thinking, we have almost universally come to appreciate the fallacy of treating the feminine members of our society on anything but a basis of complete equality with the opposite sex. Any contrary view would be completely anachronistic. In this day and time, women are well educated and trained in the arts, sciences, and professions as are their male counterparts. The law properly protects them in their right to independently acquire, encumber, accumulate, and alienate property at will. They now occupy a position of equal partners in the family relationship resulting from marriage, and more often than not contribute a full measure to the economic well-being of the family unit.” Id. at 271 — 72.

The First District Court of Appeal further elaborated on this theme in Thigpen v. Thigpen, 277 So.2d 583 (Fla. 1st DCA 1973) as follows:

“The new concept of marriage relation implicit in the so-called ‘no fault’ divorce law enacted by the legislature in 1971 places both parties to the marriage on a basis of complete equality as partners sharing equal rights and obligations in the marriage relationship and sharing equal burdens in the event of dissolution.” Id. at 585.

Although this historic change in alimony law is far-reaching and we have not yet chartered its full effects, we can at least begin by stating that a husband’s entitlement to alimony must stand on the same criteria as that of a wife. Lefler v. Lefler, 264 So.2d 112 (Fla. 4th DCA 1972). To be entitled to alimony, the husband must show a financial ability by the wife to pay for such an award coupled with a demonstrated need of the husband for support, taking into consideration the standard of living shared by the parties to the marriage.

Although in most marriages, the husband remains the sole provider of the family, with the wife making the home and raising the children, if any, an increasing number of marriages do not fit this mold. In some marriages, both parties work and jointly support the family, although the degree of support by either party may vary. In others, the wife is the sole support of the family unit with the husband fulfilling some non-economic role. It is in these nontraditional type marriages where the question of alimony for the husband may arise.

In the instant case, we are faced with such a non-traditional type of marriage. Although neither party did any serious work to financially support the family unit, the wife, rather than the husband, was the sole provider in this marriage. The husband resigned his employment at the request of the wife to live a life of luxury with his wife and family. Such fabulous wealth on the part of a woman who supports a marriage in which the husband is of modest means is not unknown in our society, but it certainly presents a case of unusual dimensions which we think the trial judge handled most reasonably upon the marriage’s dissolution under the traditional criteria for awarding alimony.

B

As to the first criterion for awarding alimony, it is undisputed that the wife easily has the financial ability to pay for the alimony award in this case. She has a financial worth in excess of $4,000,000 and regularly maintains a checking account considerably greater than the total $120,000 alimony award for the husband. The award is therefore immune from attack as being beyond the financial means of the wife. See: Sisson v. Sisson, 336 So.2d 1129 (Fla.1976).

As to the second criterion for awarding alimony, the lump sum and rehabilitative alimony awards herein were commensurate with the need of the husband for temporary, although not permanent support, taking into consideration the standard of living shared by the parties to the marriage. The husband’s limited employment opportunities, his impaired mental condition, and the very high standard of living to which the wife accustomed the husband to live during the marriage, are all critical factors in sustaining the trial court’s exercise of discretion in fashioning the alimony award in this case.

The husband was a toy salesman for six years earning a modest salary which job he gave up at the request of the wife to devote full time to his life with the wife and family after a year and a half of marriage. Save for this limited service mainly as a figurehead in the businesses of his wife’s family, he has been out of the employment market for the last seven and a half years of the marriage. At the time of the final hearing, he was unemployed, living with friends at a drastically reduced life style, having unsuccessfully attempted on & number of occasions to obtain employment, since the wife barred him from the marital homes. This impairment in a spouse’s otherwise modest employment capacities caused in part by the supporting spouse’s insistence that such work be terminated in favor of the family is a significant factor in sustaining an alimony award. Brook v. Brook, 289 So.2d 766 (Fla. 3d DCA 1974).

Added to this, is the husband’s impaired mental condition. According to the uncon-tradicted testimony of an industrial psychologist, Dr. Marquit, the husband is suffering from a mental disorder which will require at least a year of intensive psychotherapy at considerable expense. He further testified that at present the husband is ill-suited for the employment market. We are in no position to second guess the trial judge’s acceptance of this testimony based on his personal evaluation of Dr. Marquit as well as that of the husband. Certainly it is not beyond the realm of reasonable inference for the trial judge to have concluded that the husband’s nine years of leisure class idleness followed by an abrupt end to his male Cinderella existence when the wife literally threw him out of her home, at least partially brought on his current mental problems for which some period of rehabilitation is necessary. Such mental impairment, although temporary rather than permanent in nature, is a significant factor in sustaining an alimony award. Baker v. Baker, 229 So.2d 276 (Fla. 3d DCA 1974).

The husband’s financial needs must also be measured in part by taking into consideration the extremely high standard of living to which the wife accustomed the husband through nine years of marriage. Firestone v. Firestone, 263 So.2d 223 (Fla.1972); Hausman v. Hausman, 330 So.2d 833 (Fla. 3d DCA 1976); Dash v. Dash, 284 So.2d 407 (Fla. 3d DCA 1973). The wife accustomed the husband to a life style which costs over $5,000 a month to maintain during a marriage which can hardly be described as a “marry in June and sue the following September” situation. Firestone v. Firestone, supra. In view of this fact, we cannot say that the limited eighteen month rehabilitative alimony plus lump sum alimony fashioned by the trial judge herein was an abuse of discretion. It was reasonably commensurate with the parties’ high life style without at the same time creating an unreasonable charge on the wife for the rest of her life.

The wife argues that she accustomed the husband to such a high life style based on money she received from her father. It is true that the wife supported the marriage at first through contributions from the wife’s father, but from 1972-1975 she supported the family unit entirely from her own separate estate. In our judgment, it is irrelevant how the wife lawfully acquired the money on which she supported the husband and family. The fact is she supported the family unit, not the husband. And despite the wife’s protests, a high standard of living remains a significant factor in setting an alimony award, which result is unchanged by the fact that the paying spouse acquired his or her wealth by gift or inheritance. See: Firestone v. Firestone, 263 So.2d 223 (Fla.1972).

Rehabilitative alimony has been awarded to supplement means already available in an amount reasonably required during the post-marriage period to maintain a spouse until he or she in the exercise of reasonable efforts and endeavors is in a position of self support. Cann v. Cann, 334 So.2d 325 (Fla. 1st DCA 1976). It necessarily presupposes the potential for self support which is presently impaired. Reback v. Reback, 296 So.2d 541 (Fla. 3d DCA 1974). Lump sum alimony has been awarded as a payment of a definite sum or property in the nature of a final property settlement which serves a reasonable purpose such as rehabilitation or where the marriage’s duration or the parties’ financial position would make such an award advantageous to both parties. Cann v. Cann, 334 So.2d 325 (Fla. 1st DCA 1976); Calligarich v. Calligarich, 256 So.2d 60 (Fla. 4th DCA 1971). The alimony awards herein fit these traditional patterns and purposes for alimony-

The wife argues that the husband’s $200,000 in assets acquired mainly by gift from the wife during the marriage, disqualifies the husband from receiving any alimony. We disagree. Although this is a significant factor in upholding the trial court’s refusal to make the alimony permanent, we cannot say that this compels the result urged by the wife, particularly in view of the husband’s demonstrated need for temporary, rehabilitative support. Except for the Sears stock, the husband’s assets are non-income producing. And it has been held that a spouse is not required to deplete capital assets in order to maintain a prior standard of living. Gordon v. Gordon, 204 So.2d 734 (Fla. 3d DCA 1967). Moreover, alimony awards have been upheld where the spouse seeking alimony possessed assets comparable to that of the husband in this case. Harrison v. Harrison, 314 So.2d 812 (Fla. 3d DCA 1975).

The wife throughout these proceedings has attacked the husband’s life style as parasitic and has warned that he should not be able to parlay such an existence into a $120,000 alimony award. The same criticism could be made of a good many wives who upon dissolution of a tragically flawed marriage have received alimony awards. We pass no judgment on the morality or social value of the marriage herein. Many Americans might very well regard the conduct of either party to this marriage with some cynicism. The work ethic is, after all, deeply ingrained in our mores. But we must take the marriage as we find it without passing judgment on the life style of either party. In a free society, there is room enough for many kinds of marriages, including this one. If and when such a marriage dissolves, it must be accorded equal treatment according to the standards for determining alimony set for all marriage dissolutions.

Moreover, the limited nature of the alimony awards herein should allay any fears that it will encourage any type of parasitic conduct. The husband has hardly been given a meal ticket for life; he has been given a temporary and limited assist to rehabilitate himself to a position of eventual self-support based on a demonstrated need. In this, we can find no abuse of discretion.

C

Turning now to the husband’s cross appeal, we are not persuaded that the husband’s demonstrated needs are so great that the trial court abused its discretion in refusing to make the alimony award permanent rather than rehabilitative and in refusing to award a greater lump sum alimony. As the wife accurately points out, the husband is a relatively young, well-educated man of 37, has excellent physical health although temporarily impaired mental health, has $200,000 in assets of his own, has some employment skills if only limited ones, and lives alone without custody of the parties’ two children. We can see no reason why he could not properly rehabilitate himself within eighteen months with the alimony awarded herein. See: Cann v. Cann, 334 So.2d 325 (Fla. 1st DCA 1976). In the event that substantial rehabilitation does not occur by the end of eighteen months despite the husband’s reasonable and diligent efforts, the husband can petition the court for modification of the alimony award. Section 61.14 Florida Statutes (1975); Lee v. Lee, 309 So.2d 26 (Fla. 2d DCA 1975).

II

The second question presented for review is whether it is an abuse of discretion in a dissolution of marriage action for a trial judge to set a $30,000 attorneys fee to be paid by the wife for the husband’s attorneys where: (1) the wife has a net worth of $4,250,000; (2) the husband has a net worth of $200,000; (3) the husband’s attorneys secure lump sum and rehabilitative alimony for the husband worth $120,-000; (4) the husband’s attorneys are eminent counsel who spent one hundred working hours plus twenty more hours of associate and law clerk time preparing for a unique, but not protracted or unduly complex litigation; and (5) the expert testimony puts a reasonable attorneys fee at $30,-000.

The wife contends that she should not be required to pay the fee and that in any event, the fee was excessive. We reject these contentions and hold that the award of attorneys fees was well within the discretion of the trial judge to set under the circumstances of this case.

Much the same considerations which govern our decision on the alimony issue control the issue on attorneys fees. There is a demonstrated need for financial assistance for the husband to hire competent counsel which is not precluded by his possession of non-liquid, non-income producing assets. Bencomo v. Bencomo, 195 So.2d 874 (Fla. 3d DCA 1967); Wilkerson v. Wilkerson, 179 So.2d 592 (Fla. 2d DCA 1965); Arrington v. Arrington, 150 So.2d 473 (Fla. 3d DCA 1963); Turney v. Turney, 149 So.2d 83 (Fla. 3d DCA 1963). The wife unquestionably has the financial ability to pay for the fee.

The attorneys for the husband spent one hundred working hours preparing the case herein plus twenty more hours of associate and law clerk time. The case was a unique, but not protracted or unduly complex litigation. Expert testimony placed a reasonable attorneys fees at $30,000. The attorneys have been successful in securing an alimony award for the husband which is a singular accomplishment in the amount of $120,000. The husband’s attorneys are also eminent counsel in the community.

The wife complains that the fee is excessive in view of the number of hours spent preparing the case. The law is well-settled, however, that attorneys fees should be awarded based in large measure on the quality of services rendered and not necessarily on the quantity of service. Hall v. Hall, 200 So.2d 544 (Fla. 3d DCA 1967). The elements usually considered in determining the amount of attorneys fees are: services rendered, responsibility incurred, the nature of the services, the skill required, the circumstances under which it was rendered, the ability of the litigant to respond, the value of the services to the client, and the beneficial results, if any, of the services. Provus v. Provus, 44 So.2d 656 (Fla.1950). Measured by these standards, it is clear that the trial judge was well within his discretion in awarding attorneys fees for the husband in the amount of $30,000. Donner v. Donner, 281 So.2d 399 (Fla. 3d DCA 1973).

We have considered the other contentions made by the parties and find them unpersuasive. The judgment below in all respects is therefore affirmed.

Affirmed.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Kenneth RICHARDSON, Appellant, v. The STATE of Florida, Appellee.
    No. 76-637.
    District Court of Appeal of Florida, Third District.
    April 26, 1977.
    Rehearing Denied May 25, 1977.
    Bennett H. Brummer, Public Defender and Paul Morris, Asst. Public Defender and Jeffrey Samek, Legal Intern, for appellant.
    Robert L. Shevin, Atty. Gen., and Joel D. Rosenblatt, Asst. Atty. Gen., for appellee.
    Before PEARSON and BARKDULL, JJ., and CHARLES CARROLL (Ret.), Associate Judge.
   PER CURIAM.

This appeal is by the defendant from a judgment finding him guilty of buying, receiving or concealing stolen property pursuant to Section 811.16, Florida Statutes (1973). The judgment was entered upon a jury verdict.

On this appeal, the principal contention is that the trial judge erred in giving an instruction on the degree of proof necessary for knowledge that the property was, in fact, stolen property. Appellant urges that an instruction given by the court allowed an element of the crime to be proved by evidence less than that allowed for conviction. A fair reading of the instruction convinces us that the court did not instruct, as appellant suggests, that it was not necessary to prove beyond a reasonable doubt that the defendant knew the property to be stolen. What the court did instruct is that the necessary ingredient of the offense of receiving stolen property, knowing it to have been stolen, is knowledge on the receiver’s part at the time that he receives the thing stolen that the property is stolen, or of such fact as would put a person of ordinary intelligence and caution on inquiry. Hayward v. State, 152 Fla. 608, 12 So.2d 458 (1943); Seymour v. State, 246 So.2d 155 (Fla. 3d DCA 1971). The appellant conceived that the instruction was not worded properly, it was necessary for him to object to the instruction. See Dorminey v. State, 314 So.2d 134 (Fla.1975). This was not done in this case.

Appellant’s point directed to the sufficiency of the evidence is not supported by the record and, therefore, does not present error.

The point claiming error in the form of the verdict was not preserved for appeal because the defendant not only failed to object to the form of the verdict but also actually agreed to its submission. See McPhee v. State, 254 So.2d 406 (Fla. 1st DCA 1971).

The remaining points claim error upon the examination of the defendant as to prior convictions and evidence of the circumstances surrounding the theft of the property. We conclude that the facts were relevant and properly admitted.

Affirmed.

      . The revision of this statute appears at Section 812.031, Florida Statutes (1976 Supp.).


author: BARKDULL, Judge.

text:
    Ofelia TORRES, Appellant, v. ALLSTATE INSURANCE COMPANY and Felix M. Torres, Appellee.
    No. 76-836.
    District Court of Appeal of Florida, Third District.
    April 26, 1977.
    Rehearing Denied May 25, 1977.
    West, Friesner, Goldman & Major, Miami, for appellant.
    Richard Yale Feder, Miami, for appellee.
    Before PEARSON and BARKDULL, JJ., and CHARLES CARROLL (Ret.), Associate Judge.
   BARKDULL, Judge.

Ofelia Torres, plaintiff in the trial court, appeals an adverse summary final judgment.

On January 8, 1975, the defendant (Felix Torres), while operating a motor vehicle owned by his father and in which his mother, Ofelia Torres, was a passenger, was involved in an accident. At the time of the accident, Felix Torres was seventeen years of age. On March 28, 1975, suit was instituted by Ofelia Torres against Felix Torres and Allstate Insurance Company. At the time the suit was filed, Felix Torres was eighteen years of age. Defendants filed an answer raising as an affirmative defense that the action was barred, since at the time of the accident the defendant (Felix Torres) was an unemancipated minor child of the plaintiff. The defendants filed a motion for judgment on the pleadings or for summary judgment. The trial court entered a final summary judgment after all parties stipulated there were no issues of fact. The court found, as a matter of law, that a mother cannot sue her child, after the child reaches the age of eighteen years, for alleged negligence in the operation of a motor vehicle owned by the father at a time when the child is unemancipated and under the age of eighteen years.

We affirm. A parent cannot file suit after a child attains majority for a tort committed by the child during the child’s minority. See: Bencomo v. Bencomo, 200 So.2d 171 (Fla.1967); Rickard v. Rickard, 203 So.2d 7 (Fla. 2nd D.C.A. 1967); Orefice v. Albert, 237 So.2d 142 (Fla.1970); Webb v. Allstate Insurance Company, 258 So.2d 840 (Fla. 3rd D.C.A. 1972); Mieure v. Moore, 330 So.2d 546 (Fla. 1st D.C.A. 1976).

Affirmed.


text:
    Donald J. PALLADENO, Appellant, v. Clara OESTERLE, Candidate et al., Appellees.
    No. 77-353.
    District Court of Appeal of Florida, Third District.
    April 26, 1977.

      Richard F. Hayes, Coral Gables, for appellant.
    Canner & Chait, Miami, Stuart L. Simon, County Atty., and Alan J. Kan, Asst. County Atty., for appellees.
    Before PEARSON, HAVERFIELD and HUBBART, JJ.
   HUBBART, Judge.

This is an action challenging the method by which members of the Board of County Commissioners of Dade County were recently elected. The trial court granted the motion to dismiss the cause with prejudice and the plaintiff appealed. The defendants move to dismiss the appeal as untimely.

The issue presented for review is whether an appeal is timely filed where: (1) the order appealed from dismissing a complaint with prejudice was signed on December 21, 1976, and recorded on December 22, 1976; (2) a motion for rehearing on the order appealed from was filed with the court and mailed to the opposing party on January 3, 1977, but was not received by counsel for the opposing party until January 4, 1977; and (3) the notice of appeal was filed within thirty (30) days from the denial of the motion for rehearing. We hold that under these circumstances the appeal was timely filed and deny the motion to dismiss the appeal.

The plaintiff, Donald J. Palladeno, is an unsuccessful candidate for the Board of County Commissioners of Dade County in a recent county-wide election. He filed this action against his opponent and successful candidate, Clara Oesterle, along with the members ^of the Dade County Canvassing Board, challenging the method by which candidates in said election were elected.

December 21, 1976, the trial court signed an order dismissing the complaint with prejudice, which order was recorded by the clerk the next day on December 22, 1976. On January 3, 1977, the plaintiff filed with the clerk and mailed to the defendants a motion for rehearing on the order dismissing the complaint with prejudice, which motion was actually received by defense counsel the next day on January 4, 1977.

On January 18, 1977, the trial court denied the plaintiff’s motion for rehearing. On February 14, 1977, the plaintiff filed his notice of appeal from the order recorded December 22, 1976. The defendants move to dismiss the appeal as untimely.

Fla.App. Rule 3.2(b) provides that an appeal must be taken within thirty (30) days from the “rendition” of the final order appealed from. Fla.App. Rule 1.3 defines “rendition” of an order and further provides:

“Where there has been filed in the lower court a timely and proper motion or petition for a new trial, for a rehearing, or other timely post-trial motion or petition permitted by the Rules, the decision, judgment, order, or decree shall not be deemed rendered until such motion or petition is disposed of.”

In the instant case, the plaintiff filed a motion for rehearing on an order dismissing his complaint with prejudice, which is a proper motion under Fla.R.Civ.P. 1.530 directed to an otherwise final appeala-ble judgment. Snyder v. Gulf American Corp., 224 So.2d 405 (Fla.2d DCA 1969). This motion, if properly and timely served on the adverse party, stayed the rendition of the order dismissing the complaint with prejudice herein until the motion was denied. Behm v. Division of Administration, 288 So.2d 476 (Fla.1974); Snyder v. Gulf American Corp., supra.

Fla.R.Civ.P. 1.530(b) provides that a motion for rehearing “shall be served not later than ten (10) days after the rendition of a verdict in a jury action or the entry of judgment in a non-jury action.” Service of such motion is complete upon mailing. Fla. R.Civ.P. 1.080(b). An order dismissing a complaint with prejudice is entered in a non-jury action when it has been recorded by the clerk. Investment Corp. of South Florida v. Florida Thoroughbred Breeders Association, 256 So.2d 227 (Fla.3d DCA 1972).

Since the order dismissing the plaintiff’s complaint with prejudice was recorded on December 22, 1976, the plaintiff ordinarily had until January 1, 1977, to serve and file his motion for rehearing on said order. January 1, 1977, however fell on a Saturday, which extended the time for service of filing of said motion until the next business day, Monday, January 3, 1977. Fla.R.Civ.P. 1.090(a). On that day, the plaintiff timely filed with the clerk and timely served by mailing to the defendants the motion for rehearing. The fact that defense counsel did not actually receive the pleading until the next day does not change this result.

The final order appealed from was therefore not rendered until January 18, 1977, when the trial court denied the motion for rehearing. And the appeal herein was timely filed when the plaintiff filed his notice of appeal within thirty (30) days after the denial of the motion for rehearing.

For the above reasons, the motion to dismiss the instant appeal is denied.


author: McCORD, Judge.

text:
    The DEPARTMENT OF REVENUE of the State of Florida, Appellant, v. William B. MESMER, as Trustee, and William H. Robbinson, as Trustee, Appellees.
    No. DD-218.
    District Court of Appeal of Florida, First District.
    April 29, 1977.
    Rehearing Denied May 23, 1977.

      Robert L. Shevin, Atty. Gen., Harold F. X. Purnell, David K. Miller, Asst. Attys. Gen., for appellant.
    G. Thomas Ball, Mesmer, Robbinson & Ball, Orlando, for appellees.
   McCORD, Judge.

Appellant, Department of Revenue, appeals from a summary final judgment entered in favor of appellees, William B. Mesmer and William H. Robbinson. The suit is one for declaratory judgment brought by appellees against appellant, appellees contending that appellant wrongfully assessed documentary stamp taxes, surtaxes and penalties against them.

Appellees were trustees of a private profit-making investment trust, the settlors of which were also the beneficiaries. As trustees, appellees entered into a contract for sale and purchase of real property owned by Lottie May Fannin. The consideration agreed upon in the contract for the transfer of the property was $1.3 million. Prior to closing the sale, appellees sold their rights in the property (the contract) by a document entitled “Assignment” to Indico Corporation for $1.85 million. Indico then subsequently closed the sale with Fannin paying the contract price of $1.3 million and receiving legal title to the property. Indi-co’s cost of acquiring the property therefore totaled $3.15 million.

Documentary stamp taxes and surtaxes were paid upon the transaction in an amount which reflects only the $1.3 million paid to Fannin by Indico for the legal title under the contract. Appellant contends that the amount of tax due should have reflected the entire $3.15 million which In-dico paid for the property; that taxes and surtaxes were due upon not only the $1.3 million paid to Fannin but also upon the $1.85 million paid to appellees for equitable title under the assignment. The trial court, by its summary final judgment, ruled that the doctrine of equitable conversion is a fiction created by courts of equity to do justice between parties in particular circumstances, and the assignment does not constitute a taxable transaction under §§ 201.02 or 201.021, Florida Statutes. We disagree and reverse.

§ 201.02, Fla.Stat. (1975), provides in pertinent part as follows:

“Tax on deeds and other instruments relating to lands, etc.-—
(1) On deeds, instruments, or writings whereby any lands, tenements, or other realty, or any interest therein, shall be granted, assigned, transferred, or otherwise conveyed to, or vested in, the purchaser, or any other person by his direction, on each $100 of the consideration therefor the tax shall be 30 cents. When the full amount of the consideration for the execution, assignment, transfer, or conveyance is not shown in the face of such deed, instrument, document, or writing, the tax shall be at the rate of 30 cents for each $100 or fractional part thereof of the consideration therefor.
(2) * * *
(3) * * * ” (Emphasis supplied.)

§ 201.021 imposes a surtax on the documents covered by § 201.02.

It is clear under the foregoing statute that if the assignment of the contract for sale from appellees to Indico Corporation was an assignment of any interest in lands, it requires payment of the documentary tax and surtax. Although legal title remained in Fannin under the contract, equitable title was vested in appellees. Upon appellees’ assignment of the contract to Indico, the equitable title immediately vested in Indico, though the legal title continued in Fannin until the contract was performed by Fan-nin’s conveyance to Indico which merged both the legal and equitable titles in Indico.

While originally created as a legal fiction, the doctrine of equitable conversion has be,come thoroughly engrained and embedded in Florida real estate law. It is now a fact to be reckoned with in dealing with transfers of real property. See Arko Enterprises, Inc. v. Wood, 185 So.2d 734 (Fla. 1 DCA 1966); H & L Land Co., Inc. v. Warner, 258 So.2d 293 (Fla. 2 DCA 1972); and In Re Estate of Sweet, 254 So.2d 562 (Fla. 2 DCA 1971). The Supreme Court in Hull v. Maryland Casualty Co., 79 So.2d 517 (Fla.1954), said:

“By ordinary common-law principles, the doctrine of equitable conversion becomes operative upon entry of an agreement to convey title to realty. The vendee immediately becomes the beneficial owner, and the vendor retains only naked legal title as security for payment of the purchase price. Michaels v. Albert Pick & Co., 158 Fla. 877, 30 So.2d 498.”

Appellees held equitable title under the contract for sale and purchase. They were obligated to pay $1.3 million to seller Fan-nin and entitled to receive legal title at closing. Prior to closing, appellees, by the assignment, conveyed their rights and obligations to Indico thereby enabling Indico to close with Fannin for a total purchase price to Indico of $3.15 million — $1.85 million of which was paid to appellees for equitable title and $1.3 million of which was paid to Fannin for the legal title. The vehicle for the transfer of equitable title was the assignment. Under it appellees assigned and transferred to Indico an interest in land within the contemplation of the foregoing statute — the equitable title. Documentary stamps reflecting the price of this transfer should have been affixed to the assignment, or in the alternative, to the deed at recordation. The surtax required by § 201.021, Fla.Stat. (1975), should likewise have been paid.

Reversed and remanded.

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


text:
    STATE ex rel. Mary Louise MULLINS, Relator, v. The Honorable William T. SWIGERT, as Judge of the Circuit Court of the Fifth Judicial Circuit, In And For Marion County, Florida, Respondent.
    No. FF-13.
    District Court of Appeal of Florida, First District.
    April 29, 1977.
    Rehearing Denied May 23, 1977.

      John B. Fuller, of Savage, Krim, Simmons & Fuller, Ocala, for relator.
    Robert L. Shevin, Atty. Gen., and Richard W. Prospect, Asst. Atty. Gen., for respondent.
   PER CURIAM.

Relator filed in this court a suggestion for writ of prohibition in which she contends she cannot be tried on a five count information since her right to speedy trial has been violated. We issued the rule and a return was filed. On July 9, 1976, petitioner was arrested on 17 charges of grand larceny. An information was filed December 29, 1976, 173 days after her arrest, charging her with conspiracy to commit grand larceny, conspiracy to utter a forged instrument, conspiracy to commit forgery, receiving and concealing stolen property and uttering a forged instrument. Arraignment was scheduled for January 3, 1977 and trial was originally set for January 6, 1977. An amended notice of trial was filed resetting the case for January 4, 1977, the 179th day following her arrest. On that day, a hearing was held on petitioner’s motion for protective order, or in the alternative, motion for continuance of trial without prejudice to her right to speedy trial. At the conclusion of the hearing the motion was denied and the court, of its own motion, continued the case for trial for a period of 90 days from January 4, 1977, holding that the case was so unusual and so complex due to the number of defendants and the nature of the prosecution or otherwise, that it was unreasonable to expect adequate investigation or preparation within the period of time established by the rule. On January 6, 1977, 181 days after her arrest, relator filed her motion for discharge, pursuant to Fla.R.Crim.P. 3.191. The motion was denied.

We are of the view that the state failed to make a sufficient showing, pursuant to Fla.R.Crim.P. 3.191(f)(ii), that the case was so unusual or complex as to justify the court’s order continuing the case for trial beyond 180 days. See State ex rel Boren v. Sepe, 256 So.2d 259 (Fla.3rd DCA 1972), cert. denied, Fla., 271 So.2d 116. Nevertheless, the court’s order of continuance, although erroneous, having been made within the time prescribed by the rule, was within the court’s jurisdiction.

The prayer of the suggestion for writ of prohibition is denied and the rule nisi is discharged.

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


author: PER CURIAM. BOYER, Chief Judge,

text:
    PITTSBURGH NATIONAL BANK et al., Appellants, v. Reid B. HUGHES, Appellee.
    No. CC-300.
    District Court of Appeal of Florida, First District.
    May 2, 1977.
    Rehearing Denied May 25, 1977.
    R. K. Roberson, DeLand, for appellants.
    John F. Hughes, Jr., Daytona Beach, for appellee.
   PER CURIAM.

Upon considering the briefs, the record and oral argument, we find no reversible error.

Accordingly, the judgment is affirmed. Upon payment of the judgment dated 18 February 1976, appellee shall not only satisfy this judgment but shall also satisfy that judgment dated 27 March 1973 which was subsequently assigned by Ormond Beach First National Bank to appellee.

MILLS, J., and JOPLING, WALLACE M., Associate Judge, concur.

BOYER, C. J., dissents.

BOYER, Chief Judge,

dissenting.

I would reverse. Two separate and distinct judgments have been rendered against the same parties on the same debt. Notwithstanding any recitation by this Court in its opinion to the contrary, in the event either of said judgments have been assigned to a person not a party to this suit there is nothing that we can say in this suit which will assure that the payment of one judgment satisfies the other.


author: RAWLS, Acting Chief Judge. ERVIN, Judge,

text:
    Clarence N. BEHN, Appellant, v. Mae Ola TIMMONS, Appellee.
    No. DD-423.
    District Court of Appeal of Florida, First District.
    May 3, 1977.
    Seymour H. Rowland, Jr., Ocala, for appellant.
    Ben Daniel, Jr., Ocala, and John P. Thurman, Dunnellon, for appellee.
   RAWLS, Acting Chief Judge.

Appellant-natural father appeals an order granting custody of his two minor children to the maternal grandmother subject to his reasonable right of visitation.

Two children (girls) were born of the marriage between Clarence N. Behn (appellant-father) and Barbara N. Behn (mother). The parties were divorced with custody being awarded to the mother. Subsequently, the mother died. During her last illness, the mother delivered the children to the father who had them in his custody until shortly prior to the mother’s death, at which time the maternal grandmother arranged for another of her daughters to remove the children from the father’s home to the home of the maternal grandmother. After the death of the mother, appellant filed a petition for writ of habeas corpus which, after lengthy hearings, the trial court entered the instant order appealed.

This record wholly fails to disclose that the polestar test of “best interest of the children” warrants the drastic remedy of depriving the natural father of his natural right to rear his children in his home. The trial court did not in any respect find the father to be unfit, although it did find that “the children need a younger mother figure”.

Busbee v. Weeks, 80 Fla. 323, 85 So. 653 (1920), is on point. There, the father of a newly born female child, whose mother died in bearing the child, permitted the maternal grandparents to take his child into their home. When the child reached the age of four years, the father, by petition for writ of habeas corpus, sought custody of his child. The trial court in Busbee awarded custody to the Maternal grandparents with visitation privileges to the father. In reversing, Justice Whitfield, speaking for the Supreme Court, stated:

“At common law the father has the paramount right to the custody and control of his legitimate minor children, subject only to lawful regulations for the benefit of the children. Porter v. Porter, 60 Fla. 407, 53 So. 546, Ann.Cas.1912C, 867; Hernandez v. Thomas, 50 Fla. 522, 39 So. 641, 2 L.R.A., N.S., 203, 111 Am.St.Rep. 137, 7 Ann.Cas. 446; Miller v. Miller, 38 Fla. 227, 20 So. 989, 56 Am.St.Rep. 166.
“In this case the legal rights of the father not having been relinquished or forfeited, and his ability to take proper care of the child appearing, the custody should be awarded to him on the showing made.”

In Busbee, the father lived with his parents and three other children. Here, the father’s parents live with him and two other children. The home conditions of the maternal grandmother and her husband in which other children and grandchildren are present are very similar to the home conditions of the father.

We cannot and should not lose sight of the basic proposition that a parent has a natural God-given legal right to enjoy the custody, fellowship and companionship of his offspring. This is a rule older than the common law itself. State ex rel. Sparks v. Reeves, 97 So.2d 18 (Fla. 1957). And, except in cases of clear, convincing and compelling reasons to the contrary, a child’s welfare is presumed to be best served by care and custody by the natural parent. In Re Vermeulen’s Petition, 114 So.2d 192 (Fla. 1st DCA 1959).

The order appealed is reversed with directions that the trial court award custody of the two minor children to their natural father.

SMITH, J., concurs.

ERVIN, J., dissents.

ERVIN, Judge,

dissenting.

The right of a father to rear his children in his home must be balanced by this court by two other important considerations. The first is the reluctance of an appellate court to reverse a chancellor who has had an opportunity to observe the witnesses and has used his best judgment to do equity between the parties. Justice v. Van Eepoel, 132 So.2d 407, 409 (Fla. 1961):

“Our own personal reactions at the appellate level are not the standards by which our judgment must be guided. The rule is that unless we can conclude from our study of the record that the chancellor has acted arbitrarily or has in any fashion abused his discretion in making provision for the custody of minor children, we are bound by the presumed correctness of his judgment.”

Secondly, the welfare of the children is still of paramount - importance. E.g., Green v. Green, 137 Fla. 359, 188 So. 355 (1939); Mehaffey v. Mehaffey, 143 Fla. 157, 196 So. 416 (1940); Pacheco v. Pacheco, 246 So.2d 778 (Fla. 1971). The able trial judge’s concern here is the fact that the father has a trucking operation and cuts and bales hay during the season. From May until October he may work seven days a week. The children would be left in the care of the father’s parents, a 60-year old grandmother and an 85-year old grandfather, both of whom are not in the best of health. The maternal grandmother, on the other hand, is 46 and her husband is 61. The investigating social worker testified their home appeared larger (though with the same number of rooms), more attractive and cleaner. As to the behavior of the children during her visit, the investigator testified:

“A. They were sitting on the couch next to Mrs. Timmons and they were both clean and very neatly dressed. They — the little one snuggled up to Mrs. Timmons and fell asleep on her lap while we were sitting there talking, and the older one was — appeared to be very happy and content and she went over and acted like she may have been a little jealous of the other one and tried to hug Mrs. Timmons, too.
Q. Were they unruly or rude?
A. No, they were very polite and well behaved.”

Under similar circumstances, the Florida Supreme Court directed the chancellor to award custody of the divorced parties’ minor child to the maternal grandmother in Pittman v. Pittman, 153 Fla. 434, 14 So.2d 671 (1943). Observe the following colorful language by Justice Terrell:

“Now if the interest of the child is the first consideration in awarding its custody, as between a stranger, though a very respectable lady, and the grandmother, who is equally as respectable and has shown her devotion to it, the question of what is the best interest of the child would not seem difficult to answer. The prospect of growing up in a modest farm home tutored by a law-abiding, intelligent, religious guardian is one of the greatest opportunities that ever fell athwart the path of a five year old boy. Its potentialities far surpass those of living in a boarding house even though it be operated by Emily Post next door to Utopia.” 14 So.2d at 671.

The order denying the petition of the father was not final. It allowed him six months from September 24, 1976, to refile or renew his petition. The six month period has expired and it seems proper to allow the chancellor to reconsider the situation. Should there be a change in circumstances and the father able to spend the time with the children that they require, or if should someone in his home be able to care for them, then permanent custody could be given to the father. I would affirm.

      . Cf. The following cases hold that a grandparent, whose child is deceased, is not entitled to be awarded visitation rights with a grandchild: Parker v. Gates, 89 Fla. 76, 103 So. 126 (1925); Lee v. Kepler, 197 So.2d 570 (Fla. 3rd DCA 1967); Rodriguez v. Rodriguez, 295 So.2d 328 (Fla. 3rd DCA 1974); Sheehy v. Sheehy, 325 So.2d 12 (Fla. 2nd DCA 1975); and Roberts v. Davis, 328 So.2d 879 (Fla. 2nd DCA 1976). Although the author of this opinion is not in accord with the foregoing principle of law expressed, it is logical that if a grandparent is not entitled to be awarded the right of visitation, such grandparent certainly is not entitled to be awarded custody where the trial court does not find the surviving natural parent to be unfit to have custody.


text:
    Gerald A. LEWIS, as State Comptroller and Head of the Department of Banking and Finance, Petitioner, v. CITIZENS FIRST BANK OF OCALA (a proposed bank), Respondent.
    No. EE-395.
    District Court of Appeal of Florida, First District.
    May 3, 1977.
    Rehearing Denied May 24, 1977.

      William B. Corbett, Jr., and Richard E. Gentry, Tallahassee, for petitioner.
    C. Gary Williams, Ausley, McMullen, McGehee, Carothers & Proctor, Tallahassee, ■and Randolph Tucker, Tucker, Hicks, Blanchard, Brannen, Dirían & Stillwell, In-verness, for respondent.
   PER CURIAM.

The prayer of the interlocutory petition for review is denied without prejudice for consideration by the hearing officer of a motion pursuant to Fla.R.Civ.P, 1.280(c) for protection under the same conditions as set forth in our prior opinion of Lewis v. Life Savings and Loan Association, 342 So.2d 1031 (Fla. 1st DCA 1977).

BOYER, C. J., and MILLS and ERVIN, JJ., concur.'


text:
    Ellen DEMASO, Appellant, v. James Frederick DEMASO, Appellee.
    No. 76-690.
    District Court of Appeal of Florida, Third District.
    May 3, 1977.
    Preddy, Haddad, Kutner & Hardy and Glenn P. Falk, Miami, for appellant.
    Norman A. Share and Thomas A. Tilson, Homestead, for appellee.
    Before BARKDULL, HAVERFIELD and HUBBART, JJ.
   PER CURIAM.

Petitioner, Ellen Demaso, appeals that provision of a dissolution of marriage judgment awarding custody of the parties’ eight year old son, Anthony, to the father, James Demaso.

Ellen contends the trial judge erred in awarding custody of Anthony to his father because there was no finding that she is unfit and all factors being equal, the mother of infants of tender years should receive prime consideration for custody. See Anderson v. Anderson, 309 So.2d 1 (Fla.1975).

It is the duty of the trial judge in a child custody proceeding to determine what is in the best interest of the child and absent a showing of an abuse of discretion (which requires a lack of substantial evidence to sustain the judge’s determination), an appellate court will not disturb the custody award. Ross v. Ross, 321 So.2d 443 (Fla.3d DCA 1975) and cases cited therein. There was substantial competent evidence presented in this case to support the award of custody to the father and we find no abuse of discretion.

On cross-appeal James Demaso urges as error the award of an attorney’s fee to Ellen based solely on two affidavits without any prior notice of hearing or any hearing conducted thereon. We find this point well taken and reverse the attorney’s fee award.

No hearing was held or testimony adduced on the issue of attorney’s fees, thereby precluding James his right to contest Ellen’s claim to such fees. See Thoni v. Thoni, 179 So.2d 420 (Fla.3d DCA 1965); Goldblatt v. Goldblatt, 277 So.2d 34 (Fla.3d DCA 1973); Reek v. Reek, 303 So.2d 677 (Fla.4th DCA 1974). The cause is remanded to the trial court for the taking of testimony on the issue of attorney’s fees.

Affirmed in part, reversed in part.


text:
    DIVERSIFIED MORTGAGE INVESTORS, a Massachusetts Business Trust, Appellant, v. Arthur D. BENJAMIN d/b/a Sage Corporation, and Sage Corporation, et al., Appellees.
    No. 76-720.
    District Court of Appeal of Florida, Third District.
    May 3, 1977.
    Feldman & Eden, Key West, George N. Jahn, Miami, Richard H. W. Maloy, Coral Gables, for appellant.
    Spencer D. Stolpen, Hollywood, for appel-lee.
    Before BARKDULL, HAVERFIELD and HUBBART, JJ.
   BARKDULL, Judge.

This appeal questions the correctness of a chancellor’s finding that the appellee had validly perfected and enforced a statutory mechanic’s lien. Prior to rendering the final order of foreclosure, the trial court made certain findings of fact, among which are the following:

On August 26, 1971, Little Duck Key Limited Partnership, a Florida limited partnership, leased from plaintiff, Diversified Mortgage Investors, a Massachusetts business trust, certain property in Monroe County, Florida. On the same date, the plaintiff and the lessee executed a mortgage encumbering said lease. The lessor [Diversified] was the mortgagee and the lessee [Little Duck Key Limited] was the mortgagor. The mortgage was recorded in the public records of Monroe County, Florida, on September 10, 1971. As of May 6, 1975, the principal balance due on the promissory note secured by the mortgage was $1,289,226.55, together with accrued interest in the sum of $384,937.47.

The trial court found that the appellee, Arthur D. Benjamin d/b/a Sage Corporation, recorded a claim of lien against the subject real property on August 30, 1971 in Monroe County, Florida. The trial court found that the claim of lien constituted a valid statutory mechanic’s lien, which was recorded prior to the recordation of the plaintiff’s mortgage and hence was superior thereto. The court further found that the appellee had properly commenced an action for the enforcement of same, in accordance with the requirements of §§ 713.21 and 713.22, Florida Statutes (1971), by the institution of its complaint to foreclose lien against the lessee’s interest [recorded fee simple owner, Diversified Mortgage Investors, was not named as a party-defendant] and that, therefore, appellee had properly perfected its lien. The trial court found that the appellee’s lien was superior to the appellant’s lien and that the appellant’s lien was superior to all other liens. We disagree.

Sections 713.21 and 713.22 (1971), Florida Statutes, provide that a mechanic’s lien must be enforced within the period of one year from filing. The exact language of the statute speaks in terms of “discharge” of the lien. Section 713.21, Florida Statutes (1971) provides that a lien properly perfected under Chapter 713 “may be discharged * * * by failure to begin an action to enforce the lien within the time prescribed in Part I of this Chapter”. Section 713.-22(1), Florida Statutes (1971) provides that “no lien provided by Part I of this Chapter shall continue for a longer period than one year after the claim of lien has been recorded, unless within that time an action to enforce the lien is commenced in a court of competent jurisdiction.”

The key words are: “action is commenced”. Was the action to enforce the lien of Arthur D. Benjamin d/b/a Sage Corporation and Sage Corporation commenced within one year of the filing of the lien? We believe not. No action was taken against Diversified within one year. The recent case of Horace Mann Insurance Company v. DeMirza, 312 So.2d 501 (Fla. 3rd D.C.A. 1975), decided by this court, is pertinent to this issue. In this case, the defendant attempted to assert a claim by counterclaim at a time after the statute of limitations had run on the cause of action upon which the counterclaim was based. This court ruled that the counterclaim was barred by the statute of limitations.

The appellee cannot successfully contend that its action was commenced by the filing of the appellant’s complaint. It is the filing of the counterclaim which commences appellee’s action, not the filing of the complaint. If such was not the rule, the ruling in Horace Mann Insurance Company v. DeMirza, supra, would have been different, for there the complaint was filed two days prior to the running of the statute. Here the complaint was filed two days after the running of the applicable statute.

Even where a party has once filed a complaint against a proper party within the period designated by the mechanic’s lien statute’s limitations period and subsequently drops that party as a defendant, he cannot re-add that person as a party-defendant after the statute of limitations has run. See: Harris Paint Company v. Multicon Properties, Inc., 326 So.2d 43 (Fla. 1st D.C.A. 1976). Such being the case, even less reason exists in this case for permitting the initial proper affirmative action to commence after the statute had run.

The one year statute has no exceptions. Even where the lien is transferred to a bond, the action must be commenced within the one year period. See: General Guaranty Insurance Company v. Sunrise Nursing Homes, Inc., 326 So.2d 446 (Fla. 2nd D.C.A. 1976).

No action having been taken within one year of recording a lien to perfect it against record fee holder, the lien was discharged per Section 713.22(1), Florida Statutes (1971). Therefore, the trial judge was in error in finding that the lien was superior to Diversified Mortgage Investors, and so much of the final judgment that held Arthur D. Benjamin d/b/a Sage Corporation and Sage Corporation to have held a valid lien is reversed. Bowery v. Babbit, 99 Fla. 1151, 128 So. 801; Hughey v. Stevmier, 190 So.2d 410 (Fla. 2nd D.C.A. 1966); General Guaranty Insurance Company v. Sunrise Nursing Homes, Inc., supra; Section 713.-22(1), Florida Statutes (1971).

Reversed and remanded for further proceedings, in accordance with the above.

      . The property owner is a necessary party at time of suit to foreclose a mechanic’s lien. Deltona Corporation v. Indian Palms, Inc., 323 So.2d 282 (Fla. 1st D.C.A. 1975); McGuire v. Consolidated Electrical Supply, Inc., 329 So.2d 411 (Fla. 4th D.C.A. 1976); 54 Am.Jur.2d, Mechanics’ Liens, § 363.


text:
    A. W., a juvenile, Appellant, v. The STATE of Florida, Appellee.
    No. 76-847.
    District Court of Appeal of Florida, Third District.
    May 3, 1977.
    Bennett H. Brummer, Public Defender and Karen M. Gottlieb, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen. and Linda Collins Hertz, Asst. Atty. Gen., for appellee.
    Before HENDRY, C. J., PEARSON, J., and CHARLES CARROLL (Ret.), Associate Judge.
   PER CURIAM.

Affirmed on authority of R. D. C. v. State, 332 So.2d 134 (Fla.3d DCA 1976); State v. D. H., 340 So.2d 1163 (Fla.1976).


text:
    Hilda ORR, Appellant, v. JOHN COUTURE, INC., a dissolved Florida Corporation, et al., Appellees.
    No. 76-853.
    District Court of Appeal of Florida, Third District.
    May 3, 1977.

      William John Mason, Miami, for appellant.
    Norman A. Sand, Miami, for appellees.
    Before PEARSON and BARKDULL, JJ., and CHARLES CARROLL (Ret.), Associate Judge.
   CHARLES CARROLL (Ret.), Associate Judge.

This appeal is by the plaintiff below from an order dismissing with prejudice her complaint filed against John Couture, Inc., a dissolved Florida corporation, and its last known directors as trustees thereof, including John Couture, her former husband. By her action plaintiff sought to establish a one-half equitable interest in the assets of the dissolved defendant corporation and in the accrued profits thereof, predicating her claim on having equally with her former husband supplied the consideration by which the corporate property was acquired and having equally with him conducted the business of the' corporation.

In their prior dissolution of marriage action, in which the corporation was not a party, the wife had sought to establish such equitable ownership in the corporation. In that action the trial court held the wife had no interest in the corporate property, and that she had no interest in the corporate stock. On her appeal therefrom this court modified and amended the marriage dissolution judgment by striking therefrom the paragraphs so holding. With reference thereto this court stated: “We find that these issues were not properly presented to the trial judge as the corporation was not a party to the litigation”. See Couture v. Couture, 307 So.2d 194 (Fla.3d DCA 1975).

The ground upon which the complaint in the instant case was dismissed with prejudice, as stated in the order, was: “The court finds that the claims set forth in plaintiff’s complaint were presented to this court and/or should have been presented to this court in plaintiff’s original dissolution of marriage action”. That finding was not in accordance with our finding on the matter on the appeal from the dissolution judgment.

In Finston v. Finston, 160 Fla. 935, 37 So.2d 423 (Fla.1948), the Supreme Court said: “The rule seems well settled that a final decree in an equity suit settles all property rights of the parties and bars any action thereafter brought by either party to determine the question of property rights”. The Court made reference there to the rule of civil procedure for compulsory counterclaims. However, that rule would have no bearing here, where the plaintiff wife attempted to raise such property issues in the dissolution action, but for the reason stated above the same were not proper to be adjudicated there.

In Finston v. Finston, supra, sometime after the divorce judgment the husband petitioned in the divorce action for a supplemental decree to require the ex-wife to release her rights as beneficiary under some insurance policies and in a certain tax refund, and to account for disposition of some personal property. In that case, as the Supreme Court there noted, those property rights had been presented in the pleadings and were properly before the court in the divorce action, and were there adjudicated.

The situation in the present case is materially different. Here, although raised in the dissolution case in the plaintiff’s pleadings, the property rights in question were held by this court not to have been properly before the trial court in the dissolution action, and an adjudication thereon by the trial court in that action was stricken.

It would be inconsistent and unjust to hold that the ex-wife was barred from maintaining this action for determination of her said property interest claims, on the basis of the rule that a marriage dissolution judgment determines the property rights of the parties which were or could have been there litigated, when the property right or rights thus subsequently asserted have been held by this court to be such as were not proper to be enforced or adjudicated in the dissolution action.

In the circumstances applicable to this case, the prior dissolution judgment does not operate as a bar to the ex-wife to assert her said claims of interest in the corporation or corporate stock.

The order appealed from is reversed, and the cause is remanded for further proceedings.


text:
    Secundino SANCHEZ, Appellant, v. VIGILANT INSURANCE COMPANY, etc., Appellee.
    Nos. 76-945, 76-1308.
    District Court of Appeal of Florida, Third District.
    May 3, 1977.
    Rehearing Denied May 25, 1977.
    Horton, Perse & Ginsberg, Ratiner & Glinn, Miami, for appellant.
    Walton, Lantaff, Schroeder & Carson and Richard J. Thornton, Miami, for appellee.
    Before HAVERFIELD, NATHAN and HUBBART, JJ.
   PER CURIAM.

Affirmed. See Government Emp. Ins. Co. v. Taylor, 342 So.2d 547 (Fla. 1st DCA 1977).


text:
    John PARISE, Appellant, v. The STATE of Florida, Appellee.
    No. 76-1033.
    District Court of Appeal of Florida, Third District.
    May 3, 1977.
    Cushman & Cushman, Miami, for appellant.
    Robert L. Shevin, Atty. Gen., and Joel D. Rosenblatt, Asst. Atty. Gen., for appellee.
    Before HENDRY, C. J., and PEARSON and HUBBART, JJ.
   PER CURIAM.

Affirmed. See: Resnick v. State, 287 So.2d 24 (Fla.1973).


text:
    Juan ABASCAL, Appellant, v. The STATE of Florida, Appellee.
    No. 76-1146.
    District Court of Appeal of Florida, Third District.
    May 3, 1977.
    Frank X. Gliozzo, Miami, for appellant.
    Robert L. Shevin, Atty. Gen. and Linda Collins Hertz, Asst. Atty. Gen., for appellee.
    Before BARKDULL, HAVERFIELD and NATHAN, JJ.
   PER CURIAM.

Appellant, Juan Abascal, appeals from a revocation of probation order and concurrent sentences of six months to five years imprisonment.

Defendant was charged in three separate informations of issuing worthless checks on three occasions. After entry of pleas of nolo contendere, adjudications of guilt were withheld and defendant was placed on three years probation. As a condition of probation he was ordered to make full restitution. Thereafter, an affidavit of violation of probation was filed charging defendant with failure to comply with the restitution condition' in that he did not fulfill his commitment to make a $100 payment on April 2, 1976 and to continue payments in that amount each three weeks thereafter. A revocation of probation hearing was held and the trial judge revoked defendant’s probation. The judge then entered three judgments of conviction and concurrent sentences of six months to five years imprisonment.

Appellant first contends that the trial judge imposed unlawful sentences upon revoking his probation. We cannot agree.

Upon the revocation of a defendant’s probation, a trial court may sentence the defendant for the same period of years as the court could have originally imposed. State v. Jones, 327 So.2d 18 (Fla.1976). Defendant was convicted of unlawfully obtaining services by means of issuing worthless checks, third degree felonies [Section 832.-05(2)(b), Florida Statutes (1975)] which are punishable for a term of imprisonment not exceeding five years [Section 775.082(3)(d), Florida Statutes (1975)]. Thus, the sentences were lawful.

Defendant also argues that -the trial judge erred in not permitting him to present at the revocation of probation hearing as witnesses the victims of the crime and character witnesses.

A review of the record reveals that appellant has omitted the transcript or clerk’s minutes of the revocation hearing. The record being incomplete, we cannot consider this matter and must affirm the trial court. See Nelson v. State, 85 So.2d 832 (Fla.1956); Williams v. State, 222 So.2d 428 (Fla. 4th DCA 1969); Costantino v. State, 224 So.2d 341 (Fla. 3d DCA 1969).

Affirmed.


text:
    Kelson Deanzel McKINNEY, Appellant, v. The STATE of Florida, Appellee.
    No. 76-1466.
    District Court of Appeal of Florida, Third District.
    May 3, 1977.
    Pollack, Tunkey, Robbins & Rosenfield, Miami, for appellant.
    Robert L. Shevin, Atty. Gen. and Ira N. Loewy, Asst. Atty. Gen., for appellee.
    Before PEARSON, HAVERFIELD and HUBBART, JJ.
   PER CURIAM.

Affirmed. See; State v. Dwyer, 317 So.2d 149 (Fla. 2d DCA 1975); Smith v. State, 292 So.2d 69 (Fla. 3d DCA 1974).


text:
    Ronald EPSTEIN, Appellant, v. Beatrice L. EPSTEIN, n/k/a Beatrice L. Witus, Appellee.
    No. 76-1884.
    District Court of Appeal of Florida, Third District.
    May 3, 1977.
    Noriega, Bartel, Chopp, Schatz, Levine & Shuford, Miami, for appellant.
    Milton M. Ferrell, Miami, for appellee.
    Before PEARSON, BARKDULL and NATHAN, JJ.
   PER CURIAM.

The appellant, former husband of the petitioner, appeals an order committing him for contempt for the failure to pay to the former wife approximately $13,400 in arrearages for child support and alimony. The commitment order must be reversed inasmuch as it fails to comply with the requirement that such an order include a finding that the debtor is able to pay. Faircloth v. Faircloth, 339 So.2d 650 (Fla.1976).

A second order, assigned as error, denied the appellant’s motion to modify the judgment for child support. No error appears as to this order. See Castor v. Castor 316 So.2d 588 (Fla. 1st DCA 1975).

For the reason expressed, the order of commitment is reversed and the cause is remanded to the trial court with directions to make such affirmative finding of ability if supported by the record or otherwise to vacate the order of contempt.

Affirmed in part, reversed in part.


text:
    Sandra J. SWAVELY, Petitioner, v. INDUSTRIAL RELATIONS COMMISSION et al., Respondents.
    No. 76-1967.
    District Court of Appeal of Florida, Third District.
    May 3, 1977.
    Spiegelman & Spiegelman and Ronald A. Gottlieb, Miami, for petitioner.
    Kenneth H. Hart, Jr., Tallahassee, and James R. Parks and Raymond C. Clay, Miami, for respondents.
    Before HENDRY, C. J., and HAVER-FIELD and HUBBART, JJ.
   PER CURIAM.

Petitioner, Sandra J. Swavely, seeks reversal of an order of the Industrial Relations Commission affirming the determination of the appeals referee that she is not entitled to unemployment compensation benefits for the reason that she left her employment without good cause attributable to her employer.

The issue presented in this appeal is whether an employee, following an employer approved maternity leave of absence, who requests employment reinstatement and is refused because of economic conditions, has voluntarily left her employment without good cause attributable to her employer within the meaning of Section 443.-06(1), Florida Statutes (1975).

This precise question has already been considered and answered in the negative in Robinson v. Industrial Relations Commission, 329 So.2d 401 (Fla. 4th DCA 1976) and Fisher v. State of Fla. Dept. of Commerce, Div. of Employment Security, 333 So.2d 513 (Fla. 4th DCA 1976). We find the holdings in these two cases are controlling and, therefore, grant the petition for writ of certiorari, quash the order under review and remand with directions to grant petitioner unemployment compensation benefits.

Certiorari granted.


text:
    STENOCOMP, INC., a Maryland Corporation, Appellant, v. AUTOMATED WORD PROCESSING, INC., a Florida Corporation, et al., Appellees.
    No. 76-2130.
    District Court of Appeal of Florida, Third District.
    May 3, 1977.
    Turner, Hendrick, Guilford, Goldstein & McDonald and S. Alan Stanley, Coral Gables, for appellant.
    Kuvin, Klingensmith & Lewis, Coconut Grove, Roger L. Blackburn, Miami, for ap-pellees.
    Before HENDRY, C. J., and PEARSON and HAVERFIELD, JJ.
   PER CURIAM.

Affirmed. See Wm. E. Strasser Construction Corporation v. Linn, 97 So.2d 458 (Fla.1957); Dans v. Gran Habana Restaurant & Lounge, Inc., 244 So.2d 157 (Fla.3d DCA 1971); Fashion Two Twenty, Inc. v. Ralph & Reba, Inc., 254 So.2d 49 (Fla.3d DCA 1971).


text:
    Norman RUTKIN, Appellant, v. Sondra RUTKIN, Appellee.
    No. 76-2206.
    District Court of Appeal of Florida, Third District.
    May 3, 1977.
    A. John Goshgarian, Miami Beach, and Howard Hochman, Miami, for appellant.
    Sondra Rutkin Alexander, in pro. per.
    Before HENDRY, C. J., and HAVER-FIELD and HUBBART, JJ.
   HUBBART, Judge.

This is an action for modification of a marriage dissolution decree in which the wife sought to have the marital home sold. The trial court ordered the sale and distributed the proceeds. The husband appeals from the distribution.

The issue presented for review is whether a husband, who subsequent to a marriage dissolution has reduced the mortgage principal on a marital home jointly held with his ex-wife as tenants in common, is entitled to a credit for the mortgage principal reduction allocable to his ex-wife’s interest therein to be charged upon sale of the home against the ex-wife’s share of the proceeds from the said sale. We hold that the husband is entitled to such a credit as computed and reverse.

On July 22, 1971, a final judgment was entered dissolving the marriage of Norman and Sondra Rutkin and giving the husband custody of the parties’ minor children. The husband was also given the marital home to reside therein with the children based on the stipulation that he pay the mortgage payments on the marital home. The final order of marriage dissolution provided that upon sale of the marital home “for the period that the husband pays the said mortgage payments, he shall be entitled to a credit for any portion of the principal of said mortgage indebtedness allocable to the wife’s interest to be determined and allowed upon sale of the property.”

On August 8, 1975, the wife filed a petition for modification of the marriage dissolution judgment seeking among other things that the marital home be sold. After referring the matter to a special master, the trial court affirmed the subsequent report of the special master and ordered that the husband sell the home under certain stipulated conditions not material here. The trial court further ordered that the husband should be given a credit for the total mortgage principal reduction allocable to the wife’s interest from the date of dissolution to the date of closing.

The marital home was subsequently sold for $32,406.30. It is undisputed that the husband reduced the mortgage principal al-locable to the wife’s interest from the date of the marriage dissolution to the date of closing in the amount of $3,486.40 and is entitled to a credit in that amount.

The husband petitioned the trial court for clarification as to the exact method by which the proceeds from the sale of the home were to be distributed. The trial court entered an order computing the distribution by: (1) subtracting most of the husband’s credit from the total proceeds of the sale, (2) dividing the remainder in half between the parties, and (3) subtracting the rest of the husband’s credit from the wife’s share of the sale proceeds.

The husband contends that this method of distribution was erroneous and that his entire credit should have been charged against the wife’s share in the total proceeds of the sale. After a petition for rehearing was heard and denied, the trial court put that part of the distribution monies in dispute ($1,336.13) in escrow pending this interlocutory appeal by the husband from the court’s order on distribution.

The law is well-settled that a spouse who reduces the mortgage principal on a marital home jointly held as tenants in common with his ex-spouse is entitled upon sale of the home to a credit for the mortgage principal reduction allocable to his ex-spouse’s interest in the home. This credit must be charged against the ex-spouse’s share in the proceeds from the sale of the marital home. Whiteley v. Whiteley, 329 So.2d 352 (Fla. 4th DCA 1976); Lyons v. Lyons, 208 So.2d 137 (Fla. 3d DCA 1968).

In the instant case, the husband and wife herein held the marital home as tenants by the entireties. Upon dissolution of their marriage, they held the home as tenants in common. Section 689.15, Florida Statutes (1975). The husband has subsequently made the mortgage payments on the marital home and is entitled to a credit of $3,486.40 for the mortgage principal reduction allocable to the wife’s interest. This credit should have been charged against the wife’s one half share in the proceeds from the sale of the home, not against the total proceeds of the sale since such total proceeds represent in part the husband’s own share of the monies earned from the sale.

Accordingly, the husband is entitled to a one half share of the proceeds from the sale of the marital home ($16,203.15), plus his credit for the mortgage principal reduction allocable to the wife’s interest ($3,486.40), for a total due and owing the husband from the proceeds of the sale in the amount of $19,689.55. The wife is also entitled to a one half share in the proceeds from the sale of the marital home ($16,203.15) which must be reduced by the aforesaid credit for the husband ($3,486.40), for a total due and owing the wife from the proceeds of the sale in the amount of $12,716.75. These results will be achieved on remand if the monies presently held in escrow are distributed to the husband.

Reversed and remanded for proceedings consistent with this opinion.


author: PEARSON, Judge.

text:
    Dr. George RICHARDS, Appellant, v. William Henry FOULK, Jr., Appellee.
    No. 77-16.
    District Court of Appeal of Florida, Third District.
    May 3, 1977.
    Rehearing Denied May 25, 1977.
    Magill, Sevier & Reid and Victor H. Womack, Miami, for appellant.
    Cohen & Kokus, Miami, for appellee.
    Before HENDRY, C. J., and PEARSON and HUBBART, JJ.
   PEARSON, Judge.

The appellant is a medical doctor who is the defendant in an action claiming medical malpractice. He appeals an order denying his motion to dismiss the complaint upon the ground that the plaintiff had not submitted his claim to mediation of the Medical Malpractice Reform Act of 1975, Section 768.133, Florida Statutes (1975). Appellant urges that because of plaintiff’s failure properly to prosecute his claim for medical mediation, which was filed but not prosecuted, that the court lacks jurisdiction of the subject matter and the person of the defendant. The trial court held that the failure to prosecute was due to inadvertence rather than design or neglect and denied the motion. We affirm.

The plaintiff alleged in his amended complaint that he had filed a medical malpractice mediation claim and that the mediation had been terminated by the judicial referee because more than 120 days had passed since the filing of the claim and the jurisdiction of the medical mediation panel had terminated. The record of the medical mediation proceedings was made a part of this record and it shows that the plaintiff filed his claim for medical mediation but that he failed to deliver to the sheriff the summons which was issued. The summons was actually served one day before the expiration of the 120 days allowed for defendant’s answer. Upon the filing of defendant’s motion to dismiss, plaintiff’s attorney filed an affidavit in which he swore that the failure to deliver the summons for service had been an oversight and was not intentional, that he had offered to waive the 120 day requirement at the hearing before the judicial referee but that the defendant had moved and insisted that the medical mediation be terminated.

It is clear that if the trial judge had found the plaintiff’s action was an intentional attempt to evade the statutory jurisdiction of the medical mediation panel, he could have dismissed the complaint. See Section 768.133(l)(a), Florida Statutes (1975). On the other hand, the trial judge properly held that he had jurisdiction both of the subject matter and the person of the defendant, and he properly denied the emotion to dismiss upon a finding that the failure to follow the medical mediation procedure was due to mistake or inadvertence.

The trial judge may, within his discretion, in the malpractice action, impose such sanctions as he finds appropriate for plaintiff’s failure to follow the medical mediation procedure outlined by statute. The court may, if it finds proper, stay the medical malpractice action pending a medical mediation proceeding under the order and direction of the trial court.

Affirmed.

      . This statute is now Section 768.44, Florida Statutes (Supp.1976).


text:
    Ellyn F. ELKINS, Appellant, v. Robert W. ELKINS, Appellee.
    No. 77-294.
    District Court of Appeal of Florida, Third District.
    May 3, 1977.
    Goodhart & Rosner, Greene & Cooper, Miami, for appellant.
    Jepeway, Gassen & Jepeway, Miami, for appellee.
    Before HENDRY, C. J., and BARKDULL and NATHAN, JJ.
   PER CURIAM.

Affirmed. See: Claughton v. Claughton, 344 So.2d 944 (Fla. 3rd DCA 1977).


author: BOARDMAN, Chief Judge.

text:
    Albert A. ROBINSON and Anne M. Robinson, his wife, Appellants, v. Robert ABREU and Marilyn Abreu, his wife, Appellees. Robert ABREU and Marilyn Abreu, his wife, Appellants, v. Albert A. ROBINSON and Anne M. Robinson, his wife, Appellees.
    Nos. 76-669, 76-766.
    District Court of Appeal of Florida, Second District.
    May 4, 1977.
    Frank A. McClung, Brooksville, for Albert and Anne Robinson.
    Daniel B. Merritt, Sr., McGee, Merritt & High, Brooksville, for Robert and Marilyn Abreu.
   BOARDMAN, Chief Judge.

We have for review a consolidated appeal of Case No. 76 — 766, an interlocutory appeal from an order granting relief from judgment, and Case No. 76-669, a direct appeal from an amended final judgment denying specific performance.

Albert A. and Anne M. Robinson, buyers, on January 27,1975, filed a complaint in the Circuit Court of Hernando County against Robert and Marilyn Abreu, sellers, praying for specific performance of a written contract to convey certain real property. The sellers filed an answer and affirmative defense. Following a final hearing the trial court denied the buyers the relief prayed for and entered an order dismissing the cause of action on November 4, 1975. The buyers’ attorney did not become aware of the court’s ruling until several months later at which time he filed a Fla.R.Civ.P. 1.540(b)(1) motion for relief from judgment, which was granted on April 9, 1976. The trial court set aside and vacated the final judgment of November 4, and entered an amended final judgment identical to the original final judgment. The sellers appeal the vacation of the original final judgment, and the buyers appeal the amended final judgment.

The written contract signed by the parties, dated October 12, 1971, provided, among other conditions, that the closing was to take place on or before December 15, 1971, and that time was of the essence. The purchase price of the realty was $7,500. The contract provided that $1,958.83, less the $100 deposit, was to be paid in cash, and the buyers were to assume an escrow agreement requiring a $50 per month payment.

The record on appeal conclusively discloses that the closing did not take place according to the contract. It is unrefuted that the cash payment due at the closing was not received by the sellers by December 15. Anne Robinson testified that the sale was to be completed by mail. However she did not mail the cash payment until-December 16, and she mailed it to the real estate broker, not to the sellers. The broker testified that he deposited the check in the realty company’s escrow account on December 20. Robert Abreu’s testimony that he expected that the broker would receive the funds and Anne Robinson’s testimony that all of their dealings had been through the broker could establish that the broker was authorized to accept timely payment.

The buyers argue that because the broker was the sellers’ agent his receipt and deposit of the Robinson check constitute acceptance of the late payment by the sellers. It is a well-settled rule of agency law however that a principal is bound only by the acts of his agent which are within the scope of his authority or by an act outside of his authority but which is subsequently ratified by the principal. E. g., Fredrick v. Squillante, 144 So.2d 848 (Fla.2d DCA 1962). 3 Am.Jur.2d Agency § 122 (1962); Annot., 30 A.L.R.2d 804 (1953). The buyers have failed to show that the broker had express, implied or apparent authority to modify the terms of the contract to accept payment after the closing date. Nor is there evidence to show that the sellers ratified or approved the act of the broker or that they even had knowledge of the broker’s receipt of the funds. In fact, the uncontradicted testimony of Robert Abreu was that he notified the buyers by telephone that he was withdrawing his offer to sell the property because of their failure to perform according to the written contract. A party to a contract is not entitled to specific performance of that contract where he did not perform his obligations according to the clear and unambiguous terms of the contract. See 29A Fla.Jur. Specific Performance § 46 (1967). Accordingly, Case No. 76-669 is affirmed. We need not decide the issue presented in Case No. 76-766 since the question raised on appeal is disposed of by our holding in Case No. 76-669.

AFFIRMED.

McNULTY and OTT, JJ., concur.

      . The trial court ruled that the buyers were not entitled to specific performance on the ground of laches based on the length of time between the accrual of the cause of action and the initiation of this suit. In view of our decision we need not determine whether the trial court’s findings of fact and conclusions of law were correct. It is a cardinal principle of appellate review that if the conclusion of the trial court is correct it will not be disturbed regardless of the reason for the ruling. E. g., Firestone v. Firestone, 263 So.2d 223 (Fla.1972).


author: McNULTY, Acting Chief Judge.

text:
    Dick C. BETTISON, Appellant, v. David C. BETTISON, Appellee.
    No. 76-781.
    District Court of Appeal of Florida, Second District.
    May 4, 1977.

      Joseph R. Park and John Blakely, of Johnson, Blakely & Pope, P.A., Clearwater, for appellant.
    Dennis D. Correa, of Correa & Luczak, St. Petersburg, for appellee.
   McNULTY, Acting Chief Judge.

The controlling point herein concerns whether the trial court had jurisdiction over the person of appellant in the proceeding below which resulted in the judgment appealed from. We think not and reverse.

The matter before us was first begun in February 1971 as a guardianship proceeding, in which the appellant/son was appointed guardian of the property of his father, the appellee. The father’s legal competency was restored in December 1972. The son thereupon surrendered all the guardianship assets, filed an accounting and petitioned for discharge. On January 5, 1973, the father filed objections to certain items on the accounting, which objections were never ruled upon. As a consequence, the son was never discharged as guardian and the guardianship proceeding remained an open matter.

Subsequently on July 31, 1973, the father attempted to initiate the instant proceedings simply by mailing the son (a resident of Hillsborough County) a complaint and notice of hearing, which was styled as an adversary proceeding in which the father was plaintiff and the son was defendant and which bore the same case number as the guardianship proceeding. Indeed, the original of each was filed in the guardianship proceeding.

The complaint was in two counts, the first alleged that subsequent to the restoration of his competency, the father delivered certain powers of attorney and stock transfers to the son authorizing the latter to deal with the securities in certain respects. Defalcations on the part of the son were alleged and cancellation of the transfers and an accounting were prayed for. Count two sought replevin of the securities.

The appellant filed motions to abate for improper venue and to quash for lack of service of process. The motions were denied, the court ruling that since the guardianship proceeding was still open the person of the son was still subject to the jurisdiction of the court “as was the subject matter.” The son thereafter filed pleadings and the matter proceeded to an adverse judgment from which he brings this appeal.

We summarily determine that the son did not waive his right to appeal the denial of his motions to abate or to quash by pleading to the merits and proceeding to judgment.

To the merits now. The critical facts here are that the gravamen of the father’s complaint against the son is predicated on a certain transfer of powers and securities occurring subsequent to the restoration of the father to competency, and no recovery on behalf of the guardianship estate nor claim against the “guardian” is sought. The cause of action alleged is simply a controversy between two individuals who are sui juris, neither of whom is a party in any representative capacity. The mere fact that a prior guardianship proceeding involving the parties in other capacities remains open and the fact that certain matters within the administration of that guardianship proceeding are still unresolved by the court having jurisdiction over that proceeding do not change the present posture in which the parties find themselves. As we see it, the parties are in no different position now as far as the cause of action involved herein is concerned than they would have been had the guardianship proceeding been closed or had there been none at all. That being the case, the law relating to venue, service of process and subject matter jurisdiction in the ordinary case is applicable here. The absence of service of process here, therefore, is patently fatal.

Other errors complained of herein, some of which may be well taken, need not now be considered since it can’t be anticipated that they will recur following a resolution of the venue question that may again become viable upon return of our mandate.

In view whereof the judgment appealed from should be, and it is hereby, vacated and set aside; and the cause is remanded with directions that the court grant the motion to quash for lack of jurisdiction over the person. The motion to abate for improper venue will thus become moot.

GRIMES, J., and DREW, E. HARRIS (Ret.), Associate Judge, concur.

      . See State of Florida ex rel. Eli Lilly and Company v. Shields, 83 So.2d 271 (Fla.1955); Periolat v. Periolat, 336 So.2d 1256 (Fla.2d DCA 1976).

      . Cf. First National Bank in Fort Lauderdale v. Moon, 234 So.2d 402 (Fla.4th DCA 1970).