text:
    Stanley BIRD, Appellant-Cross Appellee, v. Deborah BIRD, Appellee-Cross Appellant.
    No. 79-775.
    District Court of Appeal of Florida, Fourth District.
    June 18, 1980.
    Rehearing Denied July 25, 1980.
    William (Dale) Anderson, Jr. of Anderson, Dungey & Hershey, Stuart, for appellant-cross appellee.
    Alexander Myers of Christiansen, Jacknin & Myers, Palm Beach, for appellee-cross appellant.
   DOWNEY, Judge.

The subject of this appeal is a final judgment rendered in a dissolution proceeding.

The parties were married some thirty years; they have no minor children and both parties were employed. As a result of their industry they acquired several parcels of real estate and other personal property, all through their joint efforts. At the time of dissolution the property in issue on this appeal was held jointly and was purchased with funds earned by the parties during the marriage, with the exception of $10,000 inherited by the wife and which, according to her testimony, was invested in the couple’s Canadian property.

The husband received a $50,000 workman’s compensation award, which he used to pay off some debts, buy some furniture, and, after the divorce commenced, to purchase a piece of property for his new home and business office. The husband owned and operated a taxi business in which the wife claimed a special equity by virtue of having spent considerable time working in the business. Predictably, the husband denigrated the amount and value of her assistance therein. However, that was for the trial judge to resolve and he did so.

In pertinent part the final judgment provided:

a. The Wife has a special equity in the business of STANLEY BIRD to-wit: Bird’s Taxi. However, the Court hereby orders the Wife, DEBORAH BIRD, to convey all right, title and interest in said business to the Husband, STANLEY BIRD.
♦ * * * * *
c. The Court specifically finds that the Wife has a special equity in the three belowlisted properties pursuant to the testimony and evidence received in this case. The Court hereby awards the Wife any and all interest the Husband has in said property and awards this to the Wife as lump sum alimony. The three properties are: (descriptions omitted)
10. That the Husband shall pay as contribution toward the Wife’s attorney’s fees the sum of $1,800.00 plus $170.73 costs. This sum shall be paid within ninety days.

In his two points on appeal the husband contends that the award of the aforementioned property to the wife, together with an attorney’s fee, was error. By cross appeal the wife maintains that the court erred in failing to merge into the final judgment some of the mandates of previous interlocutory orders. The appellant has demonstrated no reversible error. We affirm the award of attorney’s fees and find no merit in appellee’s cross appeal.

Had this case been decided prior to the advent of the Supreme Court’s decision in Canakaris v. Canakaris, 382 So.2d 1197 (Fla.1980), the outcome would have been vastly different, as we would have had great difficulty in upholding all aspects of the final judgment. It appears the trial judge in his wisdom was ahead of his time, because in our view Canakaris has eliminated some of the strict limitations which the cases had imposed upon trial judges in dividing up property accumulated during the marriage. As a backdrop for our decision here we should keep in mind the lessons of Canakar-is :

The judge possesses broad discretionary authority to do equity between the parties and has available various remedies to accomplish this purpose, including lump sum alimony, permanent periodic alimony, rehabilitative alimony, child support, a vested special equity in property, and an award of exclusive possession of property. As considered by the trial court, these remedies are interrelated; to the extent of their eventual use, the remedies are part of one overall scheme. It is extremely important that they also be reviewed by appellate courts as a whole, rather than independently. 382 So.2d at 1202.
The term “special equity” should not be used when considering lump sum alimony; rather, it should be used only when analyzing a vested property interest of a spouse. See Ball v. Ball, 335 So.2d 5 (Fla.1976); Eakin v. Eakin [99 So.2d 854 (Fla.)]; Heath v. Heath, [103 Fla. 1071, 138 So.2d 796].
In granting lump sum alimony, the trial court should be guided by all relevant circumstances to ensure “equity and justice between the parties.” § 61.08, Fla. Stat. 382 So.2d at 1201.
* * * * * *
A judge may award lump sum alimony to ensure an equitable distribution of property acquired during the marriage, provided the evidence reflects (1) a justification for such lump sum payment and (2) financial ability of the other spouse to make such payment without substantially endangering his or her economic status. Brown v. Brown. In our opinion, the award of the marital home as lump sum alimony may be coupled with other lump sum alimony or permanent periodic alimony awards if justified by the evidence. The collective use of such alimony awards has been approved recently by this Court in McDonald v. McDonald, 368 So.2d 1283 (Fla.1979), and by the Third District Court of Appeal. See Hyatt v. Hyatt, 315 So.2d 11 (Fla.3d DCA 1975); Vandervoort v. Vandervoort, 300 So.2d 694 (Fla.3d DCA 1974). 382 So.2d 1201.

In the case at bar the trial court found, and the record supports, that the wife had a special equity in the husband’s taxi business. This interest was awarded to the husband. Next, the trial court awarded the husband’s interest in three parcels of realty to the wife as lump sum alimony. The court found that the wife had a special equity in the three properties. In view of the facts of this case, we interpret that to mean the so-called special equity determined to justify an award of lump sum alimony. It is this use of the term “special equity”, condemned in Canakaris which hopefully will eliminate confusion in the future. In any event, the record in this case supports an award of alimony to the wife. Furthermore, there is justification for the alimony to be in lump sum. The evidence showed that the husband had so conducted himself during these proceedings that terminating all relationship between the parties was in their best interests. The evidence warranted a finding that the husband had harassed the wife; had broken into her house; threatened her with a gun and actually fired at her on one occasion. Thus, we approve the form of the award of lump sum alimony.

The husband complains in his brief that the court awarded the wife property valued at $165,000 with a net equity of $90,000, leaving the husband with only his home, recently purchased with the funds from his compensation award. In the vernacular, the bottom line of what the wife received by way of lump sum alimony was the value of the husband’s interest in the properties, less the $10,000 special equity the wife was entitled to from her Canadian inheritance which was used to purchase their first property in Canada, and less the value of her special equity in her husband’s business, which the trial court required her to convey to the husband. Thus, while the exact figure is not available to us, we are in a position to determine that the amount of the award of lump sum alimony was not unreasonable but rather it “ensure[d] equity and justice between the parties.” Canakar-is, supra.

We also find no reversible error in the award of a partial attorney’s fee for the wife or in the court’s failure to include in the final judgment awards made in interlocutory orders.

For the foregoing reasons, we affirm the judgment appealed from in all respects.

AFFIRMED.

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

      . For example, if Canakaris, supra, did not, Duncan v. Duncan, 379 So.2d 949 (Fla.1980), makes it clear that the prohibition against the trial court making “a property settlement” between the parties has been eliminated,


source: Caselaw Access Project

author: PER CURIAM:

license: Public Domain

text:
    STATE of Florida, Appellant, v. Brian HOGAN, Appellee.
    No. 79-1114.
    District Court of Appeal of Florida, Fourth District.
    June 18, 1980.
    Rehearing Denied Aug. 6, 1980.
    Jim Smith, Atty. Gen., Tallahassee, Glenn H. Mitchell and Marc E. Kirk, Asst. Attys. Gen., West Palm Beach, for appellant.
    Elliott R. Brooks of Weathers & Narkier, P. A., West Palm Beach, for appellee.
   PER CURIAM:

Affirmed. See State v. Riggins, 348 So.2d 1209 (Fla. 4th DCA 1977), cert. dismissed, 362 So.2d 1056 (Fla.1978); Smith v. State, 378 So.2d 281 (Fla.1979).

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


author: LETTS, Chief Judge.

text:
    LAW REALTY, INC., a Florida Corporation, Appellant, v. John A. PAGLIARULO and Albert Pica, Appellees.
    No. 79-1918.
    District Court of Appeal of Florida, Fourth District.
    June 18, 1980.
    On Rehearing July 30, 1980.
    Phillip T. Crenshaw of Crenshaw & Cren-shaw, P. A., Lake Worth, for appellant.
    Bruce Zeidel, West Palm Beach, and Thomas J. Woolley, Jr., Boynton Beach, for appellees.
   LETTS, Chief Judge.

A real estate broker here appeals the trial court’s directed verdict in favor of a house owner denying a real estate commission on the grounds that the listing agreement did not constitute an exclusive right to sell. We reverse.

The “Listing Agreement” provided inter alia:

1. ... I hereby give you for a period of 6 months from this date the exclusive right and authority to sell
* * * * * *
5. In consideration of the above, I agree:
A. To refer to you all inquiries of Realtors or others interested in my property, (emphasis supplied)

Despite the above, the owner sold the house himself within the six month period and did not pay any brokerage. Nonetheless the trial court denied the broker a commission basing the directed verdict on the authority of a Second District case, Nicholas v. Bursley, 119 So.2d 722 (Fla. 2d DCA 1960). In Nicholas v. Bursley the court found the language there employed in the listing agreement to be ambiguous and that, therefore, the broker who had drawn it up did not have an “exclusive right to sell” but only had an “exclusive agency.” The court went on to correctly reason that under an exclusive agency the owner can sell the property himself without incurring liability for a real estate commission.

It is not necessary for us to agree or disagree with the remainder of the reasoning in Nicholas v. Bursley, because in addition to nearly identical language in the listing agreement in that case and the one now before us, there is, in the instant case, other language agreeing to refer all others interested in the property to the broker during the six month period. It goes without saying that anyone who actually purchased the house would have to be another interested in it. See Community Cablecasting Corp. v. Daniels & Assoc., Inc., 215 So.2d 17 (Fla. 1st DCA 1968).

We have sympathy with the owner’s view that if the broker had nothing to do with the sale, he should not get a commission. Yet the language of the listing agreement signed by the owner is clear and unambiguous and we hold it to be an exclusive right of sale agreement.

The cause is reversed and remanded in accordance herewith so that the house owner may present any defenses which are prbperly before the trial court.

REVERSED AND REMANDED.

DOWNEY and HURLEY, JJ., concur.


author: PER CURIAM. GLICKSTEIN, Judge,

text:
    SOUTH BROWARD HOSPITAL DISTRICT, Petitioner, v. DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES of the State of Florida, DIVISION OF ADMINISTRATIVE HEARINGS, etc., and Hollywood Medical Center, Inc., Respondents.
    No. 79-1937.
    District Court of Appeal of Florida, Fourth District.
    June 18, 1980.
    Rehearing Denied July 30, 1980.

      Larry Klein, West Palm Beach, Foley, Hoag & Eliot, Boston, Mass., and Reasbeck & Fegers, Hollywood, for petitioner.
    Gerald Mager of Abrams, Anton, Robbins, Resnick, Schneider & Mager, P. A., Hollywood, for respondent, Hollywood Medical Center, Inc.
   PER CURIAM.

At issue is whether an unsuccessful applicant for a certificate of need authorized under the provisions of Section 381.494, Florida Statutes (1979) has standing to contest the near simultaneous granting of a certificate to a competing applicant.

From reading the record it would appear that the two state agency action reports on the twin applications for a certificate of need for a C. T. whole body scanner were made within 18 days of each other. The first of these reports denied the respondent, Hollywood Medical Center’s application for such a scanner in part because there was “not a need for additional C. T. service in Broward County at this time.” However, 18 days later the petitioner’s application for an identical scanner was approved in the same geographical area.

We do not suggest that the choice was in error and we are aware that the Florida Administrative Code Rule 10-5.-12(1) provides that “an applicant is not aggrieved by the issuance of a certificate of need to another applicant.” Nevertheless, we are also of the opinion that the petitioner has standing to request review if these applications are mutually exclusive. See Bio-Medical Applications of Ocala, Inc. v. Office of Community Medical Facilities, Department of Health and Rehabilitative Services, 374 So.2d 88 (Fla. 1st DCA 1979) and Bio-Medical Applications of Clearwater v. Department of Health and Rehabilitative Services Office of Community Medical Facilities, 370 So.2d 19 (Fla. 2d DCA 1979).

Several factors involved in these two applications appear to us to raise questions of fact as to whether these two applications fall into the mutually exclusive category. The existence of such questions preclude the granting of a writ of prohibition.

Similarly we do not believe the request for review of non-final administrative action is appropriate. Butterworth v. The Public Employees Relations Commission, 382 So.2d 859 (Fla. 4th DCA 1980).

THE REQUESTED RELIEF IS DENIED.

LETTS, C. J., and ANSTEAD, J., concur.

GLICKSTEIN, J., dissents with opinion.

GLICKSTEIN, Judge,

dissenting.

The majority holds that the granting of a certificate of need to a subsequent applicant entitles a prior applicant, whose application was denied because of its failure to meet the same criteria that the later applicant was found to have met, to a comparative hearing of the two applications. In the absence of a showing of mutual exclusivity by the denied applicant, I disagree. In order to comprehend the significance of the court’s opinion and my dissent, a full recitation of the facts is necessary.

Hollywood Medical Center, Inc., owner and operator of a private Hospital in Hollywood, Florida, made application in November, 1978, for a certificate of need to purchase and install a computerized tomographic (CT) whole-body scanner at a cost of $625,000. Pursuant to Section 381.494(5) and (6), Florida Statutes (1979), the application was first investigated and reviewed by the Health Planning and Development Council of Broward County, the health systems agency (HSA) for the County. On April 19, 1979, HSA recommended to the Department of Health and Rehabilitative Services (HRS) that Hollywood Medical’s application be denied. On May 22, 1979, HRS denied the application and stated in its State Agency Action Report:

The proposed project is not consistent with the adopted standard and criteria relative to the determination of the appropriate number of CT Scanners needed in the Health Systems Agency health service area. . . . panded or otherwise significantly modified health-care facility, health service ....

Petitioner, South Broward Hospital District, operates Memorial Hospital, a public hospital located in Hollywood, Florida. Memorial had one CT scanner in operation when it filed an application for the purchase and installation of another one at a project cost of $848,280. On May 17, 1979, the HSA recommended to HRS that Memorial’s application be approved. On June 29, 1979, HRS approved the application on the basis that Memorial had established “extenuating circumstances,” and issued a certificate of need.

Prior to June 29,1979, Hollywood Medical filed a petition with HRS for hearing pursuant to Section 120.57, Florida Statutes (1979), with respect to the denial of its application. On July 11, 1979, it served a petition for a formal proceeding pursuant to said statute, contending that Memorial’s application should not have been approved, that the granting of Memorial’s application has affected the substantial interests of Hollywood Medical, that the certificate of need should not have been issued to Memorial without a comparative hearing of the respective applications, and that its two petitions should have been consolidated. On July 25, 1979, by letter, Hollywood Medical requested a public hearing pursuant to Florida Administrative Code Rule 10-5.-10(10) for reconsideration of the issuance of a certificate of need to Memorial Hospital. On July 30, 1979, HRS requested of the Division of Administrative Hearings that a hearing officer be assigned to handle Hollywood Medical’s petition for hearing filed on July 11, 1979. On August 3, 1979, South Broward Hospital District served a motion to dismiss, directed to Hollywood Medical’s petition for hearing of July 11, 1979. On August 13, 1979, the hearing officer denied the motion to dismiss, ordered South Brow-ard Hospital District joined as a respondent and consolidated Hollywood Medical’s two petitions. Memorial then filed its petition in this court for a Writ of Prohibition.

Florida Administrative Code Rule 10-5.-10(8) provides for the right of hearing to an aggrieved applicant. Rule 10-5.12(1) states, inter alia: “An applicant is not aggrieved by the issuance of a certificate of need to another applicant.” Therefore, Hollywood Medical was not aggrieved by the issuance of a certificate of need to petitioner and did not have standing to contest same.

Standing is equated with subject matter jurisdiction, Askew v. Hold the Bulkhead—Save Our Bays, Inc., 269 So.2d 696, 698 (Fla. 2d DCA 1972); Silver Star Citizens’ Committee v. City Council of Orlando, 194 So.2d 681, 682 (Fla. 4th DCA 1967), and holding a hearing upon the request of a party without standing would be an act in excess of subject matter jurisdiction. A Writ of Prohibition, being the appropriate remedy to prevent an inferior tribunal from acting in excess of its jurisdiction, English v. McCrary, 348 So.2d 293 (Fla.1977), should be issued to prohibit any hearing or other activity resulting from Hollywood Medical’s petition to HRS for hearing on the issuance of a certificate of need to Memorial.

However, I am not proposing that Florida Administrative Code Rule 10-5.12(1) should be applied indiscriminately. Under appropriate circumstances, specifically, a demonstration of mutually exclusive applications, Rule 10-5.12(1) must yield to constitutional requirements of fairness. Before expanding on these views, an appreciation of when mutual exclusivity exists is essential.

The so-called principle of mutual exclusivity is ascribed to Ashbacker Radio Corporation v. Federal Communications Commission, 326 U.S. 327, 66 S.Ct. 148, 90 L.Ed. 108 (1945), wherein two radio stations, one in Grand Rapids, Michigan, and the other in Muskegon, Michigan, applied for authority to broadcast on 1230 kc. The Commission found that simultaneous operation by the two would result in intolerable interference. It granted the first application with a hearing, and then set the second application for hearing. The Supreme Court disagreed:

We only hold that where two bona fide applications are mutually exclusive the grant of one without a hearing to both deprives the loser of the opportunity which Congress chose to give him.
326 U.S. at 333, 66 S.Ct. at 151.

Two other Florida district courts adopted the procedure employed by the United States Supreme Court where mutual exclusivity was found in competing applications for a certificate of need filed by two different health-oriented facilities. In Bio-Medical Applications of Ocala, Inc. v. Office of Community Medical Facilities, Department of Health and Rehabilitative Services, 374 So.2d 88 (Fla. 1st DCA 1979), HRS simultaneously granted the application of Shands Teaching Hospital and denied the application of Bio-Medical, a competitor, for a certificate of need authorizing a ten-station chronic renal dialysis facility. HRS had denied Bio-Medical a Section 120.57 hearing on Shands’ application on the grounds that Bio-Medical lacked standing or did not timely assert standing. The First District Court of Appeal reversed:

We find that these applications are mutually exclusive, each proposing to satisfy the same limited need; that Bio-Medical has standing as a “party” to proceedings on Shands’ application; and that, absent Department rules giving Bio-Medical an earlier clear point of entry as intervenor, Bio-Medical timely requested a hearing after the Department acted on Shands’ application in free-form proceedings.
Bio-Medical asserts that, as an applicant for a certificate of need, it is entitled by Section 381.494(6)(e) to an APA hearing on Shands’ application. That statute provides:
Any applicant or health systems agency aggrieved by the issuance or denial of a certificate of need shall have the right, within not more than 30 days from the day notice of the issuance or denial of such certificate is received from the department, to seek relief according to the provisions of the Administrative Procedure Act. .
We need not go so far as to hold that “any” simultaneous applicant for a certificate of need is entitled to an APA hearing on receipt of notice that the Department has granted another’s application. But when simultaneous applications are mutually exclusive and are so regarded by the Department, as here evidenced by the order denying Bio-Medical’s application in favor of Shands’ “less costly and more appropriate alternative,” each competitor is potentially a party to the proceedings on the other’s application. Each is one “whose substantial interests will be affected by proposed agency action” on the other’s application. Section 120.-52(10)(b), Florida Statutes (1978 Supp.); Bio-Medical Applications of Clearwater, Inc. v. Department of Health and Rehabilitative Services, 370 So.2d 19 (Fla. 2d DCA 1979).
Because Bio-Medical had standing as a potential party to the Shands proceedings, Bio-Medical was-entitled to request a hearing in those proceedings by which Shands’ substantial interests were to be determined. Section 120.57, Florida Statutes (1978 Supp.); Gadsden State Bank v. Lewis, 348 So.2d 343, 346 (Fla. 1st DCA 1977).
Id. at 88-89.

The Second District had reached a similar conclusion in Bio-Medical Applications of Clearwater, Inc. v. Dept. of Health and Rehabilitative Services, 370 So.2d 19 (Fla. 2d DCA 1979). In that case Kidneycare of Florida, Inc., applied for a certificate of need and capital expenditure approval to install a ten-station kidney dialysis center in Clearwater. HRS disapproved the application and Kidneycare requested a “fair hearing” pursuant to Florida Administrative Code Rule 10-5.10(8). In the meantime Bio-Medical Applications of Clearwater, Inc., had filed an application for certificate of need and capital expenditure approval with respect to a twenty-station kidney dialysis center in Clearwater. HRS disapproved its application also, whereupon BioMedical also requested a fair hearing. BioMedical moved that the proceedings pertaining to its application be consolidated with that of Kidneycare. Kidneycare objected and the hearing officer denied the motion. The Kidneycare hearing resulted in the issuance of a certificate of need to Kidneycare and the approval of its capital expenditure proposal for ten kidney dialysis stations. The subsequent hearing on the Bio-Medical application produced a recommendation that Bio-Medical be permitted to open seven kidney dialysis stations in Clear-water, as opposed to the twenty it had requested. Bio-Medical then petitioned the Second District Court of Appeal to set aside the issuance of a certificate of need to Kidneycare and to order a comparative hearing between Kidneycare and Bio-Medical. In granting the requested relief, the court said at page 20:

We are asked to apply the doctrine of Ashbacker Radio Corp. v. F. C. C., 326 U.S. 327, 66 S.Ct. 148, 90 L.Ed. 108 (1945) and rule that under these circumstances a comparative hearing should have been held at which the two applications could be considered simultaneously. We grant that request and find that the failure to conduct a comparative hearing in this case constituted a material error in procedure requiring that the matter be remanded for further agency action in accordance with our Administrative Procedure Act. [footnote omitted].

On page 23 it said:

We agree that Ashbacker should apply whenever an applicant is able to show that the granting of authority to some other applicant will substantially prejudice his application. Great Western Packers Express, Inc. v. United States, I. C. C., 263 F.Supp. 347 (D.Colo.1966). In such a case fairness requires that the agency conduct a comparative hearing at which the competing applications are considered simultaneously. Only in that way can each party be given a fair opportunity to persuade the agency that its proposal would serve the public interest better than that of its competitor. Such an opportunity is not afforded by merely allowing an applicant to intervene in the proceedings pertaining to a competing application since the merits of the inter-venor’s proposal are not thereby presented for comparative consideration.
We believe that the Ashbacker doctrine clearly applies in the case before us. We are not the first to observe that where need is determined in accordance with a quantitative standard; that is, by number of units, a fixed pool of needed investments is thereby created. Opposing applicants necessarily become competitors for that fixed pool. Once the determination is made that there is a need for ten kidney dialysis units or stations, the granting of an application for those ten units automatically decreases need by that number and effectively denies another pending application to the extent of those ten units. That clearly is mutual exclusivity within the meaning of Ash-backer.

Should mutual exclusivity exist, a conflict arises between the last sentence of Florida Administrative Code Rule 10-5.12(1) and the aforementioned decisions of the First and Second Districts. As noted above Rule 10-5.12(1) lays down an inflexible all-encompassing determination that “An applicant is not aggrieved by the issuance of a certificate of need to another applicant.” However, in Bio-Medical Applications of Ocala, Inc., supra, and Bio-Medical Applications of Clearwater, Inc., supra, it was demonstrated how an applicant can be aggrieved by the issuance of a certificate of need to another applicant. The limiting language of Rule 10-5.12(1) as to who is an aggrieved applicant should apply in all cases where at least a prima facie case of mutual exclusivity has not been shown by an aggrieved applicant. When a prima facie case of mutual exclusivity has been shown, a denied applicant must be given the right to a comparative hearing with the approved applicant.

In the instant case Hollywood Medical argues that petitioner’s application and its own were mutually exclusive and that the rationale of the First and Second Districts should apply sub judice. I would agree with Hollywood Medical’s conclusion if I did not take issue with its premise — the existence of mutual exclusivity. Petitioner was issued a certificate of need on the basis of extenuating circumstances, one of the ten criteria for approval of a scanner. No such extenuating circumstances were found on review of Hollywood Medical’s application. Thus a prima facie case of mutual exclusivity has not been shown and a comparative hearing should not be held.

With the understanding of my views expressed herein, I dissent from the court’s opinion.

      . Section 381.493(3)(d), Florida Statutes (1979), defines certificate of need as follows:
      “Certificate of need” means a written statement issued by the department evidencing community need for a new, converted, ex-

      . Several statutory sections that are relevant sub judice were reenacted or amended in 1979 while this case was at the administrative level. Since none of the changes affects this appeal, I shall cite to the appropriate section of the 1979 publication of Florida Statutes for ease of reference only. No inference is intended that the 1979 editions does or does not apply.

      . The ten criteria for approval of a Computerized Axial Tomographic (CAT) whole body scanner are contained in Florida Administrative Code Rule 10-5.11(13)(b). The first nine include the use under the direction of a qualified physician, representation on the medical staff of certain specialties, documentation of therapeutic capabilities for treating disorders, documentation of a minimum number of procedures in the past year, documentation of the need for a minimum number of scans in the future, documentation of a minimum number of scans per existing scanner in the service area, documentation of emergency service capability, agreement to provide the HSA utilization and financial data and demonstration of a willingness to share CAT services. The tenth criterion is
      Extenuating circumstances pertaining to significant health care quality or access problems, improved cost benefit considerations, or research needs may be considered for purposes of modifying this requirement.

      . The extenuating circumstances, according to the HRS State Agency Action Report on Memorial’s application, were:
      a. Memorial Hospital is the only major hospital in South Broward Hospital District and the most active facility in Broward County to provide services to seriously sick pediatric patients.
      b. For the same period of time, the hospital had 7,232 critical care patient days, the second highest utilization in Broward County.
      c. The hospital had 25,484 admissions from May 1977-April 1978, 717 patient days; 53,819 EM visits; and an average daily census of 507 patients, all of which make it one of the active facilities in the county.
      d. The hospital has 24,151 acute psychiatry inpatient days, making it the most active provider of this type of service.
      e. For the same period of time, the hospital treated 787 cancer patients, the largest number of patients treated in the county.
      f. Memorial Hospital is currently involved in a clinical study involving treatment of radiation therapy patients. Thus the hospital is devoting a significant portion of CT scanner time to fixed protocol institutionally approved research projects.
      g. Memorial Hospital states that acquisition of a second scanner will improve cost benefits considerations as an extenuating circumstance will result in significant saving to the patients; can be provided in a cost effective setting, facility already has shelled in space, cut patient transportation cost to other facilities.

      . Rule 10-5.10(10) provides, in part:
      Within 30 days of the department’s decision on a certificate of need application, any person may, for good cause shown request in writing a public hearing for purposes of reconsideration of the department’s decision. A request for a public hearing shall be deemed by the department to have shown good cause if it:
      (a)Presents significant, relevant information not previously considered by the department.
      (b) Demonstrates that there have been significant changes in factors or circumstances relied upon by the department in reaching its decision.
      (c) Demonstrates that the department has materially failed to follow its adopted procedures in reaching its decision. If deemed by the department that good cause has been shown, a public hearing shall commence within 30 days of receipt of the request.

      . Reference is to § 381.494(6)(e), Florida Statutes (1977), which was renumbered as § 381.-494(7)(e) in the 1979 edition.

      . The last sentence of Florida Administrative Code Rule 10-5.12(1), quoted in the body of this opinion, became effective June 5, 1979. Prior thereto that rule was silent as to who was an aggrieved applicant. Interestingly, the opinion in Bio-Medical Applications of Ocala, Inc. v. Office of Community Medical Facilities, 374 So.2d 88 (Fla. 1st DCA 1979), was filed on August 7 1979; however, the court failed to mention any provisions of the Administrative Code. Instead, the First District relied on the APA, in particular §§ 120.52(10)(b) and 120.57, Florida Statutes (1978 Supp.), and § 381.-494(7)(e), Florida Statutes (1979) (see n. 6, supra). The court also did not list the dates of the agency’s action; consequently it cannot be determined whether the June 5, 1979 amendments were applicable.

      . See n. 4, supra.

      . See n. 3, supra.


author: GRIMES, Chief Judge.

text:
    Vaughn PORTER and Barbara Porter, husband and wife, Appellants, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, a corporation, Associated Indemnity Corporation, a corporation, Paul Haenel and Lance Calvin Haenel, Appellees.
    No. 79-1932.
    District Court of Appeal of Florida, Second District.
    June 18, 1980.
    Rehearing Denied July 10, 1980.
    Bruce D. Frankel of Goldberg, Rubinstein & Buckley, Fort Myers, for appellants.
    M. Joseph Lieb, Jr., of Crabtree, Butler, Syprett & Meshad, Sarasota, for appellee State Farm Mutual Automobile Insurance Company.
   GRIMES, Chief Judge.

This is an appeal from a summary judgment upholding the insurance company’s interpretation of the anti-stacking statute.

On March 19, 1978, Vaughn Porter was injured while a passenger in an automobile driven by Larry Jones when a car owned by Paul Haenel and driven by Lance Haenel struck the Jones’ vehicle. At the time of the accident the following insurance policies were in force:

(1) The Haenel vehicle was insured by a policy of insurance issued by Fireman’s Fund which had an applicable liability policy limit of $10,000.
(2) The Jones vehicle was insured by a policy of insurance issued by State Farm which had uninsured motorist coverage policy limits for injury to one person of $15,000.
(3) Porter was insured by a policy of insurance issued by Associated Indemnity covering his personal vehicle which had uninsured motorist coverage policy limits for injury to one person of $30,000.

The attorney representing Mr. Porter and his wife submitted in writing to State Farm a proposed settlement with Fireman’s Fund for the liability limits of Haenel’s policy. State Farm responded that it was “not interested in the claim of Vaughn Porter as the law and statute has established that direction.” Several months later the Porters filed suit seeking a tort judgment against the Haenels and their insurer, Fireman’s Fund, and asserting claims for uninsured motorist awards against State Farm and Associated Indemnity Corporation. The court granted summary judgment to State Farm, and the Porters initiated this appeal.

State Farm argues that the Porters may not sue it because they failed to make a request for arbitration. This contention is without merit since the Porters correctly relied upon Section 627.727(6), Florida Statutes (1977), which calls upon the insurer to advise the claimant whether it will agree to a proposed settlement with the tortfeasor and his carrier and commence arbitration of the uninsured motorist claim. When State Farm declined to recognize Mr. Porter’s uninsured motorist claim, the Porters were at liberty to file suit according to the statute in the manner in which they did.

The court entered the summary judgment for State Farm on the basis of McLellan v. State Farm Mutual Automobile Insurance Co., 366 So.2d 811 (Fla. 4th DCA 1979). According to the rationale of that case, Porter could not “stack” State Farm’s uninsured motorist coverage on the larger uninsured motorist coverage of Associated Indemnity. Unfortunately for State Farm, this court has recently taken a contrary position. In Stephan v. United States Fidelity & Guaranty Co., 384 So.2d 691 (Fla. 2d DCA 1980), we held that Section 627.-4132, Florida Statutes (1977), does not preclude a person injured while riding as a passenger in an automobile involved in an accident with an uninsured motorist from recovering uninsured motorist claims from his host’s carrier as well as his own. Here, just as in Stephan, there were different named insureds on the policies issued by State Farm and Associated Indemnity. See Cox v. State Farm Mutual Automobile Insurance Co., 378 So.2d 330 (Fla. 2d DCA 1980).

Accordingly, we reverse the summary judgment and remand the case for further proceedings consistent with this opinion.

HOBSON and OTT, JJ., concur.

      .If an injured person or, in the case of death, the personal representative agrees to settle a claim with a liability insurer and its insured for the limits of liability, and such settlement would not fully satisfy the claim for personal injuries or wrongful death so as to create an uninsured motorist claim against the uninsured motorist insurer, then such settlement agreement shall be submitted in writing to the uninsured motorist insurer, which shall have a period of 30 days from receipt thereof in which to agree to arbitrate the uninsured motorist claim and approve the settlement, waive its subrogation rights against the liability insurer and its insured, and authorize the execution of a full release. If the uninsured motorist insurer does not agree within 30 days to arbitrate the uninsured motorist claim and approve the proposed settlement agreement, waive its subrogation rights against the liability insurer and its insured, and authorize the execution of a full release, the injured person or, in the case of death, the personal representative may file suit joining the liability insurer’s insured and the uninsured motorist insurer to resolve their respective liability for any damages to be awarded . .

      . State Farm now suggests that it did not really reject the proposed settlement because in its letter to the Porters’ lawyer it also requested some verification of the Haenels’ coverage with Fireman’s Fund. If there was a real question about the Haenels’ coverage, State Farm, of course, would have been entitled to verification, but it is evident that the refusal to approve the settlement was premised upon the impression that the anti-stacking statute barred the Porters from pursuing an uninsured motorist claim against State Farm.

      . We note that the First and Third District Courts of Appeal have also declined to follow the rationale of the McLellan case in its interpretation of the anti-stacking statute. Burt v. State Farm Mut. Auto. Ins. Co., 383 S.W.2d 966 (Fla. 1st DCA 1980); Kokay v. South Carolina Ins. Co., 380 So.2d 489 (Fla. 3d DCA 1980).

      . The same rule would apply if the tortfeasor was underinsured since Section 627.727, Florida Statutes (1977), now defines an “uninsured motor vehicle” to include an underinsured one.


author: COBB, Judge.

text:
    In re the ESTATE of Walter F. RITZ, Deceased. Marie P. RITZ, Appellant, v. Robert W. RITZ and Edward J. Ritz, Appellees.
    No. 79-88.
    District Court of Appeal of Florida, Fifth District.
    June 18, 1980.
    Rehearing Denied July 15, 1980.

      Rollo E. Karkeet, Hernando, for appellant.
    J. Hardin Peterson, Jr., of Peterson, Myers, Craig, Crews, Brandon & Mann, P. A., Lakeland, for appellees.
   COBB, Judge.

The decedent, Walter Ritz, died testate on December 18,1978, survived by a widow, Marie Ritz, and two adult sons, Robert and Edward Ritz. The sons, who were residual beneficiaries under Article IV of the will, filed a petition seeking construction of the will, alleging that Article III thereof was ambiguous and confusing. Said article reads as follows:

I give and devise unto my beloved wife, MARIA P. RITZ, the exclusive right to occupy my residence adjacent to the In-verness Country Club for the term of her natural life. During the period of my wife’s occupancy of such residence, she shall be entitled to the exclusive use of all furniture and furnishings. Should my wife desire to sell such residence, or upon her death, the net proceeds from the sale of such residence shall be divided on the basis of Eighty Per Cent (80%) to my wife, MARIA P. RITZ; Ten Per Cent (10%) to my son, EDWARD J. RITZ; and Ten Per Cent (10%) to my son, ROBERT. W. RITZ. At the time of such sale my wife shall be entitled to such furniture and furnishings as she may select, and the balance of the sale proceeds of such furniture and furnishings shall be divided in the same manner as the net sales proceeds from my residence.

The probate court entered an order on August 1, 1979, striking Article III in its entirety from the will. The widow appeals this order.

The parties to this appeal are in agreement that the residence referred to in Article III was the homestead of Walter Ritz at the time of his death and that the widow takes all of the household furniture and furnishings therein by reason of Section 732.402, Florida Statutes. The personalty, therefore, does not enter into this dispute.

The issue in this case is whether the trial court erred in striking Article III from the will, which results in the homestead property descending by operation of law, vesting only a life estate in Marie P. Ritz and an unencumbered remainder interest therein in Robert and Edward Ritz.

The widow contends that the action of the trial court contravenes Article X, Section 4(c) of the Florida Constitution, which allows the devise of a homestead to an owner’s spouse in the absence of a minor child. She asserts that Article III of the will clearly expresses the intent of Walter Ritz that she receive an 80% interest in the remainder. She argues that since he could leave her 100% of the remainder, he could leave her 80% of it. The lesser is included in the greater. The controlling objective is to determine from the entire written instrument the testamentary intent of the testator and effectuate it, if possible, consistent with law and public policy. Mosgrove v. Mach, 133 Fla. 459, 182 So. 786 (1938); Elmore v. Elmore, 99 So.2d 265 (Fla.1957).

The appellees, on the other hand, disagree with the contention that the phraseology of Article III is clear and unequivocal. They maintain that, other than the attempted devise of a life estate to the widow (which was merely repetitive of the operation of the law), the remaining relevant portions of Article III are patently ambiguous. The reference to the percentages of money to be allocated to Maria, Edward and Robert in the event of sale, whether during Maria’s life or after her death, was an attempt to assign monetary values to the life estate, specifically devised to the widow in the first sentence, and to the remainder interests of the sons. These percentage allocations of net sale proceeds, say the appellees, logically cannot be construed as the enlargement of a life estate to a fee or as a power of sale. In regard to this latter point, appel-lees also cite the Mosgrove case, supra.

In Mosgrove, the testator gave his nurse a life estate in certain property with a remainder over to his nieces and nephews. He specified that the nurse, Mary Selina Mosgrove

shall have the right to sell, mortgage, pledge or dispose of any of the real or personal property bequeathed to her under this item of this my will in any manner in which she shall see fit, and use the proceeds thereof in any manner she shall see fit, it being my intention to bequeath her this her half interest of said residue of my estate without restrictions, save and except that if she should possess any of the same at the time of her death, it is my will that it be equally divided among my said nieces and nephews, (emphasis in original.)

Mosgrove v. Mach, supra 182 So. at 792. The Florida Supreme Court held that this provision gave the nurse only a power to dispose of her life interest, with no power to dispose of the fee. The court observed that the testator expressly could have enlarged the life estate granted, but that such enlargement could not be inferred in the face of the express preceding limitation of a life estate in the realty. Therefore, the reference to the right to sell was construed as limited to the life estate, and the court found no intent in the will that the tenant should be allowed to destroy or impair the vested remainder interests.

In the earlier case of Brown v. Harris, 90 Fla. 540, 106 So. 412 (1925), the Florida Supreme Court reached a similar conclusion. The testatrix had left property to her husband “to be used as he sees fit during his life, at his decease all that remains to be left to” certain individuals. The Supreme Court, reversing the trial court, held that such a provision did not confer upon the life tenant the power to convey the fee-simple title to the real estate. The will gave the husband a life estate and no more.

In the instant case, the first sentence in the disputed article clearly attempts to grant to the widow a life estate in the homestead. The will then says that if she should desire to sell the residence, she should receive eighty percent of the proceeds. This distinguishes the instant case from Mosgrove because it is clear that the testator is referring to sale of the fee, not sale merely of the life estate, and the intent is that the remaindermen derive a specific benefit from such sale: 20% of the net proceeds. Brown is also distinguishable insofar as there is no reference therein to a sale by the life tenant, only to his use of the property.

We cannot agree with the appellant, however, that Article III can and should be construed as giving the widow a devise of 80% of the remainder interest. This proposed construction is based upon the reference to a sale upon the death of the widow in the third sentence. But if the testamentary intent had been to devise an 80% fee remainder interest to the widow, in addition to her life estate, what meaning must be ascribed to the repeated references to a sale and the allocation of the proceeds therefrom?

We believe that the testamentary intent is clear that, during the lifetime of Marie P. Ritz, she should have the right to live in the residence and she is granted an unrestricted and exclusive power to sell the fee title to the residence, provided that 20% of the proceeds from such sale go to the two remain-dermen. See Roberts v. Mosely, 100 Fla. 267, 129 So. 835 (1930); Green v. Barrow, 150 Fla. 594, 8 So.2d 283 (1942); Sanderson v. Sanderson, 70 So.2d 364 (Fla.1954).

The problem arises from the inclusion of the clause “or upon her death” in the third sentence of Article III. Upon Marie’s death, must the residence be sold and 80% of the money distributed to her estate? This is the argument of the appellant. But the will says nothing about a mandatory sale and nothing about the estate of Marie P. Ritz. If this enlargement of the life estate to a fee interest inuring to the benefit of Marie’s estate had been intended by Edward J. Ritz, it could have been accomplished by a definite provision. See Mosgrove, supra 182 So. at 791. In construing the will, the testator’s intent should be discerned from a consideration of the whole instrument. Brickell v. DiPietro, 145 Fla. 23, 198 So. 806 (1940). The will of Walter F. Ritz, taken as a whole, shows his clear intent that his widow, during her lifetime, be provided the residence and furnishings, or 80% of the sale price therefrom, and that, otherwise, his estate should pass to his two sons. Nothing in the will evinces a concern for testamentary or intestate heirs of Marie Ritz. To construe the isolated phrase “or upon her death” as an intention of Walter Ritz to divest his sons of 80% of their remainder interest in the homestead residence after the death of Marie is unwarranted.

On the other hand, we reject the argument of the appellees that the testator was precluded by Article X, Section 4(e) of the Florida Constitution from devising any interest in his homestead to his spouse less than the entire fee. Cf. In Re: The Estate of John W. Finch, 383 So.2d 755 (Fla. 4th DCA 1980). If he could devise to her the entire remainder interest, in addition to her life estate, then there is no reason he cannot bequeath to her the power to sell it and keep 80% of the proceeds from the sale. If the remaindermen can be divested of a 11 of their interest in the homestead by testamentary devise, how can they object to a testamentary disposition that, at the least, assures them of 20% of the proceeds from any sale during the life tenancy and, in the absence of such sale, the entire fee?

Insofar as the trial court found the clause “or upon her death” in the third sentence of Article III patently ambiguous and incomprehensible, we agree with him and sustain his striking of that clause. This was properly done by the process of construction of the language within the four corners of the will without the aid of extrinsic evidence. See 80 Am.Jur.2d Wills § 1288 (1975); Robinson v. Randolph, 21 Fla. 629 (1885). We disagree with the action of the trial court in striking the remaining provisions of Article III, although noting that only the third sentence has any dispositive effect, and reverse the order of August 1, 1979, to that extent.

We, therefore, hold that Article III of the will, in the absence of the stricken clause, gives to Marie P. Ritz, the life tenant of the residence, a power to sell the residence during her lifetime provided she gives ten percent of the net proceeds of such sale to Edward J. Ritz and ten percent to Robert W. Ritz. Upon her death, without exercise of this power, the remainder interests of Edward and Robert will give them unencumbered fee title to the residence property-

AFFIRMED in part; REVERSED in part.

DAUKSCH, C. J., and ORFINGER, J., concur.

      . See § 732.401, Fla.Stat.

      . Article X, Section 4(c) of the 1968 Florida Constitution provides that the homestead shall not be subject to devise if the owner is survived by spouse or minor child, except the homestead may be devised to the owner’s spouse if there be no minor child. See also, In Re Estate of James McCartney, 299 So.2d 5 (Fla.1974).


author: PER CURIAM.

text:
    Arthur M. NEWMAN, III, Appellant, v. STATE of Florida, Appellee.
    No. 80-462.
    District Court of Appeal of Florida, Fifth District.
    June 18, 1980.
    Rehearings Denied July 17, 1980.
    Arthur M. Newman, III, Lowell, pro se.
    Jim Smith, Atty. Gen., Tallahassee, and Horace Smith, Asst. Atty. Gen., Daytona Beach, for appellee.
   PER CURIAM.

The order of the trial court denying the petitioner’s motion and petition for relief under Rule 3.850 Florida Rules of Criminal Procedure is affirmed. Tillman v. State, 366 So.2d 1259 (Fla. 1st DCA 1979); Clements v. State, 340 So.2d 1182 (Fla. 4th DCA 1976).

This denial of relief is without prejudice to refile an adequate motion and petition.

DAUKSCH, C. J., and FRANK D. UP-CHURCH, Jr. and SHARP, JJ., concur.


text:
    J. Russell HORNSBY, Petitioner, v. The Honorable H. Eugene FISCHER, Circuit Judge, Broward County, Florida, Respondent.
    No. 79-181.
    District Court of Appeal of Florida, Fourth District.
    June 18, 1980.
    Rehearing Denied July 30, 1980.
    Michael E. Hamlin, Orlando, for petitioner.
    Jerry S. Luxenberg, Orlando, for respondent.
   LETTS, Chief Judge.

The petition for a writ of prohibition is denied in accordance with the Fifth District Court opinion issued simultaneously herewith, a copy of which is attached hereto.

MOORE, J., concurs.

ANSTEAD, J., dissents with opinion. Included with dissent to Opinion in Fifth DCA Case, 385 So.2d 1106.


author: LETTS, OAVIN K., Associate Judge. ANSTEAD, HARRY LEE,

text:
    Kathy Dianne NEWMAN, Appellant, v. James Russell HORNSBY, Appellee.
    No. 79-87/NT4-88.
    District Court of Appeal of Florida, Fifth District.
    June 18, 1980.
    Rehearing Denied July 30, 1980.
    See also, 385 So.2d 1106.

      James A. McCauley, Fort Lauderdale, for appellant.
    Michael E. Hamlin, Orlando, for appellee.
   LETTS, OAVIN K., Associate Judge.

We are concerned here with a dispute between two Circuit Courts, one in Broward County and the other in Orange, each exercising jurisdiction over a bastard child in a custody battle. Arising out of the orders of each circuit, we now consider on a consolidated basis both the mother’s appeal from the Orange County Circuit Court’s order granting inter alia, final custody to the father and also a petition for a writ of prohibition by the father to prevent the Broward Court from exercising any further jurisdiction over the controversy.

Apparently the child, aged four, had lived with the natural father since birth (without any legal custody order), but late on Christmas Eve his natural mother “abducted” him from the father’s home in Orlando and bore him away to Fort Lauderdale. Soon thereafter, the father filed a petition for a writ of habeas corpus in the Orange County Court in Orlando. Obtaining service on the mother, however, was not successful at first although her counsel immediately knew of the institution of the proceedings in Orange County. Thereafter while apparently avoiding the service, the mother, seeking to retain custody, went before the Broward Court in Fort Lauderdale which opined that because the child was physically to be found in Broward, it, and not the Orange Court, had jurisdiction. Each Court later enacted orders on the controversy, both of which are now challenged and before us. The foregoing is a somewhat simplified version of the procedural facts and maneuverings, but it is deemed adequate to allow for understanding and disposition of the dispute.

We begin by declaring that the father’s petition for a writ of habeas corpus should have been brought in Broward County rather than in Orange where it was filed. Section 79.09 of the Florida Statutes (1977) provides for a filing of such a petition “with the clerk of the circuit court of the county in which the prisoner is detained” (emphasis supplied), yet the petition filed failed to allege that the child was within the confines of Orange County and in fact he was not within it. We emphasize the word “prisoner” because while we appreciate that the word more commonly refers to one in-carcerated in a correctional institution or jail, the child, if abducted and held by force, fits the dictionary definition. Moreover, “there is no question but that habeas corpus is a proper proceeding to obtain custody of a child wrongfully withheld.” Crane v. Hayes, 253 So.2d 435, 440 (Fla.1971).

So far as we can determine from the basic encyclopedias, venue can lie in the county where the abduction took place after the child is no longer in it, only if a statute so permitting has been enacted (see 39 C.J.S. Habeas Corpus § 146, p. 985) and Florida has no such statute. Accordingly, in its absence, the venue for a habeas corpus proceeding is in the county where the child is to be found. State ex. rel. Wainwright v. Holley, 234 So.2d 409 (Fla.2d DCA 1970). The father argues that the venue question has here been waived because the mother neither appeared at, nor challenged the Orange County petition. We agree with that contention; however, the situs of a habeas corpus proceeding appears to us to be more than a matter of venue; it is one of jurisdiction. True, Florida has little law on the subject, but the general law appears to be that a circuit court (or its equivalent), in a habeas corpus proceeding, lacks jurisdiction to issue such a writ where it is to be executed beyond its territorial jurisdiction. Schlanger v. Seamans, 401 U.S. 487, 91 S.Ct. 995, 28 L.Ed.2d 251 (1971), reh. den. 402 U.S. 990, 91 S.Ct. 1671, 29 L.Ed.2d 56 (1971); Strand v. Schmittroth, 251 F.2d 590 (9 Cir., 1957), cert. den. 355 U.S. 886, 78 S.Ct. 258, 2 L.Ed.2d 186 (1957); Crouch v. State, 24 Utah 2d 126, 467 P.2d 43 (1970); Ex parte Gladstone, 9 N.J.Super. 508, 75 A.2d 641 (1950); Accardo v. State, 39 Ala. App. 453, 102 So.2d 913 (1958), cert. den. 268 Ala. 293, 105 So.2d 865 (1958); Kelly v. Gerdink, 222 Ind. 105, 52 N.E.2d 43 (1944); People v. City Court of East St. Louis, 338 Ill. 363, 170 N.E. 210 (1930); McLeod v. McLeod, 88 Miss. 722, 42 So. 873 (1907); but see, Collins v. Land, 213 S.W.2d 265 (Tex. Civ.App.1958). Needless to say, jurisdiction cannot be waived. Florida Rule of Civil Procedure 1.140; see Seaboard Air Line Co. v. Gay, 68 So.2d 591, 592 (Fla.1953); Corbett v. McDonald, 206 So.2d 407 (Fla.4th DCA 1968); State v. Anderson, 164 So.2d 265 (Fla.2d DCA 1964); State v. Heffernan, 128 So.2d 892 (Fla.3d DCA 1961).

We have not overlooked the Florida case of State ex. rel. Wainwright v. Holley, supra, which suggests by way of dicta that Section 79.09 is only a venue statute. However, the issue in that case was not venue versus jurisdiction and we remain convinced that the question of jurisdiction controls us here. In this connection we further note that Article Five, Section Four of the Florida Constitution only permits a District Court of Appeal to issue habeas corpus writs within the territorial jurisdiction of the court i. e. within its district. There is no corresponding statement with regard to the circuit courts but we cannot but conclude that they likewise must be limited to their territorial jurisdiction, i. e. their circuits.

Passing now to the present status of this controversy, we note that the Broward Court took jurisdiction over the mother’s petition for custody while the child was in Broward County. We are of the opinion that this was proper and we confirm and uphold the jurisdiction of the Broward Court which has meanwhile granted temporary custody of the child to the father.

Having so concluded, we recognize that the question of permanent custody, visitation rights and any name change remain unresolved and we direct that these matters be addressed in the Broward proceeding. We make no comment as to the eventual outcome of these. However, the allegations made against the mother in the Orange County proceeding under oath, are shocking indeed and if established must call into serious question her fitness to have custody.

We therefore deny the father’s petition for a writ of prohibition by way of a separate order issued simultaneously herewith and direct that the proceedings in Broward go forward to a final conclusion upon the basis of the unappealed temporary custody order entered in the Broward Court.

We also reverse in its entirety the final order of the Orange Circuit Court dated January 9th, 1979.

REVERSED IN ACCORDANCE HEREWITH.

MOORE, JOHN H., II, Associate Judge, concurs.

ANSTEAD, HARRY LEE, Associate Judge, dissents with opinion.

ANSTEAD, HARRY LEE,

Associate Judge, dissenting:

Although I agree with the majority’s opinion as to jurisdiction in habeas corpus proceedings brought to secure the immediate custody of a child, I do not agree that the Orange County Circuit Court was without jurisdiction to consider the petition for child custody filed by the father.

The facts of this case are accurately summarized in the majority opinion. As noted therein the child in question had resided since birth with his father in Orange County before the appellant, mother “abducted” him on Christmas Eve, 1978. On January 3, 1979, the father filed in the Orange County Circuit Court a pleading entitled: “Petition for Writ of Habeas Corpus, Custody and Other Relief.” That sworn petition stated that the father had enjoyed the custody of the child with the agreement of the mother and contained other detailed allegations as to the child’s history and circumstances. The petition alleged that it would be in the best interests of the child if his temporary and permanent custody were awarded to the father. In addition the petition sought a writ of habeas corpus to secure the immediate return of the child whose then whereabouts were alleged to be unknown.

Subsequently the mother and child were located in Broward County and service of process of the Orange County proceedings was made upon her on January 5, including service of a writ of habeas corpus which itself contained a notice of hearing as to the custody of the child scheduled for January 8, 1979. Before the mother was served, she filed, on January 5, a petition for custody in the Broward County Circuit Court which was served on the father on January 10, 1979.

Under these circumstances it is clear that the Orange County Circuit Court acted first to acquire jurisdiction on the issue of custody. The fact that a request for a writ of habeas corpus was included in the laundry list of relief sought by the father does not change that fact. The father’s petition for custody is just as sufficient as the petition for custody filed by the mother, but his petition was filed first and service obtained first. There is no dispute but that the child was born and raised to his present age in Orange County and that the Circuit Court there was the proper court in which the father could file a petition for custody. Therefore, I would hold that the custody dispute should be resolved in Orange County-

Notwithstanding my views as to the proper forum, I do agree that the Orange County court committed fundamental error in entering a final judgment awarding permanent custody after the hearing of January 8. The mother was entitled to her full 20 days to respond to the father’s petition and to all of her other procedural due process rights before the trial court could enter a permanent custody order. At most the trial court was empowered to decide the issue of temporary custody at the January 8 hearing. Accordingly, I would reverse the final judgment and remand the case for further proceedings on the father’s petition. I would grant the father’s petition for writ of prohibition.

      . These cases were consolidated before the creation of the Fifth District. We therefore, as Judges of the Fourth District will issue a separate opinion on the petition for writ of prohibition.

      . See Art. V, § 1, 5, 7 and 10 of the Constitution for further inferences in support of this conclusion.

      . Martinez v. Martinez, 153 Fla. 753, 15 So.2d 842 (Fla.1943).


author: ROBERT P. SMITH, Jr., Judge. WENTWORTH, Judge,

text:
    Arthur YORK, Appellant, v. Evelyn SMITH, personal representative of The Estate of Phillip L. York, Deceased, Appellee.
    No. MM-488.
    District Court of Appeal of Florida, First District.
    June 24, 1980.
    Rehearing Denied July 29, 1980.
    Michael T. Callahan and Ronald W. Brooks, of Brooks & Callahan, Tallahassee, for appellant.
    Harry H. Mitchell and George S. Reynolds, III, Tallahassee, for appellee.
   ROBERT P. SMITH, Jr., Judge.

Arthur York, who offered for probate the putative will of his brother Phillip, appeals from the circuit court order denying the instrument admission to probate. The instrument is wholly in Phillip’s handwriting and was executed by him on February 26, 1974. He acknowledged his signature before subscribing witnesses three years later, on March 22, 1977, not quite two months before he died. In a scarce eight lines, the putative will bequeaths Phillip’s entire estate to his brother Arthur, except two guns designated for brother Clem, and stated:

Nothing goes to Evelyn Dennis York [Phillip’s former wife] or Julie whom I do not think is my child .

The circuit court held that the will and a contemporaneous letter by Phillip to Evelyn and Julie show the will was procured or induced by a mistake, that is, Phillip’s conception “that he was not the father of his only child.” But for that mistake, the court held, the decedent would have made a different disposition of his property. We must disagree with the conclusion that, for such a mistaken conception, Phillip’s will must be denied probate. Absent an insane delusion which destroys testamentary capacity, the testator’s mistaken conception of some fact extrinsic to the document, inducing a particular testamentary disposition, does not vitiate the will. Forsythe v. Spielberger, 86 So.2d 427 (Fla.1956); 1 Page on Wills, Sec. 13.11 (Bowe-Parker ed. 1960); see also In re Estate of Supplee, 247 So.2d 488 (Fla. 2d DCA 1971), cert. den., 250 So.2d 275 (Fla.1971); Section 732.5165, Florida Statutes (1975).

It remains to be determined whether the circuit court’s order should be affirmed on other grounds. We find substantial competent evidence supporting the court’s findings that the testator possessed testamentary capacity on the date he executed his will, February 26, 1974, but that he lacked testamentary capacity on the date he acknowledged his signature before the attesting witnesses, March 22, 1977. By cross-appeal appellees urge that the testator’s testamentary incapacity on the latter date vitiates the will, because the will was not fully effective until the testator, who signed the will without any witness, acknowledged his signature to attesting witnesses. The trial court rejected that contention as a matter of law. We agree.

There is no claim here that the testator lacked mental capacity to acknowledge his signature. In Florida a testator need not publish his will to the attesting witnesses, nor need he declare the instrument to be his will; and the attesting witnesses need not vouch for the testator’s testamentary capacity, nor even know the instrument they sign is a will. In re Estate of Beakes, 306 So.2d 99 (Fla.1974); In re Estate of Wognum, 279 So.2d 66 (Fla. 4th DCA 1973), cert. den., 284 So.2d 216 (Fla.1973). From this we conclude that testamentary capacity is required of the testator only when he makes his will, that is, when he signs it as his will, and that his testamentary incapacity when he later acknowledges his signature is inconsequential. Phillip York’s will may not be denied probate on this ground.

The contestants also urged to the circuit court that the will be denied probate because of fraud on the part of the subscribing witnesses and the principal beneficiary, Arthur York. Though the fraud issue was tried, the circuit court made no findings on the issue, having disposed of the case on other grounds. On remand, the trial court should enter its findings and conclusions on that issue, which will determine whether the instrument is to be admitted to probate.

REVERSED.

LARRY G. SMITH, concurs.

WENTWORTH, J., dissents with opinion.

WENTWORTH, Judge,

dissenting.

I respectfully disagree in part with the opinion of the court, although I agree that the question of testamentary capacity depends upon the testator’s competence at the time the will is executed. In re Wilmott’s Estate, 66 So.2d 465 (Fla.1953). Section 732.502, Florida Statutes, establishes the formalities under which “[e]very will must be . executed ” (e. s.), and requires that the testator’s execution shall be by signature in the presence of attesting witnesses or acknowledgement of prior signature in such presence. § 732.502(l)(b), Florida Statutes. In the present case the testator’s previously signed holographic will was not “executed” as that term is defined by § 732.502 until it was acknowledged before the attesting witnesses, and the document was not subject to judicial enforcement as the testator’s will until so executed.

Our Supreme Court, in In re Estate of Watkins, 75 So.2d 194 (Fla.1954), indicated that under a prior statute the legislature had required an “attesting witness” in order that someone be present “for the purpose of seeing that the will is executed by a legally competent testator . . . .” The fact of legal competence at the moment of execution by acknowledgement is of course determinable on proof other than the witnesses’ observation, but that does not alter the necessity for showing that such capacity existed at the time when the critical acknowledgement was witnessed. Cf. In re Estate of Kavcic, 341 So.2d 278 (Fla. 1st DCA 1977); In re Estate of Beakes, 291 So.2d 29 (Fla. 3rd DCA 1974); In re Estate of Wognum, 279 So.2d 66 (Fla. 4th DCA 1973); In re Leo’s Will, 12 Fla.Supp. 61 (Fla.Dade Co.Cir.Ct.1958). I believe that this rationale is also applicable to § 732.502, Florida Statutes, and requires testamentary capacity at the time the testator acknowledges the will before attesting witnesses, when such acknowledgement is the method by which execution of the will is accomplished. If the testator in the present case could not legally have signed the will at the time when it was first witnessed, I am unable to see how he could then legally accomplish the essential acknowledgement before witnesses to convert an ineffective signature into an effective signature at a time when, as already noted, the court concludes he was incompetent.

Since the testator in the present case lacked testamentary capacity at the time execution of the will was completed by ac-knowledgement, I would affirm the denial of probate to this instrument, although on other grounds than those relied on by the lower court. I agree entirely with the majority opinion on the issue of mistake.


author: GLICKSTEIN, Judge. DOWNEY, Judge,

text:
    STATE of Florida, Appellant, v. Carla Sue McCORD, Appellee.
    No. 78-2525.
    District Court of Appeal of Florida, Fourth District.
    June 25, 1980.
    Rehearing Denied Aug. 6, 1980.

      Jim Smith, Atty. Gen., Tallahassee, and John D. Cecilian, Asst. Atty. Gen., West Palm Beach, for appellant.
    Richard L. Jorandby, Public Defender, and Tatjana Ostapoff, Asst. Public Defender, West Palm Beach, for appellee.
   GLICKSTEIN, Judge.

The State appeals from an order suppressing physical evidence. Appellant argues the court erred in applying the doctrine of collateral estoppel. We affirm.

At 4:00 a. m. on January 6, 1978, Carla Sue McCord was detained by police officers while she and a male passenger were seated in a parked automobile in the vicinity of a Fort Lauderdale night club. McCord was arrested and charged with felony possession of a concealed firearm and narcotics. McCord was additionally charged with misdemeanor possession of narcotics and narcotic paraphernalia arising from the same incident and arrest. On July 10, 1978, the county judge entered an order suppressing the narcotics and narcotic paraphernalia covered by the misdemeanor charges, finding that the initial detention by the police officers was unlawful.

On the basis of those findings the circuit judge granted the defense’s motion to suppress physical evidence as to the felony charges. The circuit court held that it was bound by the findings of the county court based upon the doctrine of collateral estop-pel.

Appellant does not dispute the fact that the felony and misdemeanor charges arose from the same detention and arrest nor that the county court’s order of suppression was premised upon a finding that the initial detention by the police was unlawful. Appellant argues that collateral estoppel does not apply to the felony charges for two reasons: (1) the order of suppression involved only a question of law and, (2) collateral estoppel can be raised in a criminal case only if the defendant has been previously placed in jeopardy.

In deciding appellant’s first point, we start with the definition of “collateral estoppel” in Ashe v. Swenson, 397 U.S. 436, 90 S.Ct. 1189, 1194, 25 L.Ed.2d 469 (1970):

“Collateral estoppel” is an awkward phrase, but it stands for an extremely important principle in our adversary system of justice. It means simply that when a issue of ultimate fact has once been determined by a valid and final judgment, that issue cannot again be litigated between the same parties in any future lawsuit. Although first developed in civil litigation, collateral estoppel has been an established rule of federal criminal law at least since this Court’s decision more than 50 years ago in United States v. Oppenheimer, 242 U.S. 85, 37 S.Ct. 68, 61 L.Ed. 161. (Emphasis added).

Notwithstanding appellant’s contention that only a question of law was involved here, it is our conclusion that a determination as to the validity of a detention which resulted in a subsequent search is a mixed question of law and fact. Diaz v. State, 181 So.2d 351, 353 (Fla.2d DCA 1965). A fact, question or right distinctly adjudged in the original action cannot be disputed in a subsequent action, even though the determination was reached upon an erroneous view or by an erroneous application of the law. United States v. Moser, 266 U.S. 236, 45 S.Ct. 66, 67, 69 L.Ed. 262 (1924). Accordingly, appellant’s first point is without merit.

The second point raised by appellant questions whether jeopardy must have attached in the initial determination as a condition precedent to the application of the doctrine. We conclude that jeopardy is not a prerequisite to application of the rule.

Although Ashe held that collateral estop-pel is a part of the fifth amendment’s guarantee against double jeopardy. Ashe does not preclude collateral estoppel from being applied as a matter of due process required by the fourteenth amendment when double jeopardy is not involved.

We conclude that “jeopardy” is not the key to the application of the rule but that “final judgment” is. In other words, there must have been a previous final determination of the issue which the accused seeks to use as the basis for application of the rule.

For purposes of issue preclusion, “final judgment” includes any prior adjudication of an issue in another action between the parties that is determined to be sufficiently firm to be accorded conclusive effect. Factors supporting a conclusion that a decision is final for this purpose are that the parties were fully heard, that the court supported its decision with a reasoned opinion, and that the decision was subject to appeal or was in fact reviewed on appeal. United States ex rel. DiGiangiemo v. Regan, 528 F.2d 1262, 1265 (2d Cir. 1975).

In this instance the defendant moved to suppress the evidence, whereupon the county judge determined that appellee’s detention was invalid. Although the adverse decision was appealable the State chose not to appeal. When appellee’s motion to dismiss the information for lack of evidence was also granted, the State had the opportunity to appeal and did not do so. Therefore, we conclude that the action taken in the county court constituted a “final judgment” within the definition of DiGiangiemo.

The rationale for permitting the accused in a criminal case to rely upon collateral estoppel is recited in DiGiangiemo:

While it was unnecessary to determine in United States v. Oppenheimer, supra, whether application or collateral estoppel on behalf of a criminal defendant was constitutionally required, overly sensitive ears are not needed to detect due process overtones in Mr. Justice Holmes’ statement, 242 U.S. at 87, 37 S.Ct. at 69:
It cannot be that the safeguards of the person, so often and so rightly mentioned with solemn reverence, are less than those that protect from a liability in debt.
We do not suggest that collateral estop-pel is similarly mandated by due process in civil cases. But, as has been said, “[t]he weight of the harassment factor is considerably increased in the criminal law,” . . . because of the disparity usually prevailing in resources between the state and the defendant and the strain of a second prosecution even if not for the identical offense. . . .Id. at 1265-66.

Other jurisdictions have applied the rule in non-jeopardy cases. Laughlin v. United States, 344 F.2d 187 (D.C.Cir.1965), held that the government was collaterally es-topped from relitigating the issue of consent where that issue had been previously determined on a motion to dismiss in a prior criminal proceeding against the same defendant. The Supreme Court of Illinois in People v. Williams, 59 Ill.2d 557, 322 N.E.2d 461 (1975), applied collateral estoppel where there had been an adjudication prior to trial on defendant’s motion to suppress. The trial court had previously held that the defendant’s statements were inadmissible and the State subsequently sought to relitigate the issue in a pre-trial suppression hearing under a second indictment. The court specifically noted that the State had the right to appeal the first order and chose not to do so. See also State v. Gonzalez, 75 N.J. 181, 380 A.2d 1128 (1977).

There are two Florida cases which require discussion. Suiero v. State, 248 So.2d 219 (Fla.4th DCA 1971), held that failure to raise the issue of collateral estoppel in the trial court constituted a waiver of that defense. By way of dictum, we said that even if the defense had been raised, it would have been rejected. The defendant argued for the first time on appeal from his criminal conviction that evidence should have been suppressed because the trial court in a prior criminal proceeding conducted in another county had suppressed the same evidence. To the extent that the dictum in Suiero conflicts with our present opinion, we recede therefrom.

In State v. Kling, 335 So.2d 614 (Fla.2d DCA 1976), the Second District reached the same conclusion argued by appellant. The court held that an accused must have been placed in jeopardy to be entitled to rely upon collateral estoppel. Our decision is in apparent conflict. Nevertheless, for the reasons recited herein, we affirm the order of the trial court.

AFFIRMED.

DOWNEY and HURLEY, JJ., concur.

DOWNEY, J., concurs specially with opinion.

DOWNEY, Judge,

concurring specially:

I concur entirely in the reasoning and conclusion reached in the opinion authored by Judge Glickstein. However, I would add that collateral estoppel should be applied to the case at bar as a matter of due process and does not require the attachment of jeopardy as a condition precedent to application of the doctrine. United States ex rel. DiGiangiemo v. Regan, 528 F.2d 1262 (2d Cir. 1975). In addition, apart from the due process argument, there are sound policy reasons for the application of collateral estoppel in this factual setting. The doctrine of collateral estoppel had its genesis in civil cases and was intended to prevent repetitious litigation of issues by the same parties. Laughlin v. United States, 344 F.2d 187 (D.C.Cir.1965). Like the related doctrine of res judicata, which holds that a judgment is a bar to the prosecution of a second action between the same parties based on the same claim or cause of action, collateral estoppel was aimed at precluding the reconsideration of issues in a different cause between the same parties. Why should a party be allowed to relitigate an issue as to which, you might say, he has had his day in court? It would seem the doctrine should be more attractive from a policy standpoint than ever before, what with the overwhelming volume of litigation existent in most of our courts.

I see no reason whatsoever why the doctrine of collateral estoppel should not be applied in criminal cases. This concept is not novel and has been utilized by a number of federal courts,, particularly where, as here, the state had the opportunity to appeal the adverse ruling in the case which originally considered the issue.

      . There is authority for the proposition that the rule may be applied to adjudicated questions of law. United States v. Kramer, 289 F.2d 909, 913 (2d Cir. 1961), held: “Appellant’s alternative contention rests on that important principle of the law of judgments, unhappily dubbed ‘collateral estoppel,’ which ‘operates, following a final judgment, to establish conclusively a matter of fact or law for the purposes of a later law suit on a different cause of action between the parties to the original action.’ ” See also State v. Gonzalez, 75 N.J. 181, 380 A.2d 1128 (1977).

      . In a civil proceeding, Parklane Hosiery Co., Inc. v. Shore, 439 U.S. 322, 99 S.Ct. 645, 649, 58 L.Ed.2d 552 (1979), the Supreme Court said:
      Collateral estoppel, like the related doctrine of res judicata, has the dual purpose of protecting litigants from the burden of reliti-gating an identical issue with the same party or his privy and of promoting judicial economy by preventing needless litigation.

      . Cook v. State, 281 Md. 665, 381 A.2d 671, 676 (1978), did not apply the rule, distinguishing People v. Williams, 59 Ill.2d 557, 332 N.E.2d 461 (1975), on the basis of the State’s right to appeal from the suppression order.

      . The facts in the two cases are distinguishable. In State v. Kling, 335 So.2d 614 (Fla.2d DCA 1976), there was no showing in the record that the drugs and paraphernalia covered by the misdemeanor charges were located with the drugs and paraphernalia upon which felony charges were based. The court said, however, that even if the drugs and paraphernalia were all in the same location, the absence of prior jeopardy still precluded application of the rule.

      . Sealfon v. United States, 332 U.S. 575, 68 S.Ct. 237, 92 L.Ed. 180 (1948); United States v. Oppenheimer, 242 U.S. 85, 37 S.Ct. 68, 61 L.Ed. 161 (1916); Travers v. U. S., 335 F.2d 698 (D.C.Cir.1964); United States v. DeAngelo, 138 F.2d 466 (3d Cir. 1943).


author: HERSEY, Judge. MOORE, Judge,

text:
    Joseph G. DUBOWITZ and Ida Dubowitz, his wife, Appellants, v. CENTURY VILLAGE EAST, INC., a Florida Corporation, and Cen-Deer Communities, Inc., a Florida Corporation, Appellees.
    No. 79-239.
    District Court of Appeal of Florida, Fourth District.
    June 25, 1980.
    Rehearing Denied July 29, 1980.
    Michael J. McNerney and Keith A. Gasman of Brinkley, McNerney & Morgan, Fort Lauderdale, for appellants.
    Gerald Mager and Linda K. Raspolich of Abrams, Anton, Robbins, Resnick, Schneider & Mager, P.A., Hollywood, for appellees.
    Jim Smith, Atty. Gen. and Thomas M. Pflaum, Asst. Atty. Gen., Tallahassee, as amicus curiae.
   HERSEY, Judge.

Appellants filed a complaint against ap-pellees seeking injunctive and declaratory relief with respect to their rights as members of a condominium association which is the lessee of a clubhouse located near the condominium. The alleged right sought to be vindicated here is the right of certain members of the condominium association to assemble at the clubhouse for meetings of the Century Village Democratic Club. Ap-pellee, Century Village East, Inc., is the lessor of those facilities.

An emergency hearing on appellants’ motion for temporary relief was commenced in the trial court on June 8, 1978. This hearing was not completed and was continued until September 7. At the conclusion of the September 7th hearing, the trial court announced that it was dismissing the cause. The record discloses that appellants’ only objection to this proposal was that there was no testimony on Section 713.122 [123], Florida Statutes (1979) other than on the question of the temporary injunction. The trial court then stated that it would enter an order denying any temporary injunctive relief and would take the remainder of the case under advisement. The court further requested memoranda on whether the suit should be dismissed, specifically in relation to Section 718.122 [123], Florida Statutes (1979). Appellants acquiesced in this procedure, never once objecting on the basis of insufficient notice or on any other grounds. Further, appellants never contended to the trial court that they actually had additional evidence to present. Finally, when afforded the opportunity to address the propriety of dismissal of their complaint by memorandum, appellants chose not to object to the procedure suggested by the trial court.

Since the remedies requested by appellants were cognizable in equity, the trial court was called upon to exercise its equitable powers. The chancellor in a court of equity is empowered to enter judgment at any time during a proceeding when it clearly appears that upon all questions of fact before him, judgment should be entered as a matter of law. Marsh v. Sarasota County, 97 So.2d 312 (Fla.2d DCA 1957).

Further, objections to procedural matters not raised in the lower court cannot be raised on appeal and a party who fails to make a timely objection to what he perceives to be procedural irregularities will be deemed to have waived the same by acquiescence. Marsh v. Sarasota County, Id. We have no question of due process here.

Accordingly, in the instant case, the trial court had the authority to dismiss the case and any objections to possible irregularities of procedure, including insufficient notice, were waived. We therefore affirm.

AFFIRMED.

LETTS, C. J., concurs.

MOORE, J., dissents with opinion.

MOORE, Judge,

dissenting:

I respectfully dissent. In my opinion appellants should have an opportunity to present evidence on the issues involved after those issues are created by a responsive pleading to the appellants’ complaint. I would reverse for further proceedings.


author: Hersey, Judge.

text:
    John SERKO, Appellant, v. Vivian A. SERKO, Appellee.
    No. 79-1258.
    District Court of Appeal of Florida, Fourth District.
    June 25, 1980.
    Rehearing Denied Aug. 5, 1980.

      Lewis A. Fishman of Shaffner & Shaff-ner, P. A., Fort Lauderdale, for appellant.
    John C. Rayson of Edwards & Dubner, Sherman & Rayson, Fort Lauderdale, for appellee.
   Hersey, Judge.

The parties were formerly residents of New Jersey where they were divorced in 1961. The husband was ordered to pay $65.00 per week alimony which was subsequently modified by agreement to $45.00 per week. Alimony payments were made until 1975 at which time the husband had become a resident of Florida. In 1977 the wife filed a complaint in Florida seeking to establish the New Jersey judgment as a Florida judgment and to obtain payment as arrearages. Summary final judgment was entered on March 5,1979 which contained a finding that the New Jersey divorce judgment was entitled to full faith and credit and declared the New Jersey divorce judgment a Florida judgment. The judgment further stated that “. . . the husband shall be liable under said judgment for alimony in the amount of $45.00 per week from October 12, 1965 for the duration of the obligation unless modified by a court of competent jurisdiction or by the written agreement of the parties.” The summary final judgment was not appealed, and is not now before us for review. In order to avoid confusion that might otherwise be engendered by our holding in this case, however, we deem it appropriate to add a word about our interpretation of the effect of that judgment. We find that the phrase “unless modified by a court of competent jurisdiction” simply refers to the fact that the continuing obligation in the New Jersey judgment remains subject to retrospective modification by the New Jersey court. The summary final judgment did not purport to determine that there were arrearages due and payable under Florida law. In fact, there were no arrearages until 1975. And, of course, the power of the New Jersey court to modify the alimony obligation does not extend to the Florida judgment and to periods of time subsequent to entry of that judgment. We need not speculate as to the effect of retroactive modification of the New Jersey judgment by a New Jersey court for a period also covered by the Florida judgment.

Subsequently, the wife filed a motion for contempt for failure to pay alimony for the period from July 16,1975 through March 1, 1979. The matter was referred to a general master whose report was accepted and adopted by the trial court requiring the husband to pay the arrearages. The husband appeals this judgment.

The issue we are called upon to determine is whether or not arrearages of alimony accruing under the judgment of a sister state are the proper subject of enforcement proceedings commenced in Florida either by virtue of full faith and credit or comity.

The simple answer is that it depends: if the installments of alimony become fixed and vested in the wife under the law of the rendering state so that they are no longer subject to modification, then the judgment is entitled to full faith and credit in Florida. There is a presumption under Florida law that past due installments are vested; in other words, that the law of the sister state is the same as the law in Florida which presumption may be overcome in the ordinary manner. On the other hand, if the rendering court retains jurisdiction to modify alimony retroactively then the judgment is not final and is not entitled to full faith and credit. The remedy in such a case is to establish the foreign judgment as a Florida judgment by virtue of comity and to seek prospective enforcement only.

We have refrained from citation of authorities for all of the foregoing only because the entire subject was carefully laid to rest by our Supreme Court in the case of Sackler v. Sackler, 47 So.2d 292 (Fla.1950). That case established the primary rules which govern cases such as the one at bar.

The record discloses and we find that under New Jersey law the court retains jurisdiction to modify past due installments of alimony. Accordingly, the summary final judgment was correct in establishing the New Jersey judgment as a Florida judgment and proceedings for prospective enforcement under applicable Florida law are appropriate. On the other hand, the later judgment of the trial court appealed from here requires payment of arrearag-es which accrued prior to establishment of the judgment in Florida.

The master’s report accepted and adopted by the trial court relies on two Florida cases as authorizing a departure from the Sackler rule. West v. West, 301 So.2d 823 (Fla.2d DCA 1974); Lazar v. Lazar, 317 So.2d 854 (Fla.2d DCA 1975). We do not so interpret those cases.

This Court in Courtney v. Warner, 290 So.2d 101, 105 (Fla.4th DCA 1974), reaffirmed that Sackler remains a viable precedent in conflicts cases in the following language:

Unless the law of the state where the decree is rendered is such that said decree may be modified as to past due or accrued installments, such decree is entitled to full faith and credit. (Citations omitted).

Accordingly, we affirm the judgment of the trial court requiring the payment of arrearages from March 1, 1979 to the date of the final judgment from which this appeal is taken. We reverse that portion of the judgment which awards arrearages accruing prior to March 1, 1979. We affirm in all other respects and remand with instructions to conduct such further proceedings as may be required to comply with this opinion.

We have considered appellee’s motion for attorney’s fees and in view of our determination of the issues on appeal, the motion is denied.

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.

DOWNEY and HURLEY, JJ., concur.


author: OTT, Judge.

text:
    Constance S. BULLARD, Appellant, v. Foster L. BULLARD, Appellee.
    Nos. 79-1059, 79-1514.
    District Court of Appeal of Florida, Second District.
    June 25, 1980.
    Rehearing Denied July 16, 1980.
    Mark V. Silverio of Mershon, Sawyer, Johnston, Dunwody & Cole, Miami, for appellant.

      Monroe Gelb of Gelb & Spatz, Miami, for appellee.
   OTT, Judge.

The court below entered a final judgment dissolving the 25-year marriage of the parties, awarding the wife custody of a minor child, permanent periodic alimony, lump sum alimony, child support and attorney’s fees. She appeals and we affirm in part and reverse in part.

Doctor Bullard has not yet achieved quite the financial success of his counterpart in Canakaris v. Canakaris, 382 So.2d 1197 (Fla.1980), but then neither has he been in practice quite as long as Dr. Canakaris. In other respects, however, the cases are quite similar—a lengthy marriage to a wife who worked, helped him through medical school, assisted in his early practice and then turned full time attention to home and family; a very successful medical practice, which has provided a luxurious scale of living and has permitted the accumulation of substantial assets, all or almost all of which are in his name alone; the dissolution of that marriage, forcing a court into the unhappy task of deciding what share, if any, of the property acquired during the marriage and titled in the husband may lawfully be awarded to the wife.

It would not add anything to this opinion to itemize the property in question or its value, or to detail the division thereof and alimony (periodic and lump sum) ordered by the court below. It is sufficient to say that the judgment, by which Dr. Bullard retains sole ownership of most of the marital property, was rendered before Canakaris, supra, was handed down. That case approved and adopted a new philosophic concept for this state—that a wife who labors at home while her husband pursues material gain is a contributing partner in property acquired during the marriage, and can be equitably compensated by awarding her certain assets as lump sum alimony when the partnership is dissolved.

Canakaris, properly notes that this is not a community property state, and that there is no mandate for making an equal division of marital acquisitions in all cases; the matter of the division is to be left to the discretion of the trial judge, whose sole duty is to do equity under the circumstances presented by each individual case. Unless he abuses that discretion, his decision is not to be overturned.

Mrs. Bullard protests that she has been “shortchanged”, a colloquialism which has appeared in wives’ appellate briefs with predictable frequency since it surfaced in Brown v. Brown, 300 So.2d 719 (Fla. 1st DCA 1974), and was quoted in Canakaris, supra. We are inclined to agree with her, but we are of the opinion that the discretion of the trial judge was influenced, indeed circumscribed, by the pre-Canakaris views of the Florida courts. In all fairness to the able judge below, he should have an opportunity to reconsider this case in the light of the principles enunciated in Canakaris. See, also, Duncan v. Duncan, 379 So.2d 949 (Fla.1980) and Ingrain v. Ingrain, 379 So.2d 955 (Fla.1980). Accordingly, we reverse that portion of the judgment dealing with alimony.

Mrs. Bullard also challenges the portion of the judgment which ordered Dr. Bullard to pay her only $100.00 per month as support for the one child of the parties who is still a minor. We think the “token” order was within the discretion of the court. There was ample evidence that the father has been and is currently paying all of his daughter’s personal expenses (about $5,000 per year) and intends to continue to do so. He has committed ample funds for her education, and is maintaining the marital residence which is her home. We therefore do not believe that error has been shown. Naturally, this issue must be resolved on a case by case basis, and we merely point out that it is not always necessary to set a minimum standard of support. Such court-set mínimums have a way of becoming máximums. It is sometimes better to encourage natural parental devotion and generosity, rather than to stifle it by rigid orders that tend all too often to become “obligations” in a sense that should be alien to the parent-child relationship. Besides, if Dr. Bullard ever should actually shirk his parental duties, the courts are always open.

Mrs. Bullard also complains of the sleight-of-hand mathematics of her husband’s accountants, who presented a now-you-see-it, now-you-don’t view of his net worth by setting up certain “liabilities”, consisting of “reserves” of $240,000 for putting the four children through college and $200,000 to cover “recaptured taxes” should he prematurely dispose of his tax shelters. We doubt that the learned trial judge was taken in by such tactics and we are satisfied that the present judgment was in no way predicated on any contrived notion that Dr. Bullard is a candidate for the poorhouse.

We reverse the judgment insofar as it pertains to alimony, both permanent and lump sum, and remand the case for reconsideration in view of the philosophy articulated in Canakaris. In view of our disposition of the other matters, the award of fees to wife’s attorneys is vacated for reconsideration along with the matter of alimony. In all other respects the judgment is affirmed.

BOARDMAN, Acting C. J., and RYDER, J., concur.


text:
    Gregory Dean BRADLEY, Appellant, v. STATE of Florida, Appellee.
    No. MM-352.
    District Court of Appeal of Florida, First District.
    June 25, 1980.
    Rehearing Denied July 28, 1980.
    Michael J. Minerva, Public Defender, and Thomas S. Keith, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., and Doris E. Jenkins, Asst. Atty. Gen., for appellee.
   PER CURIAM.

Bradley appeals his judgment of conviction for sexual battery and sentence of fifteen years, alleging that the trial court erred in failing to dismiss with prejudice an amended petition because it was not filed within thirty days from the date the complaint was referred to the intake office as required by section 39.05(7), Florida Statutes (1977) and, secondly, in failing to classify appellant as a youthful offender under the guidelines of section 958.04(2), Florida Statutes (Supp.1978). We affirm both points.

Before the case was transferred for adult prosecution, an original, timely petition was filed which did not allege an element of the charge. Pursuant to an amended petition filed beyond the thirty-day period, the state cured the deficiency. We conclude that the petition was properly amended under Fla.R.Juv.P. 8.110(c). The petition was not “so vague, indistinct, and indefinite as to mislead the child, his parents), or custodian(s) and prejudice him (them) in the preparation of his (their) defense” so as to require dismissal under Rule 8.110(d). Rather, the petition was substantially complete and recited the correct statutory citation. Further, the amendment was made long before any hearing on the merits of the petition. See In the Interest of E.M., 362 So.2d 427 (Fla. 4th DCA 1978). Compare T.R. v. State, 364 So.2d 100, 102 (Fla. 1st DCA 1978).

As to the second point, sentencing Bradley under the Youthful Offender Act would be an impermissible retroactive application of the Act. Art. X, § 9, Fla. Const.; State v. Pizarro, rev’d on rehearing, 383 So.2d 762 (Fla. 4th DCA 1980); Allen v. State, 383 So.2d 674 (Fla. 5th DCA 1980). See also, Castle v. State, 305 So.2d 794 (Fla. 4th DCA 1974), aff’d, 330 So.2d 10 (Fla.1976); Washington v. Dowling, 92 Fla. 601, 109 So. 588 (1926); Sing v. State, 115 So.2d 773 (Fla. 1st DCA 1959), appeal dismissed, 129 So.2d 138 (Fla.1961), cert. denied, 366 U.S. 964, 81 S.Ct. 1924, 6 L.Ed.2d 1255 (1961).

AFFIRMED.

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