author: GRIMES, Acting Chief Judge.

text:
    Martha S. CONROY, Appellant, v. Andrew Jackson CONROY, L. Guerry Dobbins, Jr. and Walter W. Manley, II, Appellees.
    Nos. 79-576, 80-822.
    District Court of Appeal of Florida, Second District.
    Dec. 19, 1980.
    J. Russell Hornsby of Law Offices of J. Russell Hornsby, Orlando, for appellant.
    R. Philip Haddock, Lakeland, for appellee Andrew Jackson Conroy.

      L. Guerry Dobbins, Jr. and Walter W. Manley, II, pro se.
   GRIMES, Acting Chief Judge.

These are consolidated appeals from orders imposing a charging lien upon the proceeds of a judgment obtained by attorneys for their client and held by them in their trust account.

Martha S. Conroy retained the law offices of Walter W. Manley to represent her in dissolution proceedings. When Mr. Manley died, Walter W. Manley, II and L. Guerry Dobbins, Jr., his successors in interest in the law firm, continued to represent Mrs. Con-roy.

At the trial, Mrs. Conroy’s attorneys sought to have her husband pay her attorneys’ fees, and they furnished testimony concerning the amount of a reasonable fee. However, the court concluded that Mrs. Conroy had sufficient funds to pay her own attorney. The court determined that $16,-000.00 was a reasonable fee and ordered Mrs. Conroy to pay it.

Mrs. Conroy appealed certain aspects of the final judgment to this court. We affirmed the judgment in all respects except that we held that the court had no authority, absent a claim for a charging lien, to require a party to pay his or her attorney for representation during that proceeding. Conroy v. Conroy, 370 So.2d 1188 (Fla. 2d DCA 1979). Our opinion included a footnote which observed that subsequent to the entry of the final judgment, Mrs. Conroy’s counsel had made a claim for a charging lien, and we suggested that once our mandate had gone down, the attorneys would be able “to pursue this remedy or seek redress in a separate action.” 370 So.2d at 1189 n.1.

Following the issuance of our mandate, Mrs. Conroy’s attorneys did pursue their claim for a charging lien. During the course of the litigation, the sum of $19,-724.42 had been deposited in the attorneys’ trust account pursuant to stipulation of the parties to abide the outcome of the suit. The entitlement to these funds, which were the proceeds of a purchase money note and mortgage, was in dispute. The attorneys’ petition to establish a charging lien was directed to these funds because the trial judge had awarded them to Mrs. Conroy in the judgment of dissolution.

The court granted the attorneys’ petition and retained jurisdiction to determine the amount of the lien. Following another hearing, the court held that $19,300.00 was a reasonable fee for the attorneys’ services through the entry of the final judgment. After adding interest and costs and deducting the amount of an initial retainer, the court imposed a charging lien of $22,168.42 upon any of Mrs. Conroy’s funds in the possession of her attorneys.

The amount of the fee is not an issue in this appeal. Furthermore, while Mrs. Conroy disputes it, Mr. Manley testified that he made it clear to her that she would be obligated to her attorneys for a reasonable fee, though they would endeavor to have the court require her husband to pay it. Therefore, the significant issue on this appeal is not whether Mrs. Conroy owes the attorneys a fee but whether the court could impose a charging lien on the proceeds of the judgment held in trust for her in the absence of any agreement on her part that the fee would come from these proceeds.

Generally speaking, a charging lien gives an attorney the right to recover his fees and costs from the funds recovered through his services. Webster v. Sweat, 65 F.2d 109 (5th Cir. 1933); Royal Insurance Co. v. Simon, 20 Del.Ch. 297, 174 A. 444 (1934). Rather than depending upon the attorney’s possession of the property, it is founded upon the equitable notion that an attorney ought to receive his fees and disbursements out of the judgment he has obtained. Tracy v. Ringole, 87 Cal.App. 549, 262 P. 73 (1927); 7 Am.Jur.2d Attorneys at Law § 324 (1980). Florida has long recognized the right to an attorney’s charging lien. In re Barker’s Estate, 75 So.2d 303 (Fla.1954); Winn v. City of Cocoa, 75 So.2d 909 (Fla.1954); Carter v. Davis, 8 Fla. 183 (1858); Chancey v. Bauer, 97 F.2d 293 (5th Cir. 1938). Yet, in cases involving the recovery of real estate, our supreme court has held that before a court may impose a charging lien, there must have been an express or an implied agreement that the attorney would be entitled to recover his fee out of the proceeds of the judgment. Billingham v. Thiele, 109 So.2d 763 (Fla.1959).

In Stern v. Stern, 50 So.2d 119 (Fla.1951), the court refused to require the husband to pay his wife’s attorneys’ fees but awarded her attorneys a fee of $1,500.00 to be secured by a lien on her undivided half interest in the parties home. The home had been owned as tenants by the entirety, and the final judgment decreed that the ownership would thenceforth be as tenants in common. In reversing the judgment in part, the supreme court said:

We find no error in the fee awarded plaintiff’s solicitors but we fail to find support for that part of the final decree retaining jurisdiction of the cause to “award plaintiff’s solicitors a lien upon plaintiff’s undivided half interest in and to said real estate for any sums remaining due them on account thereof.” There are cases in which an attorney’s lien for services may be impressed and enforced in equity, as when his contract so provides or when he collects money and moves promptly to safeguard his lien, but such a lien ordinarily conveys no interest in the rem that may be enforced at law. Nichols v. Kroelinger, Fla., 46 So.2d 722, 723. The rule is that when a man seeks a divorce from his wife and she is without funds, he is required to bear the cost of the litigation including the wife’s solicitors’ fees. Since the record shows that the plaintiff was without means this case is amenable to that rule. The fact that the parties could not readjust themselves to it and make a success of the marriage venture does not relieve the man of the wife’s claim for the expenses of the litigation.

50 So.2d at 120. The court cited Stern with approval in Lamoureux v. Lamoureux, 59 So.2d 9 (Fla.1951), and later our court in Wilkerson v. Wilkerson, 179 So.2d 592 (Fla.2d DCA 1965), purported to follow the principle of Lamoureux in holding that the husband’s attorney was not entitled to a charging lien in the husband’s interest in certain corporate stock which had been the subject of the litigation.

Mrs. Conroy argues that this line of cases stands for the proposition that an attorney may never obtain a charging lien unless there is an agreement that the fee would be paid from the proceeds of the litigation. She also suggests that even if a prior agreement is not always required where the recovery of personal property is involved, these cases hold, at the very least, that there can be no charging liens imposed in divorce actions.

We do not construe these cases so broadly. In the first place, the attorney had actually made no recovery of property in the Stern case because the final judgment merely had the effect of converting a tenancy by the entirety into a tenancy in common. Moreover, the lien sought to be imposed was on real estate which can never be the subject of a charging lien in Florida anyway. Our study of Lamoureux leaves us with no clear conviction of what that case held. If the court was saying that the attorney had to bring a separate action at law to obtain his charging lien, the same court permitted the imposition of a charging lien ancillary to the primary action just two years later in Winn v. City of Cocoa Our holding in Wilkerson is distinguishable on the basis that there had never been a hearing on the issue of whether the attorney was entitled to a charging lien. Thus, that case was in much the same posture as was the present case on its first appearance before our court.

There is no Florida case which has specifically held that an agreement for the fee to be paid from the recovery is unnecessary for a charging lien on a judgment not involving real estate. However, a number of Florida decisions have upheld the imposition of a charging lien without mentioning such an agreement and under circumstances which suggest that there probably wasn’t any agreement. In re Barker's Estate; Winn v. City of Cocoa; Carter v. Davis; de la Cruz v. Brown, 338 So.2d 245 (Fla.3d DCA 1976); Worley v. Phillips, 264 So.2d 42 (Fla.2d DCA 1972); Kurzweil v. Simon, 204 So.2d 254 (Fla.3d DCA 1967). Accord, Chancey v. Bauer.

There seems to be little distinction between a judgment which recovers real estate on the one hand and a judgment for money or the recovery of personal property on the other. Therefore, it would not be illogical to hold that, as in the case of real estate, there must be an agreement to pay the fee out of the proceeds of the recovery before an attorney can obtain a charging lien on a judgment involving personal property. However, because we see so little to commend in the rule with respect to real estate, we are not inclined to extend it. Rudimentary fairness dictates that an attorney ought to be able to obtain his fee from property which he has recovered for his client when the very services for which he seeks to be paid were instrumental in securing that recovery. We hold that in order for an attorney to obtain a charging lien upon a judgment which involves personal property, it is unnecessary for him to prove that there was an agreement with the client for the proceeds to be paid from the recovery; Of course, the attorney must prove that he had a valid contract with the client to render services but this can be satisfied by a showing that when he undertook the representation, there was an implied understanding that the client would pay him a reasonable fee.

With respect to whether charging liens are inappropriate in divorce actions, we are impressed by the rationale of Campanello v. Mason, 571 P.2d 449 (Okl.1977), in which the Oklahoma Supreme Court said:

In the case before us, the action taken by attorney Mason in the bringing of the divorce case, has resulted in his client receiving free and clear title to the property awarded to her in the division of property. We see no reason to deny a lien on such property, merely because property was awarded in a divorce action. The theory of an attorney’s lien is to allow the attorney to insure the payment of fees due for his services. The mere fact that the “fruits of his services” were awarded in a divorce action, makes those “fruits” no less real or tangible than property acquired in other types of litigation. Nor does such a fact lessen thé skill and effort exercised on the part of an attorney.

571 P.2d at 451. See also Hubbard v. Ellithorpe, 135 Iowa 259, 112 N.W. 796 (1907). We perceive no impediment to the placing of a charging lien on Mrs. Conroy’s property in this case simply because it involved a dissolution proceeding.

AFFIRMED.

DANAHY and CAMPBELL, JJ., concur.

      . An argument might have been made that the monies held in the attorneys’ account were subject to a retaining lien. Attorneys’ retaining liens attach to the property of a client which comes into his attorney’s possession and can be used to enforce all debts owed by the client to the attorney regardless of whether the property related to the matter for which the money is owed to the attorney. Brauer v. Hotel Assocs., Inc., 40 N.J. 415, 192 A.2d 831 (1963). However, since the parties and the court below considered the matter only from the standpoint of a charging lien, we shall do likewise.

      . Cf. de la Cruz v. Brown, 338 So.2d 245 (Fla.3d DCA 1976), in which the court rejected the contention that the attorney must resort to a separate action at law in order to preserve the right to trial by jury.

      . A number of jurisdictions hold that an agreement to pay the fee out of the recovery is always a prerequisite to the imposition of a charging lien. Therefore, some courts have had to go to great length in trying to distinguish between agreements which provide for a certain percentage to be paid out of the fund recovered and those which merely call for the payment of a sum equal to a certain percentage of the fund recovered. See Gelfand, Greer,

        Popko & Miller v. Shivener, 30 Cal.App.3d 364, 105 Cal.Rptr. 445 (1973).

      . We do not pass upon the propriety of a charging lien upon alimony or support.


source: Caselaw Access Project

author: GRIMES, Judge.

license: Public Domain

text:
    ALLSTATE INSURANCE COMPANY, Appellant, v. Raymond BIDDY and Linda Biddy, his wife, Appellees.
    No. 80-1361.
    District Court of Appeal of Florida, Second District.
    Dec. 19, 1980.
    Rehearing Denied Jan. 27, 1981.
    Robert C. Ward of Adams & Ward, Miami, for appellant.
    H. Shelton Philips of Kaleel & Kaleel, P. A., St. Petersburg, for appellees.
   GRIMES, Judge.

This is an appeal from an order finding Allstate Insurance Company and one of its employees in contempt and as a consequence entering a default against Allstate.

On September 28, 1978, Raymond Biddy and his wife obtained a judgment in an automobile accident case against Fallon and Carr for $240,000 and against their liability insurer, Allstate, for $100,000, the limits of the Allstate policy. The Biddys then sued Allstate for the excess alleging that Allstate had failed to settle the case as the result of negligence and bad faith.

On August 31, 1979, the Biddys’ counsel served a notice of taking deposition on William Holloway, the regional vice president of Allstate for the region which includes Florida. The notice requested that Holloway produce Allstate’s claim files relating to the Biddy v. Fallon case. Allstate filed a motion for a protective order on the ground that Holloway knew nothing about the matter. The Biddys’ counsel responded by stating that he wanted to depose Holloway because he wanted the main officer of Allstate in Pinellas County to produce the records. He renoticed Holloway and again requested the same files. Allstate through Holloway and its attorney, A. C. Shields, then produced all of Allstate’s master file except for a posttrial report of its trial attorney, Don Bulleit, which it withheld on the ground that Bulleit prepared the report after the verdict.

On October 24, 1979, the Biddys’ counsel filed a motion to compel discovery, alleging that Allstate had failed to produce all of its files, including the field claims representative’s trial summary. The court granted the motion on January 10, 1980, and ordered production of all the documents specified in the notice of Mr. Holloway’s deposition. The court further ruled that if no other material existed, Allstate should file an affidavit so stating. Pursuant to the order, Mr. Shields and Herbert Varneran, Allstate’s claims agent in Wellsley, Massachusetts, who had handled the Biddy v. Fallon case, filed affidavits stating that additional material (Bulleit’s posttrial report) had now been furnished but that there was no field claims representative’s trial summary.

On February 26,1980, the Biddys’ counsel took the deposition of Wayne Dowling, a former employee of Allstate who had been the field claims representative monitoring the Biddy v. Fallon trial. Dowling produced a field claims representative’s trial summary. Mr. Shields then sought to withdraw his affidavit, and the Biddys filed a motion to compel discovery and to take further depositions. The court entered orders to show cause against Mr. Varneran, Mr. Holloway and Allstate for their failure to produce the field claims representative’s trial summary.

At the hearing on the show cause order, the evidence presented showed that Allstate handles suits in the district claims office in the district in which its insured resides. Thus, although the accident in the case of Biddy v. Fallon occurred in Pinellas County, Florida, the Massachusetts district office handled the case because Fallon resided in Massachusetts. The district claim office handling the claim opens what is known as a master file which should contain all correspondence, memoranda and documents pertaining to the case. If the district claim office handling the suit desires, it may request the district claims office in the area in which the suit is pending to monitor the case. When a district claims office is requested to do this, it opens an accommodation file.

Biddy v. Fallon was scheduled for trial in September 1978 in St. Petersburg. Just prior to trial, Mr. Varneran requested that the St. Petersburg district claims office designate a field claims representative to monitor the trial and report to him. Mr. Dowl-ing was the representative chosen. Varner-an testified that after the trial ended he told Dowling that since he had made notes of their several telephone conversations during the trial and since he was receiving a full trial report from Mr. Bulleit, there was no need for him to send a trial report. Varneran also said that he did not see Dowling’s trial summary until March or April of 1980 after Dowling’s deposition. He stated that under no circumstances should a trial summary be directed to personnel in St. Petersburg in a case handled by his office in Massachusetts.

Mr. Varneran further testified that in September 1979 he came to Florida to bring the master file to Mr. Shields for the Holloway deposition and to look at the accommodation file in the St. Petersburg office to see that everything in that file was in his master file. He found nothing there that was not in the master file. He then turned the master file over to Shields for delivery to the Biddys’ counsel. He said that while at the St. Petersburg office he did not check with Mrs. Galeener, the casualty unit manager, or with Robert Fletcher, the field unit manager, because he did not know that they had any connection with the Biddy file.

After Mr. Varneran had delivered the master file to Mr. Shields, Shields and Mr. Holloway went to the deposition and produced the file. Holloway testified that pri- or to this deposition he had no contact with the Biddy v. Fallon case. He stated that he understood that he was delivering a complete file.

Mr. Holloway further testified that after Mr. Dowling’s employment with Allstate had been terminated on February 9, 1979, Dowling had requested a conference to discuss a number of grievances he had against Allstate. This meeting was held in May 1979, at which Holloway, Walter Maulé, the southeastern zone security manager, Dowl-ing, and Katherine Carr, a friend of Dowl-ing, were present. Holloway said that the Biddy v. Fallon case was not discussed. Dowling testified that the case was not discussed by name, but Miss Carr stated that she thought the case was briefly mentioned as the Biddy case in the context of Dowling’s complaint that Mrs. Galeener and others had tried to set him up to be fired.

Mr. Holloway also testified concerning his receipt of a letter dealing with some of Mr. Dowling’s complaints against Allstate, to which a copy of Dowling’s trial summary was attached. The letter dated June 6, 1979, was from D. R. Matte, the Florida regional claims manager, to Maulé, with a copy to Holloway. Holloway said that since the letter had nothing to do with what he had discussed with Dowling and seemed to relate only to the claims division with which he was not involved, he did not think any more about it. Because the letter and the trial summary were not in his files, Holloway assumed that he threw them away, as he did with copies of most correspondence between two other department heads. He stated that he first heard of the existence of the Dowling summary after Dowling’s deposition and that he immediately directed the attorneys to furnish it. He said he didn’t question Mrs. Galeener before taking the master file, because it would not be standard procedure for her to have any file under the circumstances. He did not think of asking Dowling who was no longer employed by the company.

Sanford Shahan, a Florida regional claim analyst employed in the St. Petersburg office, testified that he had nothing to do with the Biddy v. Fallon file in the original suit. He said that his first contact with the Biddy v. Allstate excess case was when he received a call from K. D. Koenig, the home office staff counsel in Chicago, Illinois, who asked if an answer had been filed to the Biddys’ complaint. Koenig’s office had apparently become interested in the matter because of Allstate’s potential exposure in the excess suit. Shahan then received a letter from Koenig dated July 12, 1979, which contained the observation that any portion of the file subsequent to the verdict should not ordinarily be subject to discovery. Koenig requested that Shahan have the accommodation file separated into two files, one for preverdict and one for postverdict material. Shahan said he instructed Robert Fletcher to start the second file. Fletcher kept the two files for a few weeks and then gave the postverdict volume to Shahan, who kept it in his office. Shahan never read the file and he did not know anything about Mr. Holloway’s deposition or the dispute over the existence of the Dowling trial summary. When Mr! Shields came to see him after the Dowling deposition, he then looked in the postverdict volume and found Dowling’s trial summary.

Wayne Dowling testified that Mrs. Ga-leener had requested him to prepare the trial summary and address it to her. said that he thought this request was out of the ordinary, because under normal procedure the summary should have been directed to Mr. Varneran. He said he took Mrs. Galeener’s request to be a part of a continuing scheme to have him fired. He

Linda Galeener testified that she had requested Mr. Dowling to make a .summary. She thought that Mr. Fletcher had asked her to do so. She recalled receiving the report but said she did not know what she had done with it. She said that even though it would be normal procedure for the person in charge of the master file to receive a trial summary report, she did not remember forwarding it to Mr. Varneran. Fletcher, on the other hand, testified that he did not ask Mrs. Galeener for a trial summary.

Mr. Shields testified that he talked to both Mr. Varneran and Mr. Bulleit about any field claims representative’s trial summary that might have been prepared. Neither were aware of any, and Varneran advised him that he had not requested Dowl-ing to make one. Shields said he found the original of the summary at the Allstate office after Dowling’s deposition.

Following the hearing, the court entered an order in which it determined that Mr. Varneran was not guilty of contempt of court, that Mr. HollowSy was guilty of contempt which was technical in nature and required no penalties, and that Allstate was also guilty of contempt of court. The court struck Allstate’s answer to count I of Biddy’s amended complaint (compensatory damages) and entered a default judgment against Allstate on count I. It also awarded the Biddys attorney’s fees incurred in connection with the discovery proceedings.

The trial court’s order leaves us with three separate matters to consider: (1) the citation of contempt against Mr. Holloway, (2) the citation of contempt against Allstate, and (3) the penalties imposed upon Allstate.

In the order, the court made the following statement with respect to Mr. Holloway:

Had Holloway, with diligence, exercised the authority vested in him it can be concluded, absent collusion or concealment by subordinate employees, that the trial summary would have been produced. Holloway contends he acted reasonably in relying upon Allstate’s counsel to furnish to him the materials he was required to produce without the necessity of any additional effort on his part. His position in this regard is untenable. It was unusual for Holloway to appear at such a deposition. This fact, together with the fact that this action seeks substantial damages to be awarded against Allstate itself and that Holloway’s regional office was involved in the case is sufficient to put a reasonable man on notice of a necessity to investigate.

After a careful review of the evidence, we have reached the conclusion that it does not support the findings made by the trial court. Holloway had nothing to do with the Biddy v. Fallon case which was handled by the Massachusetts claims department with the help of the claims department in St. Petersburg with which he was not involved. It was Mr. Varneran who had charge of the Biddy v. Fallon case, and he did look in the accommodations file before turning the material over to Mr. Shields and Holloway. Moreover, Varneran later signed an affidavit along with Shields to the effect that there was no trial summary. Thus, it was reasonable for Holloway to assume that Allstate was producing all there was to produce. The fact that Holloway may have actually seen the trial summary several months earlier when he read a copy of a letter to which it was attached cannot alter this conclusion. The letter dealt not with the Biddy v. Fallon case but with a personnel matter concerning Mr. Dowling. Consequently, Holloway would not have had any reason to later connect the copy of the letter which he did not keep with the Biddy matter. Simply put, there was no evidence that Holloway wilfully ignored any order of the court. Therefore, the court was in error in holding him to be in contempt.

The court’s finding of contempt against Allstate is another matter. While there is evidence that no one employee of Allstate purposefully attempted to conceal the trial summary knowing that it should be produced, nonetheless Allstate must bear some responsibility for the fact that it had the trial summary in its possession and yet did not produce it after being ordered to do so. Perhaps it can be said that the failure to produce was linked to confusion among some of Allstate’s employees as to whether the trial summary, being a document prepared after the verdict in the Biddy v. Fallon case, was protected from discovery. Even so Allstate was under order to produce a category of documents which included the trial summary. While the employees of Allstate directly involved in the production of documents may not have had personal knowledge of the trial summary, they were on notice of the possibility of its existence. It is incumbent upon a company the size of Allstate to structure its organization in such a way that the right hand knows what the left hand is doing.

Finally, we reach the question of whether the sanctions imposed by the court for Allstate’s failure to comply with its discovery orders were proper. Clearly, the court’s award of attorney’s fees and costs was proper. Fla.R.Civ.P. 1.380(b)(2)(F). But what of striking Allstate’s answer to count I and entering default judgment, thereby exposing Allstate to liability for $140,000? As this court said some time ago in referring to the rule providing for the sanction of default where a party fails to make discovery,

[ The rule] is not penal. It is not punitive. It is not aimed at punishment of the litigant. The objective is compliance-compliance with the discovery Rules. The sanctions are set up as a means to an end, not the end itself. The end is compliance. The sanctions should be invoked only in flagrant cases, certainly in no less than aggravated cases, and then only after the court has given the defaulting party a reasonable opportunity to conform after originally failing or even refusing to appear. This is unmistakably the trend of judicial thinking in Florida on the “sanction” Rule.

Hurley v. Werly, 203 So.2d 530, 537 (Fla. 2d DCA 1967). See also Ramos v. Sanchez, 375 So.2d 51 (Fla. 2d DCA 1979); Travelers Insurance Co. v. Rodriguez, 357 So.2d 464 (Fla. 2d DCA 1978); In re Estate of Ulm, 345 So.2d 1099 (Fla. 2d DCA 1977). Viewed in light of this standard, it is clear that this portion of the court’s order cannot be sustained. Compliance had already been obtained because long before the default was entered, Allstate had delivered the trial summary into the hands pf the Biddys’ attorney.

The sanction of declaring a default should be reserved for the most egregious conduct. From a corporate standpoint, Allstate wilfully represented that it had furnished its entire file at a time when it had not exercised reasonable care to determine the existence of additional documents. But the record does not support the court’s conclusion that Allstate embarked upon a calculated effort to conceal Dowling’s trial summary. The most suspicious aspect of Allstate’s conduct involved the removal of the trial summary into a separate file. Yet, compliance with Koenig’s request to separate the postverdict papers from the balance of the file occurred before the Biddys’ counsel ever began discovery and at a time when the existence of the summary had not come into dispute. It is evident that Allstate’s failure to acknowledge the existence of Dowling’s trial summary stemmed from a bureaucratic breakdown rather than a conscious design to deceive the court or opposing counsel.

In summary, we reverse the adjudication of contempt against Mr. Holloway, the striking of Allstate’s pleadings, and the entry of a default judgment against Allstate. However, we affirm the adjudication of contempt against Allstate and remand the case in order that the trial judge may, if he determines it appropriate, impose a fine upon Allstate in an amount not to exceed $2,000. We also affirm the assessment of attorney’s fees, and further award the Bid-dys attorney’s fees incurred in connection with this appeal. On remand, the trial judge should set the amount of these fees to be paid by Allstate.

SCHEB and BOARDMAN, JJ., concur.

      . See Stone v. Travelers Ins. Co., 326 So.2d 241 (Fla. 3d DCA 1976), in which the court held that in a bad faith suit all materials in the insurance company’s file prepared after final judgment in the original action are subject to production upon a showing of good cause or pursuant to an order of court following an in camera inspection.

      . Part of the court’s indignance can probably be traced to testimony that shortly after Dowl-ing had submitted his trial summary, Mrs. Ga-leener directed him to omit two paragraphs concerning Allstate’s refusal to settle within the limits during the trial. However, the addition of these two paragraphs to the trial summary does not materially strengthen the Bid-dys’ excess claim, and Dowling fully developed Allstate’s refusal to settle when he gave his deposition. In any event, Allstate was held in contempt for failing to produce the trial summary, not for causing its alteration.


text:
    Olga K. BUBENIK, Appellant, v. Joseph G. BUBENIK, Appellee.
    No. 80-149.
    District Court of Appeal of Florida, Third District.
    Dec. 23, 1980.
    Rehearing Denied Feb. 13, 1981.
    William C. Lewis, Coral Gardens, for appellant.
    Stabinski, Funt, Levine & Vega and Regina F. Zelonker, Miami, for appellee.
    Before HUBBART, C. J., SCHWARTZ, J., and LILES, WOODIE A. (Ret.), Associate Judge.
   LILES, WOODIE A. (Ret.), Associate Judge.

Olga K. Bubenik and Joseph G. Bubenik were married September 12,1973. Prior to filing the instant petition for dissolution of marriage, Olga K. Bubenik consulted her attorney, William C. Lewis, and requested her husband to give Mr. Lewis a call so that the dissolution and other matters could go forward to resolution. Mr. Bubenik called Mr. Lewis and, by appointment, visited his office. He was shown a copy of a requested property settlement agreement. Mr. Bu-benik made several changes in the agreement, some of which were to the benefit of his wife. He thereupon signed it and the same day a petition for dissolution was filed.

When the matter came on before the trial judge for hearing, he specifically found that there was no fraud, deceit, duress, coercion or overreaching on the part of the petitioner or her attorney in arriving at the property settlement agreement and that there was no impropriety in the actions of Mr. Lewis. However, the trial judge set the agreement aside, holding that the husband did not understand his legal rights and obligations; that he should have had an attorney of his own choosing; and that, by virtue of his attitude during the trial, the husband was in a conciliatory frame of mind in hopes that his wife would reconcile with him.

Having set the property settlement agreement aside, the trial judge went on to find that the husband had a special equity in a parcel of property which had heretofore been agreed upon in the property settlement agreement.

The law is quite clear regarding the setting aside of property agreements when entered into by knowing adults. All of the cases we are aware of require an allegation . and proof of either fraud, duress, deceit, coercion, or overreaching on the part of the party obtaining the agreement. We know of no case where a property settlement agreement can be set aside on the grounds that one of the parties had not retained his or her own counsel at the time of the signing. The husband in the instant case was an airline pilot; he and his wife lived apart from each other at the time of the filing of the petition and had been so residing for some time. The agreement was rather sim-. pie, but the primary factor here is that the court found, and so stated in the final decree, that there was no impropriety on the part of either the wife or her attorney and then, for the reasons stated, set the agreement aside.

We therefore remand and reversé, with directions to the trial judge to enter his order, after appropriate hearing, based upon the principles set forth in the cases of Del Vecchio v. Del Vecchio, 143 So.2d 17 (Fla.1962); Pemelman v. Pemelman, 186 So.2d 552 (Fla. 2d DCA 1966); Belcher v. Belcher, 271 So.2d 7 (Fla.1972); Bailey v. Bailey, 300 So.2d 294 (Fla. 4th DCA 1974); Hicks v. Hicks, 313 So.2d 64 (Fla. 4th DCA 1975); Moss-Jacober v. Moss, 334 So.2d 89 (Fla. 3d DCA 1976); McGuire v. McGuire, 385 So.2d 151 (Fla. 3d DCA 1980).

Reversed and remanded, with directions.


author: PER CURIAM.

text:
    The STATE of Florida, Appellant, v. Luis AGUIAR, Appellee.
    No. 80-997.
    District Court of Appeal of Florida, Third District.
    Dec. 23, 1980.
    Rehearing Denied Feb. 13, 1981.
    Janet Reno, State Atty., and Theda R. James, Asst. State Atty., for appellant.
    Melvyn Kessler and L. Mark Dachs, Miami, for appellee.

      Before HUBBART, C. J., BARKDULL, J., and PEARSON, TILLMAN (Ret.), Associate Judge.
   PER CURIAM.

The trial court held that a defendant not present at the scene of a burglary or robbery, which results in the killing of a human being, could not be charged with first degree felony murder even though he may have participated in the plan for the commission of the underlying felonies.

We agree under the law of this State as it exists today. See: Sections 775.021(1), 776.011, and 782.04, Florida Statutes (1975 and 1976 Supp.), and see: State v. Dixon, 283 So.2d 1 (Fla.1973); Adams v. State, 341 So.2d 765 (Fla.1976); Hite v. State, 346 So.2d 771 (Fla.2d DCA 1978).

Therefore, the order of dismissal under review is affirmed.

Affirmed.


author: PER CURIAM. LETTS, Chief Judge,

text:
    Judy HENDERSON, Appellant, v. Timothy MACY and Michael Peterman, Appellees.
    No. 80-769.
    District Court of Appeal of Florida, Fourth District.
    Dec. 24, 1980.
    Rehearing Denied Feb. 9, 1981.
    Osborne Walker O’Quinn, Fort Pierce, for appellant.
    R. N. Koblegard, III, of Fee, Kobelgard & Teel, P. A., Fort Pierce, for appellee, Peter-man.
   PER CURIAM.

This appeal from a final judgment in a paternity action is presented to the Court as involving the issue of custody. We affirm the final judgment below, but in doing so, we note that the pleadings of the parties did not raise the issue of custody, and the final judgment entered by the Court did not rule on custody.

AFFIRMED.

BERANEK and HERSEY, JJ., concur.

LETTS, C. J. , concurs specially with opinion.

LETTS, Chief Judge,

concurring specially:

I agree with the majority opinion, but would observe that had the issue of custody been before the trial court this court would probably not have reversed any holding granting custody to the father. There is evidence in the record suggesting that this five year old child may have been severely beaten while in the mother’s care. Certainly she was badly injured.

The muddled record also suggests that the question of custody is, or was, pending before at least two other tribunals. It is to be hoped that the best interests of this child will be most carefully considered by all applicable courts and agencies if and when the issue of custody comes before them.


author: EVANS, VERNON W., Jr., Associate Judge. DAUKSCH, Chief Judge,

text:
    Bruno SOCHA and Joan Socha, his wife, and Nationwide Fire Insurance Company, Appellants, v. Mel GEIST d/b/a Mel’s Bulldozing and South Carolina Insurance Company, Appellees.
    No. 79-266.
    District Court of Appeal of Florida, Fifth District.
    Dec. 24, 1980.
    Rehearing Denied Jan. 28, 1981.

      Lester A. Lewis of Smalbein, Eubank, Johnson, Rosier & Bussey, P.A., Daytona Beach, for appellants.
    W. C. Airth, Jr., of Fowler, Williams & Airth, Orlando, for appellees.
   EVANS, VERNON W., Jr., Associate Judge.

This is an appeal from an order dismissing with prejudice appellants’ claim for contribution in a personal injury case.

The defendant in the original action, Bruno Socha, began construction on a residence in Volusia County, Florida. Socha acted as his own contractor for this construction. The plans included a basement for which Socha employed Melvin A. Geist, d/b/a Mel’s Bulldozing, to do the excavation.

After initial excavation and construction of the concrete block basement walls, work began on the backfilling of the basement walls by Mel’s Bulldozing, the third party defendant. Apparently because of premature backfilling, one of the walls collapsed and crumbled on the basement floor. On August 26, 1976, the three minor plaintiffs, Jeff Geist, Darrell Geist and Gary Geist, were in the basement either playing or cleaning up the debris. While the three minor children of Melvin A. Geist were in the basement, another wall collapsed resulting in injury to these children. The resulting medical expenses had totalled almost $11,000.00 by July 27, 1978.

Suit was filed against the homeowners, Joan and Bruno Socha, by Melvin A. Geist, individually and as father and next friend of the children. The complaint alleged ordinary negligence, failure to provide a safe place to work and violation of section 450.-061, Florida Statutes (1975). The Sochas answered and filed a third party complaint against Mel Geist, d/b/a Mel’s Bulldozing, and Nationwide Mutual Fire Insurance Company. Nationwide was alleged to have issued insurance policies to the Sochas covering the alleged occurrence.

Prior to the January 15,1979 trial date, a settlement was reached between the Geist plaintiffs, the Sochas and Nationwide. Total payment was $75,000.00 to the plaintiffs, with a contribution of $20,000.00 by the Sochas and $55,000.00 by Nationwide. The Sochas then moved for court approval of the settlement and this motion was granted on January 29, 1979. Under the terms of the order payment to the plaintiffs was as follows: Melvin A. Geist, individually $5,000.00; Jeff Geist, $4,900.00; Gary Geist, $4,900.00; and Darrell Geist, $60,200.00.

Mel Geist, pursuant to letters of guardianship and court order, then executed releases in his individual capacity, and as father and next friend of Jeff Geist and Gary Geist and as guardian ad litem for Darrell Geist. These releases pertained to all claims against the Sochas, Nationwide and Mel’s Bulldozing. Stipulations for dismissal with prejudice and orders thereon were then entered as to the claims of the plaintiffs against the Sochas and the Sochas against Nationwide.

The claim of the Sochas against Mel Geist, d/b/a Mel’s Bulldozing, remained pending. An amended third party complaint was filed on April 23, 1979, in which Nationwide joined as a third party plaintiff, and alleged that Mel Geist, d/b/a Mel’s Bulldozing, was negligent, that such negligence resulted in injury to the former plaintiffs, and that this negligence was a contributing or the sole proximate cause of the damages sustained by plaintiffs and paid by the Sochas and Nationwide. A subsequent amendment alleged that South Carolina Insurance Company insured Mel Geist, d/b/a Mel’s Bulldozing, for the negligence alleged in the amended third party complaint.

A motion to dismiss with prejudice with exhibits attached was filed on October 24, 1979. The court below, after hearing and taking the matter under advisement, entered an order dismissing the third party complaint with prejudice. This appeal ensued.

The right of appellants to seek contribution from Mel Geist, d/b/a Mel’s Bulldozing, and South Carolina Insurance Company is found in section 768.31(2), Florida Statutes (1977), as construed, in the context of the facts in this case, by Shor v. Paoli, 353 So.2d 825 (Fla.1978). See also, Withrow v. Woods, 386 So.2d 607 (Fla. 5th DCA 1980).

The right of appellants to seek contribution from Geist for sums paid to settle the claims of the Geist children is unquestionable. However, appellants may not seek contribution from Geist for the settlement made on behalf of his own personal claim arising out of the injuries to his children.

The order appealed from is affirmed as to the claim for contribution on the settlement paid to Melvin A. Geist, individually, but is reversed as to the claim for contribution for sums paid to settle the claims of the Geist children, and is remanded to the trial court for further proceedings in accordance with this opinion.

ORFINGER, J., concurs.

DAUKSCH, C. J., concurs in part, dissents in part with opinion.

DAUKSCH, Chief Judge,

concurring in part, dissenting in part:

While I concur with the majority in regard to the right of Socha to claim contribution from Geist, I disagree with the limitation on the claim. It is my opinion Socha should be allowed to seek contribution from Geist for all amounts paid, including the amount paid “in behalf of his own personal claim arising out of the injuries to his children.”

Of course, Geist may have a good defense to these contribution claims, or a portion of them, but that should not be decided at the pleading stage. It is my opinion that all tortfeasors should share in the payment to those injured, in proportion to their degree of negligence and for all damages. To say that Socha cannot file a claim for relief as to a portion of the damages is to limit the cause of action; thus a bar of a portion of the cause of action. As I said, there may very well be a defense, such as “accord and satisfaction” or “release” because of the settlement agreement, but that does not mean the complaint should be dismissed. Therefore, I respectfully dissent in part.


author: DANIEL S. PEARSON, Judge.

text:
    Michael DAVIS, Appellant, v. The STATE of Florida, Appellee.
    No. 80-1656.
    District Court of Appeal of Florida, Third District.
    Dec. 30, 1980.
    Rehearing Denied Feb. 13, 1981.

      Michael Davis, in pro. per.
    Jim Smith, Atty. Gen., for appellee.
    Before HUBBART, C. J., and HENDRY and DANIEL S. PEARSON, JJ.
   DANIEL S. PEARSON, Judge.

The appellant seeks review of the summary denial of his motion under Florida Rule of Criminal Procedure 3.850 to vacate the sentences imposed upon a judgment against him after a guilty plea to offenses committed on August 19, 1977. Count I of the information, upon which Davis was sentenced to a prison term of seven and one-half years, charged the commission of robbery, during the course of which Davis carried a firearm. Count II, upon which the trial court imposed a concurrent term of seven and one-half years, charged that Davis unlawfully possessed and displayed a firearm during the commission of such robbery. Count IY, upon which Davis was sentenced to a term of seven and one-half years to run consecutively to the sentences imposed on Counts I and II, charged kidnapping.

We reverse the order of the trial court denying Davis’ motion to set aside the prison sentence imposed on Count II upon a holding (1) the crimes of (a) robbery during the course of which the defendant carried a firearm, § 812.13(2)(a), Fla.Stat. (1979), and (b) possession and display of that firearm during the commission of that robbery, § 790.07, Fla.Stat. (1979), insofar as their elements are concerned, are identical, cf. Jenrette v. State, 390 So.2d 781 (Fla. 3d DCA 1980) (holding that aggravated battery with a firearm and possession and use of a firearm in the commission of the felony of aggravated battery are identical), and will not support the imposition of separate sentences, Stevens v. State, 372 So.2d 1370 (Fla.1979); Gonzalez v. State, 367 So.2d 1008 (Fla.1979); Johnson v. State, 366 So.2d 418 (Fla.1978); Cone v. State, 285 So.2d 12 (Fla.1973); Barner v. State, 390 So.2d 468 (Fla. 3d DCA 1980); Cremade v. State, 367 So.2d 236 (Fla. 3d DCA 1979); (2) because the three-year minimum mandatory sentencing provisions of § 775.087(2)(a), Fla.Stat. (1979), are applicable to the robbery, not the possession count, Davis is entitled only to the vacation of the sentence on the possession count, Jenrette v. State, supra; (3) Davis’ contention that he could not be separately and consecutively sentenced on the kidnapping charge, an offense he says arose out of the same criminal episode as the robbery, is without merit, § 775.021(4), Fla.Stat. (1979); see State v. Ray, 331 So.2d 316 (Fla.1976); Jenkins v. Wainwright, 322 So.2d 477 (Fla.1975); Estevez v. State, 313 So.2d 692 (Fla.1975), and this result is not altered by the fact that a consecutive three-year mandatory minimum sentence attached to the kidnapping count, see Vann v. State, 366 So.2d 1241 (Fla. 3d DCA 1979).

Affirmed in part; reversed in part.

      . Count III, charging grand larceny, was dismissed.

      . Davis’ plea of guilty to the offense of possession and display of a firearm waives any claim of double jeopardy, Robinson v. State, 239 So.2d 282 (Fla. 2d DCA 1970); Peel v. State, 150 So.2d 281 (Fla.1963), cert. denied, 380 U.S. 986, 85 S.Ct. 1359, 14 L.Ed.2d 279 (1963). Were the claim not waived, he would be entitled to have the judgment of conviction on Count II set aside. See State v. Pinder, 375 So.2d 836 (Fla.1979); Jenrette v. State, 390 So.2d 781 (Fla. 3d DCA 1980); Hegstrom v. State, 388 So.2d 1308 (Fla. 3d DCA 1980). The guilty plea, however, is not an impediment to Davis’ attack on the sentence. Robinson v. State, 373 So.2d 898 (Fla.1979).


text:
    Julian Jesus PEREZ, Appellant, v. The STATE of Florida, Appellee.
    No. 80-2388.
    District Court of Appeal of Florida, Third District.
    Dec. 30, 1980.
    Rehearing Denied Feb. 13, 1981.
    Jose E. Ferrer, Miami, for appellant.
    Jim Smith, Atty. Gen., for appellee.
    Before HUBBART, C. J., and NESBITT and BASKIN, JJ.
   PER CURIAM.

Petitioner, Julian Jesus Perez, pursuant to Fla.R.App.P. 9.140(g) having taken this appeal from the summary denial of his motion for post conviction relief under Fla.R. Crim.P. 3.850 and this court having considered the record presented and having further determined that it conclusively appears therefrom that petitioner is entitled to no relief, the denial of his motion is affirmed.


author: HURLEY, Judge.

text:
    Frank Vincent BOVA, Appellant, v. STATE of Florida, Appellee.
    No. 78-1271.
    District Court of Appeal of Florida, Fourth District.
    Dec. 31, 1980.
    Rehearing Denied Feb. 11, 1981.

      Alan H. Schreiber, Public Defender, and Peter F. LaPorte, Asst. Public Defender, Fort Lauderdale, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Russell S. Bohn, Asst. Atty. Gen., West Palm Beach, for appellee.
   HURLEY, Judge.

Frank Vincent Bova appeals his conviction and sentence for first degree murder. We affirm.

I

Of the several points' urged on appeal, only two merit extended discussion. The first cénters on defendant’s contention that the police induced pre-trial statements from him by impermissible promises. Thus, he claims, the statements were involuntary and should not have been admitted into evidence. To fully understand this contention, a bit of background is helpful.

Frank Bova associated with a group known as the Cravero gang. Reputedly, it was engaged in large-scale narcotics and other illicit activity along the eastern seaboard which brought it to the attention of the federal authorities. During the ensuing federal investigation, Bova agreed to become a police informant and supply information on the gang. He met regularly with federal agents and also developed an acquaintanceship with local police officers involved in the Cravero investigation.

On June 6, 1977, Bova attended a pre-scheduled meeting at the U. S. Marshal’s office in Miami. In addition to Inspector Noe of the Marshal’s Service, several officers from the Dade County Public Safety Department were present. Upon arrival, Bova was told that the Dade officers had a warrant for his arrest. They read the warrant and then informed Bova of his Miranda rights. All of this is undisputed. The difficulty originates with the following statement made to Bova by Lieutenant Havens of the Dade County Public Safety Department:

I told Mr. Bova that I had known him for a long period of time; that I had never lied to him in the past, that I have always been above board, honest with him, and to the best of my knowledge he had been that way with me as it concerned the Cravero investigation.
I advised him that the charge was murder in the first degree, not as he had assumed a charge involving a firearm in Louisville, Kentucky; and that I could not promise him anything other than the fact that I knew him personally; that I would apprise any. court of competent jurisdiction at a subsequent date of his prior cooperation with the government and with the Public Safety Department; and that, in fact, that most of the people that he testified against in the federal court, Cravero, all were incarcerated at Raiford — that I would apprise the Court that based on Bova’s prior cooperation with the government that his life would be in jeopardy if he were convicted of a crime and subsequently sentenced to Rai-ford Prison.
At that point Mr. Noe reiterated also the same information; also advised Mr. Bova that he couldn’t promise him anything if convicted of this crime where he would go to prison, but still he would promise Mr. Bova that regardless of the outcome of the case that he would apprise the court of his past cooperation.

Dissecting the above statement, we find two representations: (1) that the police would advise the court of the defendant’s present cooperation, and (2) that the police would inform the court of the defendant’s past role as a police informant and of their belief that the defendant’s life would be in jeopardy if he was sent to Raiford prison. Defendant now argues that these representations, made after he had been warned of his Miranda rights and after he had agreed to give a statement, constitute implied or direct promises of benefit which were calculated to play upon his hopes and fears and which rendered his subsequent statement involuntary.

The legal effect of implied promises upon a defendant’s confession was fully discussed by the court in Fillinger v. State, 349 So.2d 714, 715-16 (Fla. 2d DCA 1977), cert. denied, 374 So.2d 101 (Fla.1979):

In order for a confession to be admissible, the state has the burden of showing that it was freely and voluntarily given. State v. Chorpenning, 294 So.2d 54 (Fla. 2d DCA 1974). It cannot have been obtained by any direct or implied promise, however slight. Shotwell Mfg. Co. v. United States, 371 U.S. 341, 83 S.Ct. 448, 9 L.Ed.2d 357 (1963). An accused from whom a confession is sought should be free from the influence of either hope or fear, and a confession must be excluded if the totality of the surrounding circumstances were calculated to delude the accused or to exert undue influence over him. M. D. B. v. State, 311 So.2d 399 (Fla. 4th DCA 1975); Jarriel v. State, 317 So.2d 141 (Fla. 4th DCA 1975). If the interrogator induces the accused to confess by using language which amounts to a threat or promise of benefit, then the confession may be untrustworthy and should be excluded. Frazier v. State, 107 So.2d 16 (Fla.1958); State v. Chorpenning, supra.

Also, it has been held that “[determining whether a confession is voluntary requires an assessment of human motivation and behavior. One factor, by itself, is seldom determinative.” United States v. Ballard, 586 F.2d 1060, 1063 (5th Cir. 1978). In the case at bar the trial judge had ample opportunity to view the witnesses, gauge their motivation, and assess the impact of the two representations. His determination, arrived at after evaluating the totality of the circumstances, Reddish v. State, 167 So.2d 858 (Fla.1964), comes to this court clothed with a presumption of correctness, Churney v. State, 348 So.2d 395 (Fla. 3d DCA 1977). It is our duty to interpret the evidence and reasonable inferences and deductions derived therefrom in a manner most favorable to sustain the trial court’s ruling. McNamara v. State, 357 So.2d 410 (Fla.1978).

The trial court determined that the officer’s representations were neither an implied promise of leniency nor an otherwise impermissible inducement. The court found defendant’s statements to be voluntary and therefore permitted their admission into evidence. This decision is well supported in the record. Considering first the question of where the defendant might be incarcerated, the record clearly demonstrates this matter originated with the defendant, not the police. Bova testified he had this concern long before he talked to Lieutenant Havens. He had personally witnessed Cravero’s efforts to seek retribution against those who had betrayed him. Thus, Bova’s concern for his safety in prison was genuine and justified, but the police did not play upon this concern to manipulate Bova and induce a statement. Unlike the neophyte defendant in Fillinger, supra, who succumbed to police-induced fears, Frank Bova knew exactly what was taking place. He was a veteran of the criminal justice system who knew the officers with whom he was dealing and who had a realistic appreciation of what lay ahead. His decision to give a statement was motivated by self-interest; he felt it would exonerate him. This is obvious from the tone and content of the statement. From the outset, Bova claimed to have shot Pucci in self-defense. He consistently testified that he had nothing to hide and that his actions were justified. Further, Lieutenant Havens did not promise Bova that if he confessed he would be assured of confinement in a place other than Raiford. Havens merely said that he would inform the court of Bova’s concern for his safety. Such a representation is insufficient to render defendant’s statement involuntary.

Turning next to the representation that the police would inform the court of defendant’s cooperation, this too was not a promise of leniency or any other benefit. “A simple representation to a cooperating confessor that the fact of his cooperation will be made known to prosecuting authorities [or to the court] is insufficient to render a confession involuntary.” United States v. Curtis, 562 F.2d 1153, 1154 (9th Cir. 1977), cert. denied, 439 U.S. 910, 99 S.Ct. 279, 58 L.Ed.2d 256 (1978). Accord, United States v. Hart, 619 F.2d 325 (4th Cir. 1980); State v. Williams, 358 So.2d 1094 (Fla. 1st DCA 1978); State v. Mullin, 286 So.2d 36 (Fla. 3d DCA 1973).

II

Defendant’s next point is much more troublesome; he alleges that his right to assistance of counsel was impermissibly impaired. The background to this charge lies in the fact that defendant took the stand in his own behalf and testified at length. During cross-examination, in response to a question, Mr. Bova said, “I don’t even know. I am confused in what you are saying. I am sitting here confused. May I have a ten minute break? I am upset right now.” Defense counsel immediately asked for, and obtained, a fifteen minute recess. At this point there is a break in the record and we do not have a verbatim account of the court’s initial admonition. Apparently, however, the court instructed the defendant not to talk with anyone about the case during the recess. Defense counsel objected, citing defendant’s Sixth Amendment right to effective assistance of counsel and his correlative rights under the Florida Constitution. Defense counsel further stated, “I want to talk with Frank (the defendant). I want to talk about his testimony .... I wish to talk to him about his testimony that is going to be coming from Mr. McGee (the prosecutor).” At the state’s behest, the court adhered to its prior ruling, saying “I don’t think at this time that you have a right to confer with your client until he has testified as to the rest of his cross examination.” The court further explained that counsel could invoke defendant’s Fifth Amendment privilege but that it would be improper to discuss possible cross-examination testimony. A fifteen minute recess was then declared.

Thus framed, the question is whether a trial court, for the duration of a brief recess, has discretion to order a defendant who is in the midst of cross-examination, to refrain from talking with his attorney about his testimony. Several courts have held that it is constitutionally impermissible to limit attorney-client consultation during even a brief recess. See United States v. Allen, 542 F.2d 630 (4th Cir. 1976), cert. denied, 430 U.S. 908, 97 S.Ct. 1179, 51 L.Ed.2d 584 (1977); United States v. Bryant, 545 F.2d 1035 (6th Cir. 1976); Pendergraft v. State, 191 So.2d 830 (Miss.1966); Commonwealth v. Logan, 456 Pa. 508, 325 A.2d 313 (1974); Commonwealth v. Vivian, 426 Pa. 192, 231 A.2d 301 (1967); Commonwealth v. Barber, 250 Pa.Super. 427, 378 A.2d 1011 (1977); Annot., 5 A.L.R.3d 1360 (1966). Indeed, the same rule has been applied to civil cases. Potashnick v. Port City Construction Co., 609 F.2d 1101 (5th Cir. 1980); Cartin v. Continental Homes of New Hampshire, 134 Vt. 362, 360 A.2d 96 (1976). Nonetheless, we decline to hold that the minimal restraint imposed by the trial court in this case constituted an abuse of discretion, or was an impermissible impairment of the defendant’s Sixth Amendment right to assistance of counsel, or a violation of defendant’s correlative rights under Article I, Section 16 of the Florida Constitution.

We start by examining the scope of defendant’s rights under the Sixth Amendment’s assistance of counsel clause. In Herring v. New York, 422 U.S. 853, 857, 95 S.Ct. 2550, 2553, 45 L.Ed.2d 593 (1975), Mr. Justice Stewart offered this succinct analysis:

[ T]he right to the assistance of counsel has been understood to mean that there can be no restrictions upon the function of counsel in defending a criminal prosecution in accord with the traditions of the adversary factfinding process that has been constitutionalized in the Sixth and Fourteenth Amendments.

Herein lies the key to the case. Although the right to assistance of counsel includes the right to consult with counsel, Powell v. Alabama, 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158 (1932), the right to consult is not absolute. People v. Lewis, 53 Ill.App.3d 89, 11 Ill.Dec. 68, 368 N.E.2d 619 (1977). It is circumscribed by the “traditions of the adversary factfinding process,” the most obvious of which is cross-examination. Some have likened this hallmark of Anglo-Saxon jurisprudence to a crucible for “[i]t has always been deemed the surest test of truth and a better security than the oath.” The United States Supreme Court has held that “[cjross-examination is more than a desirable rule of trial procedure. It is implicit in the constitutional right of confrontation, and helps assure the ‘accuracy of the truth-determining process.’ ” Chambers v. Mississippi, 410 U.S. 284, 295, 93 S.Ct. 1038, 1046, 35 L.Ed.2d 297 (1973). Cross-examination is “an essential and fundamental requirement for the kind of fair trial which is this country’s constitutional goal.” Pointer v. Texas, 380 U.S. 400, 405, 85 S.Ct. 1065, 1068, 13 L.Ed.2d 923 (1965).

A defendant’s election to take the witness stand in his own behalf carries with it an implied agreement to undergo the rigors of cross-examination. An integral part of the test is that the heretofore unrestricted right to consult with counsel is briefly curtailed while a defendant submits to the questioning of the prosecutor and the scrutiny of the jury. It is universally recognized that he must answer alone. And with the one exception of a defendant’s absolute right to confer with counsel regarding the invocation of the Fifth Amendment privilege, it is generally agreed that the court possesses broad discretion to deny a request for a mid-interrogation consultation, People v. Miller, 185 Cal.App.2d 59, 8 Cal.Rptr. 91 (1960), appeal dismissed 365 U.S. 568, 81 S.Ct. 755, 5 L.Ed.2d 807 (1961), or a mid-cross-examination recess. People v. Lewis, supra.

However, curtailment of communication during cross-examination does not mean that a defendant is without assistance of counsel while on the witness stand. To the contrary, a defendant is entitled to the “guiding hand of counsel at every step in the proceedings against him.” Powell v. Alabama, supra, 287 U.S. at 69, 53 S.Ct. at 64. It is especially necessary during cross-examination when counsel’s assistance must take the form of vigilant attention to the proceedings, and, where appropriate, the imposition of proper objections to insure that the tone of cross-examination is not shrill, that the defendant is not badgered, that the question is not compound, and that the defendant is afforded ample opportunity to fully explain and complete his answer. In this fashion, the truth-seeking process of cross-examination is enhanced without impairing defendant’s right to assistance of counsel.

Given that a defendant’s right to consult may be legitimately curtailed during cross-examination, this case poses the narrow question whether a court may restrict attorney-client consultation during a brief recess which occurs in the midst of cross-examination. We answer in the affirmative and hold that the trial court is vested with such discretion. Yet, we emphasize that it must be exercised with caution.

The leading case in this area is Geders v. United States, 425 U.S. 80, 96 S.Ct. 1330, 47 L.Ed.2d 592 (1976), in which the Supreme Court ruled that a defendant’s Sixth Amendment rights were violated by a court-imposed restriction against attorney-defendant consultation during a 17-hour overnight recess. The court emphasized that the duration and the customary use of the .recess were crucial factors in its decision.

[ I] t was an overnight recess, 17 hours long. It is common practice during such recesses for an accused and counsel to discuss the events of the day’s trial. Such recesses are often times of intensive work, with tactical decisions to be made and strategies to be reviewed. The lawyer may need to obtain from his client information made relevant by the day’s testimony, or he may need to pursue inquiry along lines not fully explored earlier. At the very least, the overnight recess during trial gives the defendant a chance to discuss with counsel the significance of the day’s events. 425 U.S. at 88, 96 S.Ct. at 1335.

Clearly then, all recesses are not the same. Some are customarily utilized as attorney-client consultation periods in which trial strategy is modified and other preparations are made for the ongoing defense. In these instances, a defendant’s right to consult with counsel is paramount and cannot be impaired. See, e. g., Stripling v. State, 349 So.2d 187 (Fla. 3d DCA 1977), cert. denied, 359 So.2d 1220 (Fla.1978); United States v. Conway, 632 F.2d 641 (5th Cir. 1980).

However, the Supreme Court was careful to qualify its holding in Geders, supra, by noting that the trial judge is “not a mere moderator, but is the governor of the trial for the purpose of assuring its proper conduct....” The court said:

In addition the trial judge, if he doubts that defense counsel will observe the ethical limits on guiding witnesses, may direct that the examination of the witness continue without interruption until completed. If the judge considers the risk high he may arrange the sequence of testimony so that direct- and cross-examination of a witness will be completed without interruption. That this would not be feasible in some cases due to the length of direct- and cross-examination does not alter the availability, in most cases, of a solution that does not cut off communication for so long a period as presented by this record. Inconvenience to the parties, witnesses, counsel, and court personnel may occasionally result if a luncheon or other recess is postponed or if a court continues in session several hours beyond the normal adjournment hour. In this day of crowded dockets, courts must frequently sit through and beyond normal recess; convenience occasionally must yield to concern for the integrity of the trial itself. 425 U.S. at 90, 96 S.Ct. at 1336.

Inasmuch as the trial court is expressly authorized to structure the proceedings so as to prevent attorney-client consultation during cross-examination, we are compelled to conclude that the court’s discretion is sufficiently broad to achieve the same end by imposing a restraining order during a brief recess. As long as the curtailment of communication is brief and necessary to the administration of justice, it is constitutionally tolerable. We note that the trial judge in the case at bar was especially sensitive to the issue of attorney-client consultation. The court provided an opportunity for consultation prior to defendant’s direct examination, and, • before the incident giving rise to this appeal, agreed to arrangements so that defense counsel could meet with the defendant in a holding cell during the luncheon recess. It is also well to recall that the court exercised its discretion and acceded to defendant’s request for a brief recess so that he might collect his thoughts. Having obtained this sought-for-benefit, defendant cannot complain of a reasonable limitation. To hold otherwise would encourage a party to attempt to sow reversible error into the record. See United States v. Leighton, 386 F.2d 822 (2d Cir. 1967), cert. denied, 390 U.S. 1025, 88 S.Ct. 1412, 20 L.Ed.2d 282 (1968). Thus, we find no abuse of discretion in the trial court’s order. Yet again we emphasize the narrow scope of our holding; it embraces a brief recess in the midst of cross-examination which did not usurp time customarily available for planning and consultation. Accordingly, defendant’s conviction and the judgment are AFFIRMED.

LETTS, C. J., and GLICKSTEIN, J., concur.

      . Assuming arguendo that the restraint imposed in this case was constitutionally impermissible, we are satisfied beyond a reasonable doubt that the error was harmless. Though earlier cases have suggested that “ ‘[t]he right to have the assistance of counsel is too fundamental and absolute to allow courts to indulge in nice calculations as to the amount of prejudice arising from its denial,’ ” United States v. Venuto, 182 F.2d 519, 522 (3d Cir. 1950), we do not believe this is an appropriate formulation for the case at bar. Rather, we would apply the rule in Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 828, 17 L.Ed.2d 705, 711 (1967), that “before a federal constitutional error can be held harmless, the court must be able to declare a belief that it was harmless beyond a reasonable doubt.” See also Harrington v. California, 395 U.S. 250, 89 S.Ct. 1726, 23 L.Ed.2d 284 (1969); United States v. Winston, 447 F.2d 1236 (D.C.Cir.1971); Clark v. State, 363 So.2d 331 (Fla.1978).

      . Wellman, The Art of Cross-Examination (4th ed. 1936).


text:
    Lloyd Lee JACKSON et al., Appellants, v. Robert REARDON et al., Appellees.
    Nos. 78-1963, 78-1965.
    District Court of Appeal of Florida, Fourth District.
    Dec. 31, 1980.
    Rehearing Denied Feb. 10, 1981.
    Law Offices of George O’Kell, West Palm Beach, and Larry Klein, West Palm Beach, for appellants, Lloyd Lee Jackson and Bes-tron, Inc.
    Nancy Little Hoffmann, Fort Lauderdale, for appellant, Hertz Corp.
    Montgomery, Lytal, Reiter, Denney & Se-arcy, P.A., West Palm Beach, and Edna L. Caruso, West Palm Beach, for appellees, Reardon and Artis.
   PER CURIAM.

This is a consolidated appeal arising out of an accident between a tractor trailer and a minibike. The testimony was in sharp conflict as to how the accident occurred. The injured operator of the minibike testified that he stopped at an intersection as close to the curb as he could get. The tractor trailer approached from the rear. While making a right turn at the intersection, the rear wheels of the truck struck the minibike operator’s left leg, breaking his ankle.

The operator of the tractor trailer testified that he never saw a minibike at the intersection. He had a clear view in front of him as he approached the intersection. After waiting for traffic to clear at the intersection he made a right turn, looking in both directions and checking both mirrors. It was not until he was stopped by a policeman several miles away that he realized there had been an accident.

The only issue is whether it was error for the trial court to give the following instruction over the appellant’s objections:

The court has determined, and now instructs you as a matter of law that the circumstances at the time and place of the incident complained of were such that the Defendant, LLOYD LEE JACKSON, had a duty to use reasonable care for ROBERT REARDEN’S [sic] safety.

Appellants contend that the instruction was an invasion of the jury’s province, placed emphasis on appellees’ case, and misled the jury as to the reciprocal duties of both operators. Appellees contend the instruction was proper, and if erroneous, constituted harmless error.

It is fundamental as a matter of law that an operator of a motor vehicle has a duty to use reasonable care to prevent injury to persons and property within the vehicle’s path. This was recognized by Miami Paper Co. v. Johnston, 58 So.2d 869, 871 (Fla.1952) when it held:

The general rule supported by a wealth of authority is that one manipulating a motor vehicle on the highway, whether backing, starting or proceeding ahead, must exercise reasonable care, circumstances being the guide as to what constitutes reasonable care.

Sub judice the jury instruction at issue was adopted from Instruction No. 3.1(a), Florida Standard Jury Instructions. It is a precise and accurate statement of the law and does not invade the factfinding province of the jury. The latter’s function is to determine from the circumstances whether reasonable care was used.

Accordingly, we affirm.

AFFIRMED.

LETTS, C. J., and DOWNEY and GLICKSTEIN, JJ., concur.


author: HERSEY, Judge.

text:
    Patricia WINFIELD, Appellant, v. FIRST NEW HAVEN NATIONAL BANK, Appellee.
    No. 79-780.
    District Court of Appeal of Florida, Fourth District.
    Dec. 31, 1980.
    Rehearing Denied Feb. 10, 1971.

      David S. Romanik of Abrams, Anton, Robbins, Resnick, Schneider & Mager, P. A., Hollywood, for appellant.
    Joseph S. Kashi of Grimmett, Conrad, Scherer & James, P. A., Fort Lauderdale, for appellee.
   HERSEY, Judge.

First New Haven National Bank brought suit against Lease-Co General Inc. for default under a retail installment sales contract dealing with an aircraft. Appellant was joined as a defendant on her personal guarantee of indebtedness. The complaint sought damages and requested judicial foreclosure of a security interest. The prayer for relief included demands for an accounting, sale of the aircraft if payment was not forthcoming, and a deficiency judgment for any sums remaining unpaid.

Appellant was personally served with process and in due course a default was entered against her.

The bank reacquired the aircraft through self-help and it was apparently then sold in London, England. Notice of the sale was given to all debtors. Subsequent to the sale the bank obtained a summary final judgment against all debtors for an amount representing the balance of the deficiency remaining after applying the net sales proceeds to the debt plus the expenses of repossession and resale.

Appellant then filed a motion for relief from that summary final judgment under Rule 1.540, Florida Rules of Civil Procedure, complaining of the adequacy of notice to her. From an order denying that motion this appeal was taken.

It is appellant’s contention that the bank changed its cause of action after a default had been entered against her so that new service of process was required. Alternatively, appellant seeks relief on the basis that the summary final judgment was procured through the use of an affidavit containing a false statement of material fact. While we affirm because we find that neither alternative has merit we address each point briefly.

The cases cited by appellant under her first point support the proposition that new notice or service of process is required after the entry of a default where the cause of action is substantively changed, such as a change from separate maintenance to dissolution of marriage, Kitchens v. Kitchens, 162 So.2d 539 (Fla.3d DCA 1964), or where additional relief is sought, Colburn v. Highland Realty Co., 153 So.2d 731 (Fla.2d DCA 1963). Nothing like that happened here. The only “changes” that occurred were a reduction in the amount claimed and, during the course of the proceedings, the bank’s resort to self-help in repossessing and selling the aircraft, causing a further reduction in the amount due. This also eliminated the necessity for a judicial sale. However, this did not require any amendment to the pleadings. No new cause of action arose or otherwise became involved. The complaint remained one for damages for debt and only the amount changed. This is precisely what would have resulted had there been a judicial sale.

Further, the fact that “different defenses” would have been available to appellant in the context of a judicial sale does not mean that the cause of action must be different. A plaintiff need not make an election as between self-help and judicial enforcement of his security interest prior to or at the instant of filing his complaint. Indeed the consequences of such an election, whenever made, primarily affect the rights and liabilities of the plaintiff and the ultimate purchaser rather than the debtor-defendant. The method by which a sale under either election is required to be carried out is ordinarily the only real concern of the debtor-defendant. Under appropriate circumstances the right to object to that method may be raised even by a party in default. A defendant in default may not thereafter contest liability but will have the opportunity to be heard on the question of damages. Rule 1.080(h), Florida Rules of Civil Procedure; B/G Amusements, Inc. v. Mystery Fun House, Inc., 381 So.2d 318 (Fla. 5th DCA 1980). This presupposes proper notice, not new service of process. Whether appellant’s rights in that regard were waived depends on whether or not the notice to her was sufficient, a question addressed under appellant’s second point. We note incidentally that the only “defense” other than lack of notice mentioned by appellant in the briefs had to do with whether or not the sale was conducted in a commercially reasonable manner. If appellant had adequate notice then she waived the right to raise this defense.

The second point raised by appellant was the existence of an allegedly false statement in the affidavit on which the summary final judgment was based. The statement complained of made by an agent of the bank, recites, in effect, that appellant was given “due notice” of the sale. Appellant argues that the notice was sent to the wrong address, that she never received it, and that the affidavit is therefore false. The underlying issue raised is whether appellant had adequate notice of the sale. In our view “due notice” is a conclusion, not a statement of fact. Whether there was due or proper or sufficient notice, while determined by observable facts, constitutes a legal conclusion. It may be wrong; but, it is not “false.”

More to the point, the trial court found that due notice had been given. This is implicit in the denial of the motion for post-judgment relief. The conclusion of the trial court in that regard comes to this court clothed in a presumption of correctness. Punkar v. King Plastic Corporation, 290 So.2d 505 (Fla. 2d DCA 1974).

In reviewing the trial court’s finding, the test to be applied is whether there is competent, substantial evidence to support it. On one side is appellant’s affidavit; on the other, the bank’s affidavits and the return receipts. The trial court apparently gave credence to the latter and little or no weight to the former. This is supported by the evidence. First, appellant’s affidavit professes that had she received notice of the sale she “would have attempted to protect my interest by either paying the debt, finding a buyer or being present at the sale to bid on the property.” However, appellant had ample opportunity to do any of those things except the latter between the time the complaint was filed in July of 1977 and the time of sale in February of 1978. She didn’t even bother to respond to the complaint. She took no action to protect her interests until December of 1978 when she filed the motion under consideration here. We do not mean to imply that she is es-topped by that inaction; simply that it reflects adversely on the credibility to be accorded her affidavit at this late date. Secondly, the principal defendant in this litigation is Lease-Co General Inc. This defendant had notice at every stage of the proceedings, including notice of the proposed sale. Appellee suggests that appellant was a vice-president of this defendant and therefore had actual knowledge as to what was going on. This would be sufficient “notice” to appellant under Bondurant v. Beard Equipment Company, 345 So.2d 806 (Fla. 1st DCA 1977). However, appellant’s brief contains the claim that “this fact does not appear in the record and there certainly was no finding to that effect made by the trial court. As a point of fact, Winfield never occupied the position of Vice President of Lease Co.” We find this assertion curious. The contract upon which this suit was based is attached to the complaint and is certainly part of the court record. That contract clearly bears the signature, for Lease-Co General Inc., of that corporation’s secretary together with the signature of “Patricia Winfield, V.P.” Regardless of whether the initials V.P. stand for vice president in this instance, it may be assumed that appellant signed for the corporation in some official capacity. The trial court could well have found that she was an officer and therefore had actual knowledge of the progress of this litigation.

We find no merit in either of appellant’s positions and therefore affirm.

AFFIRMED.

LETTS, C. J., and DOWNEY, J., concur.


author: LETTS, Chief Judge.

text:
    Edwin ALICEA, Appellant, v. STATE of Florida, Appellee.
    No. 79-1909.
    District Court of Appeal of Florida, Fourth District.
    Dec. 31, 1980.
    Rehearing Denied Feb. 11, 1981.

      Richard L. Jorandby, Public Defender, and Charles D. Peters, Asst. Public Defender, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Russell S. Bohn, Asst. Atty. Gen., West Palm Beach, for appellee.
   LETTS, Chief Judge.

The defendant here was found guilty of first degree murder. He complains on appeal that the theory of the State’s case was really felony murder and that reversible error was committed when the judge failed to instruct the jury on the elements of the underlying felony. We affirm.

The facts reveal that the victim, who was known to carry large sums of money on his person, rode with the defendant in his auto out to the farm where they both worked. A witness working in the fields heard gunshots and saw the defendant walking away from the victim’s car. Approaching the car he saw the victim slumped over in the front seat and then observed the defendant toss a gun in a ditch and run away. Examined as a whole, the evidence established that (1) the victim was known to carry large sums of money, (2) the defendant was short of money and had been trying the night before to sell the gun used to inflict the fatal wounds to pay off gambling debts.

From the foregoing we agree with the State’s contention that there was ample evidence to support premeditation. During opening statement, the State argued that the murder was premeditated and the motive for the killing, robbery. The indictment alleged murder by premeditated design and did not include allegations of a felony murder.

Nonetheless the defense argues that the outcome is controlled by a recent Florida Supreme Court case which held it fundamental reversible error in a felony murder case to fail to give at least some minimal instruction on the underlying felony, even if not necessary to fully define it as would be required if the underlying felony were the main charge. State v. Jones, 377 So.2d 1163 (Fla.1979). However, there is a vital distinction between the case now before us and Jones. The Jones opinion clearly indicates that the felony murder theory was uppermost in its deliberations and nowhere seeks to address the issue of whether refusal to instruct a jury on the elements of the underlying felony constitutes reversible error if the felony murder is not the primary theory of the case. On the contrary, it notes no finding on the evidence relative to the establishment of premeditation. Moreover, in Frazier v. State, 107 So.2d 16 (Fla.1958) the Supreme Court determined that where the evidence supported a jury finding of murder by premeditated design, error in the felony murder instruction was harmless. This same thought was recently reiterated by the Supreme Court in Vasil v. State, 374 So.2d 465 (Fla.1979). If it be harmless, rather than fundamental error to give an erroneous felony murder instruction in a case where the principle charge is murder by premeditated design, we certainly cannot declare- it to be fundamental error in the case now before us in which a felony murder instruction has been properly given and the shortcoming is merely failure to define the elements of the underlying felony, especially when defense counsel specifically objects to the giving of any such instruction, as he did in the instant case. We find no merit in the other two points on appeal.

AFFIRMED.

ANSTEAD and HERSEY, JJ., concur.

      . Note, however, that a later search of the victim, his car and trunk revealed approximately $7,000; however, his wallet was missing.


text:
    Aldo CAMPI, Appellant, v. STATE of Florida, Appellee.
    No. 80-62.
    District Court of Appeal of Florida, Fourth District.
    Dec. 31, 1980.
    Rehearing Denied Feb. 11, 1981.
    Jose G. Rodriguez, of Johnson & Bakest, P. A., West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Joy B. Shearer, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

AFFIRMED. See Mower v. State, 308 So.2d 586 (Fla. 1st DCA 1975).

DOWNEY, BERANEK and HURLEY, JJ., concur.


author: MASON (Circuit Judge, Retired),

text:
    William Stanley JENNINGS, Appellant, v. Viola Elizabeth JENNINGS, Appellee.
    No. UU-38.
    District Court of Appeal of Florida, First District.
    Dec. 31, 1980.
    Rehearing Denied Feb. 13, 1981.

      William N. DeCarlis, of Bates & DeCarlis, Jacksonville, for appellant.
    Terence J. Kann, of Barton & Cox, Gainesville, for appellee.
   MASON (Circuit Judge, Retired),

Associate Judge.

This is an appeal from an order of the trial court dismissing Appellant’s second amended complaint with prejudice, and from interlocutory orders of that court dismissing Appellant’s original complaint and his first amended complaint. Since the trial court’s order dismissing the second amended complaint with prejudice terminated the litigation between the parties, it was a final order of that court reviewable by this court under Rule 9.030(b)(1)(A), Fla. Rules of Appellate Procedure, 1977. Hollywood, Inc. v. Clark (S.Ct.1943), 153 Fla. 501, 15 So.2d 175; Mills v. Beims (Fla.App.1961), 132 So.2d 228; Chipola Nurseries, Inc. v. Division of Administration, etc. (Fla.App., 1st DCA, 1976), 335 So.2d 617.

Rule 9.130(g), Fla.App.Rules 1977, authorizes this court to review initially non-final orders where we are called upon to review the final order in a case, even though no timely appeal was taken from the non-final or interlocutory orders. Here on the appeal of the final order of the trial court timely taken, we are asked to review two non-final orders of the trial court dismissing the original and first amended complaints. An order denying or granting a motion to dismiss a complaint is an interlocutory or non-final order. Business Cards Tomorrow, Inc. v. Advisory Bd., Inc. (Fla.App.1980) 379 So.2d 473. We thus have jurisdiction to review the orders of the trial court herein dismissing the original complaint, the first amended complaint and the final order dismissing the suit with prejudice, although timely appeals were not taken from the two non-final orders of the trial court.

This suit is one to establish and to modify a foreign decree of divorce rendered by a court of competent jurisdiction in the state of Idaho. It appears from the pleadings herein and exhibits attached thereto that Appellee herein, defendant below, was the plaintiff in the Idaho suit and was by that court granted a decree of divorce from Appellant herein, who was the defendant in that suit. She was awarded custody of the three minor children of the parties with the father (Appellant herein) being granted reasonable rights of visitation with the children, to be exercised in the mother’s home or other place designated by her, and with the express prohibition against the father ever removing the children from the community of the mother’s residence without her express consent. The father was ordered to pay certain designated support payments monthly to the mother for the support of the children. This decree was rendered March 22, 1976.

It is recited in the Idaho decree that prior to its entry, the parties to the suit had entered into a stipulation, among the provisions of which was one which would grant the father certain specific visitation privileges with the children, including the right of the father to have the two boys with him on certain major holidays and for a certain designated period in the summer school vacation time, after reasonable notice to the mother of the desire of the father to exercise such specific visitation privilege at any given time. It appears from the record below that the Idaho court had entered a temporary order giving effect to such stipulation.

The Idaho final decree recites that subsequent to the stipulation and entry of the temporary order, the father took the two sons of the parties to the state of California without the knowledge or permission of the mother and in violation of the court’s temporary order. Further, that the two children were not returned to the mother at the time required by the stipulation and such order. The court found that during such period of time, the children were kept overnight in the home of a homosexual, and that all of such conduct on the part of the father jeopardized the health of the children, as well as their moral and emotional well being, and exhibited instability and irresponsibility on the part of the father in caring for such children while in his custody. Consequently, the Idaho court in its decree modified the custody provisions of the stipulation by granting to the father only general reasonable rights of visitation, and in the community of the mother’s residence, as we have recited above.

The father, Appellant herein, by this suit seeks to modify the visitation provisions of the Idaho decree to permit him to have the children with him, away from the mother, in an environment unsupervised by her, in a place designated by the court, and for an extended period of time in the summer and on normal holidays, under proper court supervision.

As a predicate for such requested modification, the first amended complaint herein alleges that since the rendition of the Idaho decree there have been material and substantial changes of circumstances to warrant a modification of plaintiff’s (father’s) visitation rights. The bases of such alleged changes are that the plaintiff has improved his situation by obtaining a doctoral degree and remaining gainfully employed, that he has shown his interest in the children by making numerous trips from the state of Massachusetts, site of his residence, to Florida, to see the children, and the need of the children because of their ages to have paternal contact and image in their rearing, which can only be brought about by expanded visitation on his part with them. At the time of the entry of the Idaho decree, the boys were of the ages of eight and six years, respectively, and the girl was one-and-a-half years old. At the time of the filing of this suit in April of 1979, they had each increased in age by over three years.

The father alleged that he had fulfilled all of the requirements of the Idaho decree, including payments of child support and an adherence to its regulations regarding his visitation rights.

The issue before us for resolution is whether the trial court abused his discretion by refusing to exercise jurisdiction to consider the complaint to modify the final decree of Idaho, and in dismissing the complaints of the Appellant. The issue’s resolution turns upon the proper interpretation of Section 61.1318(2) F.S. (1977). That statute is as follows:

“61.1318-jurisdiction declined by reason of conduct-
(1) • • •
(2) Unless required in the interest of the child, the court shall not exercise its jurisdiction to modify a custody decree of another state if the petitioner, without consent of the person entitled to custody, has improperly removed the child from the physical custody of the person entitled to custody or has improperly retained the child after a visit or other temporary relinquishment of physical custody. If the petitioner has violated any other provision of a custody decree of another state, the court may decline to exercise its jurisdiction if this is just and proper under the circumstances.
(3) ...”

The trial court dismissed the original complaint herein on the ground that because of plaintiff’s violation of the temporary custodial order of the Idaho court, the above quoted statute precluded him from exercising jurisdiction in view of the absence of allegations in the complaint which, if proven, would show that the exercise of his jurisdiction is required in the interest of the children.

We cannot fault the trial court’s dismissal of this original complaint, not because of the quoted statute relied upon by him, but because that complaint does not contain sufficient allegations of change of circumstances since the entry of the Idaho final decree to justify a modification of the visitation rights set forth in that decree.

However, we think the trial court erred in dismissing the first amended complaint because, in our judgment, that complaint contained sufficient allegations of changed circumstances to require an evi-dentiary hearing on such allegations and Appellee’s answer and second affirmative defense thereto. Here again, the trial court’s reliance upon the quoted statute is not well taken because that statute is not applicable to the situation which confronted the trial court.

The purpose of Section 61.1318(2), F.S. (1977) is to prohibit the court from exercising jurisdiction to modify a custody decree of another state when it is shown to the court that the petitioner seeking modification has, without the consent of the custodian of a child, improperly removed the child from such custodian’s physical custody, or improperly retained the child after a custodial visit or other temporary relinquishment of physical custody, after the entry of the custodial decree. The statute does not apply to improper conduct of the petitioner which occurred prior to the entry of the custodial decree. And certainly not, as is the case here, when the court entering such custodial decree took note of such misconduct in the rendition of such decree, applying proper sanction therefor. Any other interpretation of this statute would have the effect of forever foreclosing a parent’s right to modify a foreign decree, even though such parent can establish such a change of circumstances as would justify its modification; and regardless of how circumspect has been such parent’s life since the entry of the decree.

We hold that the trial court erred in dismissing the first amended complaint. Reaching this conclusion, we also hold that he erred in dismissing the suit because of Appellant’s failure to file timely a second amended complaint. The amended complaint stated a cause of action and should not have been dismissed, thus foreclosing the necessity of filing any further complaint.

We reverse and remand for further proceeding in the trial court in accord with the opinions herein expressed.

REVERSED.

LARRY G. SMITH and SHIVERS, JJ., concur.