author: BOOTH, Judge.

text:
    Arthur Clayton ZEDIKER, Appellant, v. Mary Catherine ZEDIKER, Appellee.
    No. WW-298.
    District Court of Appeal of Florida, First District.
    May 5, 1981.
    Rehearing Denied June 12, 1981.
    Earl R. Duncan, Panama City, for appellant.
    William E. Harris, Panama City, for ap-pellee.
   BOOTH, Judge.

This cause is before us on appeal from a final judgment of dissolution of this 15-year marriage, awarding alimony to the wife and support for the three minor children of the parties. We reject appellant’s first contention on appeal, as we find that the award of permanent periodic alimony to appellee was supported by competent substantial evidence. Sisson v. Sisson, 336 So.2d 1129 (Fla.1976).

Appellant’s second contention, that the trial court erred in ordering him to make utility and mortgage payments without classifying such payments as alimony or child support, has merit. In its final judgment, the trial court awarded the marital home and furnishings to appellee as her sole property, and stated:

Husband is further hereby ordered to make the monthly mortgage payment on said property, in the amount of $200.68 per month, until same is sold or until the mortgage presently existing on said premises is paid in full. Husband shall further pay the utilities consumed by Wife and the parties’ children at the former marital residence up to but not exceeding the sum of $160.00 per month.

Appellant argues that Moore v. Moore, 311 So.2d 152, 153 (Fla. 3d DCA 1975), cert. denied, 324 So.2d 87 (Fla.1975), requires clarification of this portion of the order below. The Moore case, supra, holds that the trial court erred in failing to specify whether the husband’s obligation to pay mortgage payments was alimony or child support. The court noted the tax consequences of such a classification in reversing and remanding the judge’s order for clarification. Similarly, in Jassy v. Jassy, 347 So.2d 478 (Fla. 2d DCA 1977), it was held erroneous to require the husband to pay mortgage payments on a home awarded to the wife without properly classifying the award or providing for termination of payments upon the wife’s remarriage or death.

Accordingly, that portion of the final judgment which orders the husband to make utility and mortgage payments is reversed and remanded, with directions that the payments be reclassified as alimony or child support subject to termination on the same terms. In all other respects, the final judgment is affirmed.

LARRY G. SMITH, J., and OWEN, WILLIAM C., Jr. (Retired), Associate Judge, concur.


source: Caselaw Access Project

author: FERGUSON, Judge.

license: Public Domain

text:
    Alex SALKAY and Patricia Ann Williams, as Personal Representative of the Estate of Anna Salkay, Appellants, v. STATE FARM MUTUAL AUTOMOBILE INS. CO., Charles Zalis and National Car Rental & Leasing Co., Appellees. STATE FARM MUTUAL AUTOMOBILE INS. CO., Charles Zalis and National Car Rental & Leasing Co., Appellants, v. Alex SALKAY and Patricia Ann Williams, as Personal Representative of the Estate of Anna Salkay, Appellees.
    Nos. 79-1689, 79-1693.
    District Court of Appeal of Florida, Third District.
    May 5, 1981.
    Rehearing Denied June 10, 1981.
    Greene & Cooper and Marc Cooper, Miami, for Alex Salkay.

      Walton, Lantaff, Schroeder & Carson and George W. Chesrow, Miami, for State Farm.
    Before HUBBART, C. J., and PEARSON, DANIEL S. and FERGUSON, JJ.
   FERGUSON, Judge.

A jury awarded damages to appellees and against appellant, State Farm Mutual Automobile Insurance Co., in the total amount of $108,000. On July 24, 1979, the trial court issued an order granting State Farm’s motion for remittiur. On August 7, 1979, the same court vacated that motion in its entirety and granted appellees Salkays’ motion for rehearing. The final judgment (as previously amended) was reinstated. State Farm appeals from that final judgment alleging error in subjecting the order for remittitur to rehearing. We agree. The Salkays allege by means of cross-appeal that the original entry of the remittitur was error.

An order granting remittitur or, in the alternative, a new trial confers a substantive right. It is not interlocutory in nature and, therefore, does not remain subject to modification. Huffman v. Little, 341 So.2d 268 (Fla. 2d DCA 1977). In the absence of fraud or clerical error, once the motion for a new trial is granted it is not even subject to a motion for rehearing. State v. Burton, 314 So.2d 136 (Fla.1975); Huffman, supra; DePadro v. Moore, 215 So.2d 27 (Fla. 4th DCA 1968), cert. denied, 222 So.2d 748 (Fla.1969); Mathis v. Butler, 128 So.2d 142 (Fla. 2d DCA 1961).

Because we find the trial court was without authority to vacate the order granting remittitur, we must consider ap-pellees’ argument that the trial court’s original order granting the remittitur was improper. The court’s order granting remitti-tur in this case makes the specific finding:

[T]he verdict of the jury finding the Plaintiff totally without any negligence which was a legal cause of the accident, is not supported by the record and is against the manifest weight of evidence. It was clear and overwhelming from the manifest weight of the evidence that the Plaintiff was negligent in the manner and way he crossed State Road 84 when Plaintiff’s view of the Defendant’s lane was obscured and blocked prior to the time Plaintiff entered the lane the Defendant was traveling in.

The order of a trial court comes to the appellate court with a presumption of correctness and an appellate court is reluctant to reverse an order granting a remittitur or new trial. If reasonable men could differ, the trial judge’s ruling on a motion for a new trial or remittitur must be upheld. Mere disagreement on the part of the appellate court is insufficient to permit the overturning of the trial court’s determination; the trial court’s abuse of discretion must be clearly unreasonable and must patently appear from the record. Baptist Memorial Hospital, Inc. v. Bell, 384 So.2d 145, 146 (Fla.1980); Canakaris v. Canakaris, 382 So.2d 1197 (Fla.1980); Castlewood International Corporation v. LaFleur, 322 So.2d 520 (Fla.1975); Laskey v. Smith, 239 So.2d 13 (Fla.1970); Victor Manuel Rivera Gator Freightways v. White, 386 So.2d 1233 (Fla. 3d DCA 1980). On consideration of the record we hold the ground relied upon by the trial court could properly support the order of remittitur or in the alternative a new trial. Wackenhut Corporation v. Canty, 359 So.2d 430 (Fla.1978); Cloud v. Fallis, 110 So.2d 669 (Fla.1959); Bartholf v. Baker, 71 So.2d 480 (Fla.1954); Aronson v. Siquier, 318 So.2d 452 (Fla. 3d DCA 1975). Remitti-tur as an alternative to a new trial is consistent with the trial court’s finding that the plaintiff was also negligent.

The order purporting to vacate the order of remittitur is reversed; the order granting remittitur is affirmed. The cause is remanded for further proceedings consistent with this opinion.

      . This cause of action predates Section 768.043, Florida Statutes, (1977).


author: PER CURIAM.

text:
    Calvin Fred SILBER, Appellant, v. The STATE of Florida, Appellee.
    No. 79-2159.
    District Court of Appeal of Florida, Third District.
    May 5, 1981.
    Rehearing Denied June 10, 1981.
    Mark King Leban, Miami, for appellant.
    ' Jim Smith, Atty. Gen. and Paul Mendel-son, Asst. Atty. Gen., for appellee.
    Before HENDRY, NESBITT and DANIEL S. PEARSON, JJ.
   PER CURIAM.

Affirmed. State v. Dent, 322 So.2d 543 (Fla.1975); State v. Roby, 246 So.2d 566 (Fla.1971); Scaldeferri v. State, 294 So.2d 407 (Fla. 3d DCA 1974); Sims v. State, 184 So.2d 217 (Fla. 2d DCA 1966); United States v. Faulkner, 538 F.2d 724 (6th Cir. 1976); Gomien v. State, 172 So.2d 511 (Fla. 3d DCA 1965); Jacobs v. State, 389 So.2d 1054 (Fla. 3d DCA 1980); State v. Shaktman, 389 So.2d 1045 (Fla. 3d DCA 1980); State v. Steinbrecher, 389 So.2d 1043 (Fla. 3d DCA 1980); Trinidad v. State, 388 So.2d 1063 (Fla. 3d DCA 1980); Franco v. State, 376 So.2d 1168 (Fla. 3d DCA 1979); Zamot v. State, 375 So.2d 881 (Fla. 3d DCA 1979).


author: HENDRY, Judge. .

text:
    LEE B. STERN & CO., LTD., Appellant, v. Leba C. GREEN, Appellee. Leba C. GREEN, Cross-Appellant, v. Lee B. STERN, Cross-Appellee.
    No. 80-1071.
    District Court of Appeal of Florida, Third District.
    May 5, 1981.
    Rehearing Denied June 17, 1981.

      Young, Stern & Tannenbaum and Glen Rafkin and Burton Young, North Miami Beach, for appellant and cross-appellee.
    Sinclair, Louis, Siegel, Heath, Nussbaum & Zavertnik and Paul A. Louis, Miami, for appellee and cross-appellant.
    Before HENDRY, SCHWARTZ and BASKIN, JJ.
   HENDRY, Judge. .

This appeal is from a non-final order which denied the motion to dismiss of the appellant-defendant Lee B. Stern & Co., Ltd. (hereinafter the “corporation”), and granted the motion to dismiss of defendant Lee Stern.

Petitioner Leba Green’s initial complaint for dissolution of marriage was amended to join the corporation and Lee Stern as party defendants, seeking recovery for conversion of certain property. Substituted service of process was first attempted upon the defendants, both nonresidents. The defendants moved to dismiss, asserting insufficiency of process, insufficiency of service of process, and lack of jurisdiction over the person. Prior to the court’s ruling on this motion, both defendants were personally served in Illinois under the Florida long-arm statute, section 48.193(l)(b), Florida Statutes (1979). Thereafter, the trial court denied the corporation’s motion to dismiss, and granted the motion as to Lee Stern. Notice of interlocutory appeal to this court was timely filed. We affirm in part and reverse in part.

Although the court’s order does not reflect the reason for the ruling, based on the fact that defendants were properly served pursuant to section 48.194, Florida Statutes (1979), and actually received a copy of the complaint, the only issue we decide at this time is whether jurisdiction exists.

Upon review of the briefs and the record on appeal, we find ample support for the court’s determination that jurisdiction exists as to the corporation, predicated on the alleged commission of a tortious act within the State of Florida. Godfrey v. Neumann, 373 So.2d 920 (Fla. 1979); see also King v. Saucier, 356 So.2d 930 (Fla.2d DCA 1978); General Finance Corp. of Jacksonville, Inc. v. Sexton, 155 So.2d 159 (Fla. 1st DCA 1963). The corporation’s affidavits in support of the motion to dismiss, averring generally that the corporation did not engage in any business in the State of Florida and that any transfers of property referred to in the petition took place in Illinois, did not overcome the legal sufficiency of the complaint since they failed to address specific allegations that certain of the subject assets were unlawfully removed from Florida or were encumbered within the state by the defendants. Elmex Corp. v. Atlantic Federal Savings & Loan Assn., 325 So.2d 58 (Fla. 4th DCA 1976). More importantly, the affidavits are inadequate to defeat jurisdiction in light of case law holding that the place of injury is the location of the tortious act for purposes of long-arm jurisdiction under Florida’s statute. Bangor Punta Operations v. Universal Marine Co., 543 F.2d 1107 (5th Cir. 1976); Rebozo v. Washington Post Co., 515 F.2d 1208 (5th Cir. 1975); compare with Jack Pickard Dodge, Inc. v. Yarbrough, 352 So.2d 130 (Fla. 1st DCA 1977), distinguishing Bangor and Rebozo on the ground that the defendants in those cases committed affirmative wrongful acts within the forum whereas the defendant in Jack Pickard Dodge had simply serviced a car in North Carolina that eventually was sold to a Florida resident and caused injury in Florida. Here, the defendants’ attempt to exercise unlawful control over property belonging to another was an affirmative wrongful act within the forum.

With respect to Lee Stern, we find that the trial court’s order must be reversed: individual officers and agents of a corporation are personally liable where a tort has been committed. Adams v. Brickell Townhouse, Inc., 388 So.2d 1279 (Fla. 3d DCA 1980); CIC Leasing Corp. v. Dade Linen and Furniture Co., 279 So.2d 73 (Fla. 3d DCA 1973); Ramel v. Chasebrook Construction Co., 135 So.2d 876 (Fla. 2d DCA 1961). Under the rule of these cases, the court acquired jurisdiction over Lee Stern as an officer of the corporation.

Other points on appeal' and cross-appeal have been considered and found to be without merit. Accordingly, the order denying appellant-defendant Lee B. Stern & Co., Ltd.’s motion to dismiss is affirmed, the order granting Lee Stern’s motion to dismiss is reversed, and the cause remanded for further proceedings not inconsistent herewith.

Affirmed in part; reversed in part, with directions.

      . One of the assets the complaint makes reference to is a forty-six foot boat docked in Miami which petitioner’s estranged husband transferred to defendants in violation of a restraining order. Defendants later requested the United States Coast Guard in Miami to transfer title to the boat to the corporation.


text:
    Raunel RAMOS, Appellant, v. The STATE of Florida, Appellee.
    No. 81-736.
    District Court of Appeal of Florida, Third District.
    May 5, 1981.
    Rehearing Denied June 10, 1981.
    High, Stack, Lazenby, Bender, Palahach & Laeasa and G. Scott Boundy, Miami, for appellant.
    Jim Smith, Atty. Gen., for appellee.
    Before SCHWARTZ, NESBITT and BASKIN, JJ.
   PER CURIAM.

Petitioner, 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.


text:
    Malcolm NELSON, Appellant, v. STATE of Florida, Appellee.
    No. 80-482.
    District Court of Appeal of Florida, Fifth District.
    May 6, 1981.
    Rehearing Denied May 27, 1981.

      Edwin R. Ivy, Winter Garden, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Edward M. Chew, Asst. Atty. Gen., Dayto-na Beach, for appellee.
   PER CURIAM.

Nelson was charged by information with willfully or carelessly burning a field in violation of section 590.08, Florida Statutes (1979). A willful violation of section 590.08 constitutes a felony, while a careless violation constitutes a misdemeanor. § 590.14(1) & (2), Fla.Stat. (1979). Because the information was insufficient to charge a felony it did not confer jurisdiction on the circuit court. Rogers v. State, 336 So.2d 1233 (Fla. 4th DCA 1976); Pope v. State, 268 So.2d 173 (Fla. 2d DCA 1972). We reverse the judgment and sentence because they are void.

REVERSED.

COBB, SHARP and COWART, JJ., concur.


text:
    I. Granger McDANIEL, Gonzalez Pendle & Associates, f/k/a Gonzalez-Karman Associates, and Eduardo Gonzalez, Appellants, v. PILOT HOUSE PROPERTIES, INC., f/k/a Club Continental Properties, Inc., a Florida Corporation, and Genola Incorporated of Florida, Appellees.
    No. 79-223.
    District Court of Appeal of Florida, Fourth District.
    May 6, 1981.
    Rehearing Denied June 16, 1981.
    Steven R. Berger of Carey, Dwyer, Cole, Selwood & Bernard and Knight, Peters, Pickle, Niemoeller & Flynn, Miami, for appellants.
    Patricia H. Thompson of Bradford, Williams, McKay, Kimbrell, Hamann, Jennings & Kniskern, P. A., Miami, for appellees Genola Inc. of Florida.
   PER CURIAM.

We affirm the dismissal with prejudice of appellant’s third party complaint on the authority of Touche Ross & Co. v. Sun Bank, 366 So.2d 465 (Fla. 3d DCA), cert. denied, 378 So.2d 350 (Fla.1979), and VTN Consolidated, Inc. v. Coastal Engineering Associates, Inc., 341 So.2d 226 (Fla. 2d DCA 1976), cert. denied, 345 So.2d 428 (Fla.1977).

HERSEY, BERANEK and HURLEY, JJ., concur.


text:
    Janet B. ROBERTS, Appellant, v. SOUTHEASTERN DEVELOPMENT CORPORATION, a Florida Corporation, Appellee.
    No. 80-599.
    District Court of Appeal of Florida, Fourth District.
    May 6, 1981.
    Rehearing Denied June 9, 1981.
    Jon H. Gutmacher, Fort Lauderdale, for appellant.
    Dennis Alan Richard of Richard & Richard, Miami Beach, for appellee.
   PER CURIAM.

Plaintiff appeals from an adverse final summary judgment. We affirm the summary judgment but remand for further proceedings pursuant to Hart Properties, Inc. v. Slack, 159 So.2d 482 (Fla.1963); Forte v. Tripp & Skrip, 339 So.2d 698 (Fla.3d DCA 1976); and Worrell v. John F. Kennedy Memorial Hospital, Inc., 384 So.2d 897 (Fla. 4th DCA 1980). The pleadings, depositions, and affidavits in the record on appeal show the presence of an unresolved factual issue as to waiver of certain contractual provisions on the part of the defendant. Amendments to the pleadings should be allowed in accordance with the above authorities.

AFFIRMED AND REMANDED.

BERANEK and HERSEY, JJ., and SCHWARTZ, ALAN R., Associate Judge, concur.


text:
    DICKERSON, INC., Petitioner, v. William N. ROSE, as Secretary of the State of Florida, Department of Transportation, Respondent. and Gate Asphalt Company, Intervenor.
    No. ZZ-478.
    District Court of Appeal of Florida, First District.
    May 7, 1981.
    Rehearing Denied June 9, 1981.

      John A. Barley, Tallahassee, for petitioner.
    H. Reynolds Sampson, Alan E. Deserio and Margaret-Ray Kemper, Tallahassee, for respondent.
    Michael J. Dewberry and Robert J. Kelly of Rogers, Towers, Bailey, Jones & Gay, Jacksonville, for intervenor.
   PER CURIAM.

This cause concerns a petition for emergency review of nonfinal administrative action. Fla.R.App.P. 9.100; § 120.68(1), Fla. Stat. (1979). The Petitioner, Dickerson, Inc. (Dickerson) requests a stay, previously denied by the Department of Transportation (DOT), prohibiting DOT from implementing and acting in furtherance of agency action as expressed in two letters. The stay is requested pending a final adjudication of the issues raised in the petition for formal administrative hearing, filed by Dickerson with DOT on January 27, 1981 and now transferred to the Division of Administrative Hearings. We granted a temporary stay and issued a show cause order to DOT. Having considered DOT’s response, the response filed by Gate Asphalt Co. (Gate) as intervenor, Dickerson’s reply, and the parties’ presentations at oral argument, we vacate our temporary stay and remand the case for further proceedings.

In November of 1980, Dickerson was the apparent low bidder on four contracts involving three state projects and one federal project to be let by DOT. Gate was the second low bidder on the federal project. In a letter of December 31, 1980, DOT, by the Secretary of Transportation, advised Dickerson of its discovery that Dickerson was unacceptable for employment on federal highway projects requiring the approval of the Federal Highway Administration from January 1,1981 to December 31, 1981, because it had pleaded guilty to violating Section 1 of the Sherman Act concerning a federal project in North Carolina. Based upon this information, DOT found Dickerson was not a responsible bidder and accordingly, rejected its bids on all four projects.

On January 5, 1981, DOT in writing suspended Dickerson’s Certificate of Qualification to bid on state and federal projects for the period January 1, 1981 to December 31, 1981, basing its decision also on the plea of guilty and the action of the Federal Highway Administration as stated above. This letter stated in part:

You are hereby notified that the conclusions contained in this letter will become final within 15 days of receipt of this letter, unless you file a written request for an administrative hearing with the Clerk of Agency Proceedings within the 15-day time period. [Emphasis theirs].

On January 27, Dickerson filed for a formal administrative hearing on the decisions expressed in each letter. Dickerson requested relief in the form of an order vacating the suspension of its Certificate of Qualification and an order awarding the four contracts to it. Simultaneously, Dickerson moved DOT for a stay of the agency action expressed in the letters on grounds identical to the stay requested of this Court. The agency entered a written order denying the motion for stay as to both letters on February 4, 1981.

In opposing the requested stay, DOT urges that Dickerson waived a clear point of entry into Section 120.57(1) proceedings by filing its petition and motion to stay after the 15-day period had expired. We agree that Dickerson did waive a clear point of entry to Section 120.57(1) proceedings to contest the agency action expressed in the January 5th letter. In short, we have considered Dickerson’s allegations that DOT, by certain communications occurring during the 15-day period, impliedly suspended or extended the 15-day period and we conclude that the undisputed facts, as stipulated at oral argument and reviewed in a light most favorable to Dickerson, fail to invalidate the effect of the January 5th letter granting Dickerson a clear point of entry, within a specified time, to proceedings under Section 120.57. In contrast to Capeletti Brothers, Inc. v. Dept. of Transportation, 362 So.2d 346 (Fla. 1st DCA 1978), cert. denied, 368 So.2d 1374 (Fla. 1979), we find that here an opportunity for proceedings satisfying Section 120.57 were clearly offered by DOT and waived by Dickerson.

To the extent Dickerson implies that the Secretary of Transportation extended the 15-day limit after its expiration, we reject this contention. The unambiguous terms of the letter provided that the conclusions contained therein would become final unless Dickerson filed a written request for a hearing within 15 days. When Dickerson failed to timely invoke APA remedies that were clearly offered to it, the letter, representing free-form or preliminary agency action, became conclusive. Id. Assuming DOT’s power to amend this action, we find that it has not effectively done so. The informal oral discussions between Dickerson and the Secretary of DOT indicated only that the Secretary told Dickerson the agency would go ahead with a hearing if it was requested. These statements were insufficient in form and substance to override the clear intent and effect of the January 5th letter, the terms of which DOT relies upon as grounds for denying Dickerson a stay. No contrary letter or order has ever been issued. Under these circumstances DOT is entitled to rely upon the conclusiveness and finality of the letter.

Accordingly, Dickerson waived a clear point of entry into Section 120.57 proceedings concerning the suspension of its Certificate of Qualification to bid for the period January 1, 1981 to December 31, 1981 and therefore, cannot be entitled to a stay in this regard.

The effect of the December 31, 1980 letter, finding Dickerson was not a responsible bidder and rejecting its bid, is more troublesome. This letter affected a separate substantial interest and contained no provisions for filing an administrative complaint. Contrary to DOT’s position, Dickerson’s waiver of a clear point of entry concerning the action taken in the January 5th letter does not also waive the separate action taken earlier. Stated another way, the suspension of the Certificate of Qualification to bid is not the equivalent of rejecting Dickerson’s previously submitted bids because it was not a responsible bidder. Further, we do not construe the language “suspends your Certificate of Qualification” to include invalidation of pending bids made prior to the suspension. See Couch Construction Co., Inc. v. Dept. of Transportation, 361 So.2d 184 (Fla. 1st DCA 1978) (where this Court recognized the distinction between awarding a contract to the lowest “responsible” bidder, and qualification to bid on a project). No statutory provision in Chapter 337, Florida Statutes (1979) and (Supp.1980), requires that a suspension of the qualification to bid affect bids already submitted. In fact, Section 337.14(6), Florida Statutes (1979) provides:

Subject to such restrictions, [limiting the certificate to a class of work and an amount of work] the certificate of qualification shall authorize the holder to bid on all work on which bids are taken by the department during the period of time therein specified.

Here, the “bids were taken” before the effective date of Dickerson’s suspension. Also, pursuant to Florida Administrative Code Rule 14-22.12, it is apparent that not every reason for suspending a Certificate of Qualification is accompanied by a disqualification and rejection of the bids already submitted. For example, disqualification because of delinquency status requires disqualification only from “further bidding.” Fla.Admin.Code Rule 14-23.01. This is not to say that it is improper to reject a bid on the same grounds given for suspending a Certificate of Qualification. Rather, in determining the agency action taken, we are distinguishing between action suspending a Certificate of Qualification “to bid” and action rejecting bids earlier submitted under an effective Certificate of Qualification. Therefore, the January 5th letter did not offer a clear point of entry concerning action involved in the December 31st letter.

Furthermore, it is plain that a determination among bidders as to the lowest responsible bidder, is a matter of substantial interest. Couch Construction Co., Inc. v. Dept. of Transportation, supra, quoting with approval:

“[T]he right of a bidder for a public contract to a fair consideration of his bid and his right to an award of the contract if his is the lowest, responsible bid are matters of ‘substantial interest’ to him, thus entitling him to a hearing pursuant to § 120.57 ...”

361 So.2d at 186. See also Couch Construction Co., Inc. v. Dept. of Transportation, 361 So.2d 172, 175 (Fla. 1st DCA 1978) (where this Court commented that Couch rightly considered that its substantial interests were affected by the Department’s determination to reject all bids); United States Services Industries-Florida v. Dept. of Health and Rehabilitative Services, supra, n.4 (recognizing the substantial interests involved by a low bidder whose bid has been rejected).

Accordingly, after carefully examining the sequence of events in this case, we conclude that DOT cannot claim that the request for Section 120.57(1) proceedings on the rejection of Dickerson’s bids came too late under the terms of the January 5th letter and base its denial of a stay on this reason. However, a reason stated in the order denying the stay was that the projects were awarded prior to receipt of the petition and motion to stay. We affirm the denial of the stay insofar as it requests a stay of the contract awards. Obviously, neither we nor the agency can stay that which has already occurred. However, because the motion for stay was also directed toward agency action in furtherance of the award, we caution that should DOT continue with the contracts despite Dickerson’s apparently timely application for administrative review, its actions would be considered “free-form” action until a hearing was held. Id. 385 So.2d at 1148. In United States Service Industries, the petitioner, the apparent low bidder, protested an award by HRS to another bidder as improper, requesting a Section 120.57(1) hearing. HRS proceeded to execute the contract and petitioner sought a stay of that action in this Court. Believing that rapid review would occur under Section 120.57(2) proceedings, this Court denied the petition and vacated its temporary stay order. However, informal proceedings did not rapidly occur and when performance of the contract was imminent, petitioner again sought this Court’s aid. We explicitly ordered HRS to immediately conduct an informal hearing. We characterized HRS’ actions as follows:

In bidding procedures, we find there can be no final agency action until the agency has afforded a requesting petitioner a § 120.57(2) hearing. HRS proceeds at its peril if it awards a contract prior to final agency action. Absent a violation of the terms of a clear point of entry for § 120.57(2) proceedings (as established by rules, regulations, or particular terms of a contract or offer to bid), should HRS continue with a contract despite application for administrative review by a disappointed bidder, such action by HRS would be considered “free-form” action until a hearing was held. [Emphasis added.]

385 So.2d at 1148.

Furthermore, in J. A. Jones Construction Co. v. Dept. of General Services, 356 So.2d 863 (Fla. 1st DCA 1978), where, upon considering a stay of agency action pending review, this Court stated:

The petition does not exhibit an agency order or otherwise indicate that proceedings under Section 120.57(1) or (2) have been had by the agency leading to such an order, or that such proceedings have been denied. Proceedings complying with Section 120.57 and an order complying with Section 120.59 being essential to any lawful action by the agency, it appears that the petition is premature. [Emphasis added.]

356 So.2d 864. Accord, Capeletti Brothers, Inc. v. Dept. of Transportation, 362 So.2d at 348-349. Therefore, though we deny a stay concerning any decision of DOT to begin performance on the contracts, we warn that DOT proceeds at its peril should it do so.

In accordance with the views expressed above, we deny the petition to stay and remand the cause for further proceedings consistent with this opinion, noting that we do not intend by this opinion to express a view on the merits of the action taken in the December letter or to foreclose a showing by DOT that Dickerson has waived a clear point of entry into Section 120.57 proceedings concerning the December letter based upon factual or legal matters not addressed in this opinion.

SHIVERS, SHAW and THOMPSON, JJ., concur.

      . 15 U.S.C.A. § 1 (West Supp.1981).

      . Section 120.57(1), Fla.Stat. (1979).

      . DOT apparently issued the January 5th letter in compliance with its specific rule on the subject of suspending certificates of qualification. Fla.Admin.Code Rule 14-7.06.

      . While the model rules provide for waiver of a right to a hearing 21 days after the agency’s decision, it is clear that DOT did not give notice pursuant to this rule. Florida Administrative Code Rule 28-5.111 provides:
      Unless otherwise provided by law or agency rule:
      (1) Persons requesting a hearing on an Agency decision which does or may determine their substantial interests shall file a petition with the agency within twenty-one (21) days of receipt of written notice of the decision. .. The notice shall state the time limit for requesting a hearing and shall reference the agency’s procedural rules. [Emphasis supplied].
      See also United States Service Industries-Florida v. Dept. of Health and Rehabilitative Services, 385 So.2d 1147, 1149 (Fla. 1st DCA 1980).


text:
    Danny Lee IVESTER, Appellant, v. STATE of Florida, Appellee.
    No. TT-196.
    District Court of Appeal of Florida, First District.
    May 11, 1981.
    Rehearing Denied June 2, 1981.

      Michael J. Minerva, Public Defender, and Carl S. McGinnes and Margaret Good, Asst. Public Defenders, for appellant.
    Jim Smith, Atty. Gen., Carolyn Snurkow-ski, Asst. Atty. Gen., and Harry Morrison, Tallahassee, for appellee.
   PER CURIAM.

On appeal from a conviction of resisting arrest with violence in violation of Section 843.01, Florida Statutes, and driving while under the influence of alcoholic beverages in violation of Section 316.193, Florida Statutes, the defendant below, Danny Lee Ives-ter, asks us to consider two points. The first point, which is relevant to both charges, requires a determination as to whether the state failed to prove the identity of the defendant at trial. As to the second point, which relates only to the charge of resisting arrest with violence, we are asked to determine whether Ivester’s motion to compel a discovery deposition of the arresting officer should have been granted. To do this we are required to ascertain whether a defendant may justify the use of force as an act of self-defense in defending against a charge of resisting arrest with violence. § 843.01, Fla.Stat.

Concerning the proof of the defendant’s identity at trial, appellant Danny Lee Ivester argues that the state had the burden to prove his identity beyond a reasonable doubt. Because none of the state’s witnesses identified Ivester by actually pointing him out in the court room, he seeks a reversal of his conviction for resisting an officer with violence and driving while under the influence of alcoholic beverages. We agree with the appellant that the state must establish beyond a reasonable doubt the identity of the accused at trial. When the state fails in meeting its responsibility, acquittal is a proper remedy. Ponsell v. State, 393 So.2d 635 (Fla. 4th DCA 1981); Weinshenker v. State, 223 So.2d 561 (Fla. 3rd DCA 1969) reh. denied, cert. denied, Weinshenker v. Florida, 396 U.S. 973, 90 S.Ct. 462, 24 L.Ed.2d 441.

The trial court in its charge to the jury referred to either “Danny Ivester,” “the defendant,” or to “the defendant, Danny' Lee Ivester,” no less than eighteen times. The prosecutor specifically referred to the defendant Danny Ivester, and he elicited testimony from four witnesses about him. Compare State v. Freeman, 380 So.2d 1288 (Fla.1980). Because the defendant was identified beyond a reasonable doubt we affirm the first point.

The second point concerns the appellant’s discovery rights under Rule 3.220, Florida Rules of Criminal Procedure, as part of his efforts to set up a defense to the charge of resisting arrest with violence. § 843.01, Fla.Stat. Apparently, as the result of his intoxication, Ivester was involved in a traffic accident. The police were called. During the investigation of the accident, Ives-ter was approached by Officer Tom Butcher. Butcher testified that he intended to arrest the defendant, and in preparing to do so, he was accosted by Ivester. Locked in a struggle, the two fell to the ground. Butcher said Ivester began thrashing around and punching him, until he could handcuff Ivester.

However, the testimony of some of the witnesses differs significantly from that of Officer Butcher. There was testimony that Butcher kicked Ivester, knocked a sandwich out of his hands, and threatened to “beat his brains out.” In defending against the charges of resisting arrest with violence, Ivester attempted to prepare a defense based on self-defense. The assistant public defender, handling Ivester’s case, deposed Officer Butcher, but on advice from the prosecutor, Butcher refused to answer many of the questions. Ivester’s counsel then filed a motion to compel discovery seeking to determine, among other things, how many times Butcher had charged individuals with resisting arrest, both on the night Ivester was arrested and in general, whether he had ever been disciplined or sued for use of excessive force while on duty, and the officer’s home address, neighborhood and marital status.

The motion to compel discovery was denied on the ground that a self-defense argument was “irrelevant and immaterial,” because Section 776.051(1), Florida Statutes (1974), does not permit the use of force in resisting arrest. Further, the matters sought by the motion to compel discovery related to privileged or exempted matters under portions of the Public Records Act, Chapter 119, Florida Statutes, and the police officer’s personal safety exception.” § 914.15, Fla.Stat. (1979).

Ivester claims that he was substantially prejudiced by the failure to compel discovery, especially due to the fact that the prosecutor’s closing argument portrayed Officer Butcher as part of the “new breed of police officers” and a “fine officer” with a degree in criminology. The record reveals a fact that we believe to militate in favor of Ivester’s appeal. While the motion to compel discovery was denied because self-defense was “irrelevant” in a prosecution for resisting arrest with violence, the jury was instructed that self-defense could be found as a defense to the charge. We find that there may have been error in denying the motion to compel discovery and ruling in effect that a self-defense argument was not permissible.

The issue of defending against a charge of resisting arrest with violence in self-defense has never been addressed with any finality in Florida. The appellant cites Burgess v. State, 313 So.2d 479, 483 n. 4 (Fla. 2d DCA 1975) certified question dismissed 326 So.2d 441 (Fla.1976) reh. denied. Burgess stands for the proposition that no individual has the right to use force in resisting arrest, unless he apprehends bodily harm. While we agree that this rule of law is correct, Section 776.051(1), Florida Statutes, was not in effect at the time Burgess was written. Section 776.051(1), Florida Statutes, states that “(1) A person is not justified in the use of force to resist an arrest by a law enforcement officer who is known, or reasonably appears, to be a law enforcement officer.” In Lowery v. State, 356 So.2d 1325, 1326 (Fla. 4th DCA 1978), the court read Section 843.01, Florida Statutes, in pari materia with Section 776.-’ 051(1), Florida Statutes (1974). It was concluded that one may not resist arrest with violence, even if the arrest is technically illegal. Lowery, supra, at 1326; see also Meeks v. State, 369 So.2d 109 (Fla. 1st DCA 1979); Morley v. State, 362 So.2d 1013 (Fla. 1st DCA 1978).

The Lowery court specifically left open the question of a defendant’s right to use force in self-defense pursuant to Section 776.012, Florida Statutes (1979), which states in part that: “A person is justified in the use of force, except deadly force, against another when and to the extent that he reasonably believes that such conduct is necessary to defend himself . . . against such other’s imminent use of unlawful force.... ” See also Pani v. State, 361 So.2d 170 (Fla. 3rd DCA 1978) reh. denied.

Sections 776.012 and 776.051, Florida Statutes (1974), were both enacted as a part of the same act. See Laws of Florida, Chapter 74-383. Statutes that are a part of a single act must be read in pari materia. Major v. State, 180 So.2d 335, 337 n. 1 (Fla.1965). The effect of reading these statutes in pari materia is to permit an individual to defend himself against unlawful or excessive force, even when being arrested. This view is consistent with the position taken by other jurisdictions that have been confronted with questions relating to statutes similar to Sections 776.012, 776.051 and 843.01, Florida Statutes. See e. g., People v. Stevenson, 31 N.Y.2d 108, 335 N.Y.S.2d 52, 286 N.E.2d 445 (1972); People v. Curtis, 70 Cal.2d 347, 74 Cal.Rptr. 713, 450 P.2d 33 (1969); Annot. 77 A.L.R.3d 281.

Chapter 776, Florida Statutes, recognizes principles set forth in the case law of other jurisdictions in that the right of self-defense against the use of excessive force by a police officer is a concept entirely different from resistance to an arrest, lawful or unlawful, by methods of self-help. People v. Curtis, supra, at 74 Cal.Rptr. 713, 714, 450 P.2d 38-39; see also State v. Nunes, 546 S.W.2d 759, 762 (Mo.App.1977). The former concept is grounded on the view that a citizen should be able to exercise reasonable resistance to protect life and limb; which cannot be repaired in the courtroom. The latter view is based on the principle that a self-help form of resistance promotes intolerable disorder. Any damage done by an improper arrest can be repaired through the legal processes. Id.

Therefore, self-defense is not “irrelevant” to a prosecution for resisting arrest with violence. It is quite “relevant,” and under Rule 3.220(d), Florida Rules of Criminal Procedure, “relevancy of a matter to the offense charged” is the basis for permitting discovery of a matter. The scope of discovery, unless privileged or limited by order of the court, includes any relevant matter or information that appears reasonably calculated to lead to the discovery of admissible evidence. Evanco v. State, 350 So.2d 780, 781 (Fla. 1st DCA 1977) rev’d. for new trial 352 So.2d 147.

The denial of the motion to compel discovery was based on the Public Records Act, as set forth in the Laws of Florida, Chapter 79-187. See §§ 119.011,119.07 and 119.072, Fla.Stat. (1979). These sections refer to certain sensitive public records that are not open to inspection by the public. The law refers to “public records,” and that term refers to “documents, papers, letters, maps, books, tapes, photographs, films, sound recordings or other material, regardless of physical form of characteristics....” § 119.011(1), Fla.Stat. (1979); see also Shevin v. Byron, Harless, Shaffer, Reid and Associates, Inc., 379 So.2d 633, 640 (Fla.1980).

By definition a public record does not include someone’s verbal answers in response to a question posed at a deposition. Even if the type of answers to questions posed by Ivester’s counsel did fall within the definition of a “public record,” the Public Records Act could not be used to shield one from answering questions at a deposition that are relevant to a criminal prosecution. While Section 119.07(3), Florida Statutes, does foreclose certain items from public inspection the provisions of Section 119.-07, Florida Statutes, are not intended to limit the effect of Rule 3.220, the discovery provisions, of the Florida Rules of Criminal Procedure. See § 119.07(5), Fla.Stat. (1979). Thus, any limitation of Butcher’s testimony would have to be based on the Florida Rules of Criminal Procedure and not the Public Records Act.

Ivester’s motion to compel Officer Butcher to answer questions concerning his home address, marital status, and neighborhood was also denied on the authority of Section 914.15, Florida Statutes (1979). This section permits a police officer to refrain from disclosing his residence address and personal information about his family, unless ordered to do so by a court. This represents a codification of what is known as the “personal safety exception” to the duty of the state to allow a defendant full access to witnesses who are informants or police officers. This rule permits a police officer to refrain from answering questions about his personal life when a threat has been made that affects the officer’s safety or that of his family. Under the “personal safety exception,” the procedure for seeking a court order to compel the type of testimony sought by Ivester is set forth in Evanco, supra, at 783. The trial court must conduct a hearing on the record to determine: 1) if there has been an actual threat to the witness or his family; 2) whether the information sought is relevant to the defendant’s case; and 3) any special need for the particular information based on a showing by the defendant. Evanco, supra, at 783, citing United States v. Palermo, 410 F.2d 468 (7th Cir. 1969).

It appears that the self-defense argument that Ivester’s counsel intended to present was certainly relevant to a defense against the offense charged. Rule 3.220(d), Fla.R. Crim.P. Whether the information sought by Ivester should have been withheld from him, because it was truly sensitive or infringed on the personal safety of Officer Butcher or his family, we cannot say. The proper method for determination of this matter would have been by use of an in camera proceeding pursuant to Rule 3.220(i), Florida Rules of Criminal Procedure, which requires the preparation of a sealed and preserved record of the proceedings for future appellate review. Upon a showing of cause, if the information should not have been disclosed, because of the personal safety exception, irrelevancy or sensitivity, as noted for example in Rule 3.220(a)(l)(ii), Florida Rules of Criminal Procedure, a protective order regulating disclosure of that information could have been issued. See 3.220(h), Fla.R.Crim.P.

Ivester seeks a reversal of his conviction of resisting arrest with violence with a remand for a new trial due to the failure of the trial court to compel discovery. However, he has demonstrated no prejudice, other than a failure to follow the dictates of the discovery rules as amplified by this Court in Evanco, supra. The purpose of the discovery rules is to help a defendant to prepare his case, but it is not to give him a procedural escape hatch on appeal for the avoidance of the determination of a trial court, absent a showing of prejudice or harm to his case. Holman v. State, 347 So.2d 832, 834 (Fla. 3rd DCA 1977) cert. denied, 354 So.2d 981 (Fla.1978); Ludwick v. State, 336 So.2d 701, 702 (Fla. 4th DCA 1976) reh. denied.

Because it is possible that prejudice or harm might have occurred, we relinquish jurisdiction to the trial court for sixty days for the purpose of an in camera proceeding to determine: 1) whether there has been an actual threat to Officer Butcher’s personal safety or to the safety of his family; 2) if there is good cause for restricting the information or any part thereof, concerning the officer’s professional background; 3) the exact nature of the officer’s professional record concerning his arrest record, civil suits pending against him for acts committed relating to his position as a police officer, and disciplinary record; and 4) any prejudice that may have occurred to the appellant due to the failure to compel discovery of the information sought by the motion to compel discovery. The trial judge shall enter an order stating his findings of fact thereon. The reporting and transcribing of the hearing shall be at the expense of the state in Leon County. Upon completion of the proceedings below, the state shall file the transcript with the Clerk of this Court together with a certified copy of the order of the trial judge. We will thereafter give further consideration to the question raised by Point II of this appeal.

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

      . E. g., responses by witness Steven Nagelberg:
      Q (By Mr. Meggs): All right. Now, directing your attention, if I could please sir, back to August 20, 1979. Did you have the occasion to have contact with the defendant, Danny Ivester, on that date?
      A: Except for that one meeting, that is the only time I have met him or seen him before.
      Q: Will you tell the jury where you were the first time you ever saw Danny Ivester, and what the circumstances of that meeting were?
      A: 1 saw him uh — the first time was, I believe, at the intersection of Orange Avenue and Lake Bradford Road. (T.R.21)
      Responses by Officer Dent:
      Q (By Mr. Meggs): Did you have occasion on that day to investigate an accident involving Danny Ivester, the defendant?
      A: Yes, I did.
      (T.R.47)
      Another witness, Albert Theodore Oaks, answered:
      Q (By Mr. Meggs): Do you know the defendant, Danny Ivester?
      A: Yes sir.

        (T.R.136)
      The fourth witness, Leanders Harvey, testified as follows:
      Q (By Mr. Meggs): Mr. Harvey, I would like to direct your attention, if I could, back to August 20, 1979. Did you have occasion to become involved, not you involved personally, but do you have information about an accident that occurred involving the defendant, Danny Ivester?
      A: Yes, sir.
      (T.R.144)

      . We note that there are limitations upon the amount of force that one can use in self-defense. § 776.012, Fla.Stat. (1974). Similarly, the circumstances in which one may defend himself against excessive force are limited. § 776.041, Fla.Stat. (1974); contrast with Gray v. State, 463 P.2d 897 (Alaska 1970).


text:
    JOY RUBIN’S ART EMPORIUM and Federal Insurance Company, Appellants, v. Susan R. EASON, Appellee.
    No. XX-433.
    District Court of Appeal of Florida, First District.
    May 12, 1981.
    Rehearing Denied June 12, 1981.
    Frank M. Hamilton of Fleming, O’Bryan & Fleming, Fort Lauderdale, for appellants.
    Richard L. Wagenheim of Golding & Wagenheim, Fort Lauderdale, for appellee.
   PER CURIAM.

Affirmed. Compare Jenkins v. Wilson, 397 So.2d 773 (Fla 1st DCA 1981).

McCORD, ROBERT P. SMITH, Jr., and ERVIN, JJ., concur.


author: BASKIN, Judge.

text:
    Alfred D. BIELEY, individually and as Trustee, Appellant, v. Peggy M. BIELEY, individually and as Trustee, Appellee.
    No. 79-1941.
    District Court of Appeal of Florida, Third District.
    May 12, 1981.
    Rehearing Denied June 5, 1981.

      Ponzoli & Wassenberg and Ronald P. Ponzoli, Miami, for appellant.
    Gelb & Spatz and Monroe Gelb, Miami, for appellee.
    Before SCHWARTZ, BASKIN and DANIEL S. PEARSON, JJ.
   BASKIN, Judge.

Whether a trial judge in a dissolution proceeding may amend provisions of an existing irrevocable trust established by the parties for the benefit of their son is the question presented in this appeal. In an action brought to enforce the trust amendment, the court ordered invasion of the trust corpus in order to gain additional funds for the beneficiary’s education. We hold that the court correctly enforced the amendment; however, we find error in the court’s ruling pertaining to the claim of waste. We therefore affirm in part and reverse in part.

In 1972, Peggy Bieley and Alfred Bieley created a trust designed to provide a fund for their son Harlan’s educational expenses. A termination provision stated:

ARTICLE FOUR: TERMINATION PROVISIONS
On the 30th day of November, 1983, or upon the death of our son, HARLAN C. BIELEY, whichever occurs first, all then accumulated yet undistributed income is to be paid and distributed to our son HARLAN or to his estate should he not be living, free from any trust. This Trust is to terminate upon the occurrence of that event, whereupon the corpus of it is to be paid and distributed to us as Co-Trustees or to either one of us as surviving sole Trustee or to the estate of the predeceased Co-Trustees or Trustee, that is should we, Declarants have both died by the time of termination hereinbe-fore stated, either simultaneously or successively.

The trust was declared irrevocable.

ARTICLE FOURTEEN: IRREVOCA-BILITY
This Trust is to be irrevocable and we hereby expressly waive any and all rights and powers, whether alone or in conjunction with any other person, to alter, amend or revoke the same, neither in whole nor in part nor as to any of its terms.

In 1977, the marriage of Peggy and Alfred Bieley was dissolved. In the Final Judgment of Dissolution, both the Harlan Bieley Trust and that of his sister were amended.

7. The trusts shall be deemed amended so as to permit invasion of the corpus for the purpose of securing an education and as provided in said trusts for the beneficiary of each Trust, and the parties are hereby directed to execute such instruments as may be necessary to accomplish this result.

Incorporated in the Final Judgment of Dissolution, by reference, an exhibit provided:

Alfred D. Bieley and Peggy Bieley do each acknowledge that they have no joint and/or individual interests in and to the foregoing titled. . . “Harlan Bieley Trust Assets.”

When Alfred Bieley refused to execute documents necessary to permit invasion of the trust corpus as required by the Final Judgment of Dissolution, Peggy Bieley instituted an action to require him to permit invasion of the corpus in the amount of $1,943.10. Alfred Bieley counterclaimed charging Peggy Bieley had wasted trust funds during the time she served as sole trustee. During the pendency of the action to enforce the provisions of the Final Judgment of Dissolution, Harlan Bieley filed an affidavit stating he approved the trust amendments and supported efforts to enforce the amendments.

The trial court found that the Agreed Final Judgment of Dissolution contained provisions amending the trust and that the trust income of approximately $2,700 was inadequate to carry out its purpose. In addition, the court found that Alfred and Peggy Bieley were settlors, co-trustees and remaindermen. The court concluded:

2. That the Final Judgment entered in Case No. 77-9175 dissolving the marriage of the parties was agreed to by both the Plaintiff and the Defendant and has the effect of a property settlement agreement as well as a Final Judgment;
3. That the provisions of the Final Judgment of Dissolution of Marriage entered in Case No. 77-9175, Circuit Court Eleventh Judicial Circuit, insofar as it pertains to amendment of the HARLAN C. BIELEY Trust is fully' enforceable against ALFRED D. BIELEY both individually and as Trustee;
4. That the said Final Judgment entered in Case No. 77-9175 amended the Declaration of Trust dated November 29, 1972 created for the benefit of HARLAN C. BIELEY so as to permit invasion of the corpus to effect the purpose of the trust and so as to constitute a waiver and relinquishment of the remainder rights of ALFRED D. BIELEY and PEGGY M. BIELEY in favor of the beneficiary HARLAN C. BIELEY;
5. That said amendments were all clearly beneficial to the interests of the beneficiary ....

The court entered judgment in favor of Peggy Bieley and ordered Alfred Bieley to execute documents necessary to effect invasion of the trust corpus. Alfred Bieley’s contention that the purchase of a car for Harlan from trust funds depleted the corpus by $2,700, reduced its income, and constituted waste was rejected by the trial court. The court also rejected arguments that rent payments of $195 a month along with other automobile maintenance costs wasted trust assets. This appeal ensued.

Appellant contends that the court in the dissolution proceeding lacked authority to amend the trust because it did not have all parties to the trust before it; in the dissolution proceeding, the Bieleys did not appear in- their capacity as co-trustees, and Harlan was not a party to the dissolution. Appellant argues that no emergency existed to justify modification of the trust. Pentland v. Pentland, 113 So.2d 872 (Fla.1959).

Appellee, on the other hand, argues that although a trust may be amended with the beneficiary's consent, Harlan’s consent was not required because the trust settlors’ actions benefited him. They surrendered their interests to him by releasing their reversionary rights. Boyd v. United States, 34 F.2d 488 (D.C.Conn.1929); Hines v. Louisville Trust Co., 254 S.W.2d 73 (Ky. App.1952); In re Central Homes Trust Co., 61 N.J.Super. 109, 160 A.2d 186 (1960); 89 C.J.S. Trusts § 87, p. 894 (1955). Appellee contends that although the trust could not be modified to the detriment of the beneficiary, the settlors could surrender privileges if the result were for his benefit. The court must determine whether the beneficiary’s interests were prejudiced by the amendment.

Although Florida cases have not previously addressed this issue, we now hold that an irrevocable trust may be amended without the consent of the beneficiary when the settlor surrenders privileges or rights in favor of the beneficiary. In reaching this conclusion, we are guided by the law emanating from other jurisdictions. Boyd v. United States, supra (settlor could reduce net income from an irrevocable trust payable to settlor because remainderman’s rights were enhanced); Hines v. Louisville Trust Co., supra (settlor may modify trust agreement by surrendering privileges but may not modify the trust to the prejudice of the beneficiaries without their consent); In re Central Home Trust Co., supra (amending disposing of settlor’s reversion-ary interest in corpus without adversely affecting beneficiaries’ rights should be declared valid); In re Harwood, 113 N.Y.S.2d 587 (S.Ct.1952) (settlor’s transfer of a trust reversion did not require all parties to consent); New York Trust Co. v. Weaver, 298 N.Y. 1, 80 N.E.2d 56 (1948) (holding that a son’s consent to revocation of the trust under which he was beneficiary was not required when the revocation disposed of the settlor’s reversionary interests); In re Jackson’s Trust, 351 Pa. 89, 40 A.2d 393 (1945) (life tenant’s consent to extinguishment of power of appointment unnecessary because her trust interest was not affected.

The Harlan Bieley Trust provided that the trust was to terminate on November 30, 1983 or upon the death of the beneficiary, whichever occurred first. When the trust terminated, the corpus of the trust was to be distributed to Alfred D. Bieley and Peggy M. Bieley. In the Final Judgment of Dissolution, the trial court ruled that the amendment constituted a “waiver and relinquishment of the remainder rights of Alfred D. Bieley and Peggy M. Bieley in favor of the beneficiary, Harlan C. Bieley.” We construe the settlors’ waiver and relinquishment of their remainder rights as applicable only to the invasion of the corpus for the purpose of the trust, to provide for Harlan’s educational expenses.

The foregoing provisions clearly disclose that the amendments to the trust favored the beneficiary. The beneficiary’s consent to the trust amendments was therefore unnecessary. The trial court correctly entered its final judgment enforcing the trust amendments.

Turning to the trial judge’s ruling that Peggy Bieley, as sole trustee, was not shown to have committed waste of the trust assets, we find error. Appellant sought to introduce evidence proving that Peggy Bie-ley had wasted trust assets by improper rent expenditures through the introduction of checks establishing the amount wasted. Counsel failed to introduce documents and sought to have the case reopened so that they might be introduced. The court refused to permit the case to be reopened, although the court recognized that rent should not have been paid under the terms of the trust. We hold the trial court abused its discretion in refusing to permit appellant the opportunity of introducing the checks. Akins v. Taylor, 314 So.2d 13 (Fla. 1st DCA 1975). We therefore reverse the provisions in the Final Judgment pertaining to waste and remand for additional testimony on that issue.

The remaining points lack merit.

Affirmed in part, reversed in part, and remanded.

      . The status of the Lily Beth Bieley Trust was not challenged in these proceedings.

      . Alfred and Peggy Bieley agreed in writing to release their interests in the trust assets.

      . The court also found that Alfred Bieley had between March, 1978 until March of 1979 temporarily removed himself as co-trustee.

      . Alfred Bieley’s appeal of the Final Judgment of Dissolution did not challenge the trust amendment provisions.


author: NESBITT, Judge.

text:
    Sharon Lee HORN, Appellant, v. Richard L. HORN, Appellee.
    No. 80-1023.
    District Court of Appeal of Florida, Third District.
    May 12, 1981.
    Rehearing Denied June 17, 1981.

      Gelb & Spatz and Monroe Gelb, Miami, for appellant.
    A. J. Barranco, Jr., Stuart and Steven Kellough, Miami, for appellee.
    Before HENDRY, NESBITT and DANIEL S. PEARSON, JJ.
   NESBITT, Judge.

The wife appeals from a supplemental judgment partitioning the marital home which she owned as tenant in common with her former husband. Her contention is that because she had exclusive possession of the home, as an incident of child support, Forte v. Forte, 320 So.2d 446 (Fla.3d DCA 1975), cert. denied, 351 So.2d 406 (Fla.1977); Richardson v. Richardson, 315 So.2d 513 (Fla. 4th DCA 1975), that partition of the property was premature because only the party having an immediate right of possession may maintain such an action. Pollack v. Pollack, 159 Fla. 224, 31 So.2d 253 (1947); Black v. Miller, 219 So.2d 106, 108 (Fla.3d DCA), cert. denied, 225 So.2d 920 (Fla.1969). We disagree and affirm.

Some two years prior to the entry of the partition judgment, the parties had entered into a property settlement agreement which was ratified and incorporated into the final judgment of dissolution. By the terms of that agreement, the wife was awarded custody of the parties’ two minor children. The husband was required to pay child support to the wife. Under the agreement, the wife voluntarily relinquished all claims to alimony. The property settlement agreement with respect to the marital home provided:

SECTION THREE
MARITAL HOME
Husband agrees that Wife and the minor children described herein shall have the exclusive use and enjoyment of the marital home of the parties, located at 1624 Tigertail Avenue, Coconut Grove, Miami, Florida, until a sale of said home. Until such sale is made, or if no such sale can be made, Husband agrees to make the mortgage, real property tax and insurance payments in connection with the home, which currently total $485.00 per month.
In the event the home is sold, Husband further agrees to pay the mortgage, real property tax and insurance payments on a replacement residence, up to a maximum aggregate sum of $485.00 per month. In connection with Husband’s payments for the replacement residence, Husband shall be entitled to claim as deductions on his individual federal income tax return those amounts representing interest charges on any mortgage and the real property taxes.
In the event the marital home is sold and a replacement is not purchased, Husband agrees to pay a rent allowance for such residence, up to a maximum amount of $485.00 per month.
Upon the sale of the marital home, or the replacement home, Husband shall receive from the proceeds thereof, credit for payments made in reducing the principal of any mortgage upon the property.
Husband’s obligations pursuant to this Section Three shall cease when the youngest child, MICHAEL, attains the age of eighteen (18) years.

As we construe the agreement, we find that the trial court was entirely correct in decreeing partition. Under the agreement, the husband had the obligation to furnish all shelter and housing on behalf of the children until the youngest attained the age of eighteen. The husband could have satisfied that obligation by either: (1) continuing to make the mortgage, real property tax, and insurance payments on the home in question; or (2) making those payments on a replacement home; or (3) making equivalent payments toward the rental of a replacement home. While the property settlement agreement did employ the words of art, “exclusive use and enjoyment of the marital home,” we find that that phrase has little significance beyond denying the husband the right to occupy the home with the former wife. Obviously, the possession of the marital home was a temporary incident of child support but the house, as such, did not constitute a res in which the children had an exclusive right to possession. Nor did the wife’s position as custodial parent afford her any derivative right to possession.

In this case, there is a secondary basis upon which to support the judgment appealed from. It has long been recognized, pursuant to Section 61.13, Florida Statutes (1977), that modification of a separation agreement for the welfare of children and for the grant of exclusive possession of property for their use and benefit is permissible at any stage of the post-dissolution proceedings where circumstances warrant such action. Forte v. Forte, supra. In Richardson v. Richardson, supra, a husband who had been awarded custody of minor children, when faced with a suit for partition of the former marital home, filed a petition to modify the wife’s interest in the marital home to vest in him exclusive possession for the use and benefit of the minor children. The petition for modification was granted which was set forth as an affirmative defense to the partition proceeding. Summary judgment was then entered for the husband.

In this case, the wife did not seek exclusive possession of the marital home for the benefit of the children as was done in Richardson. However, that failure is entirely understandable. With cross-petitions for modification pending by both the husband and the wife, the parties agreed that each would assume the custody and costs of rearing a minor child. That agreement was ratified and confirmed by the court. In addition, the court found that the wife, having custody of only one child, did not need a residence as large as the marital home and found that the husband no longer had the financial ability to maintain the residence because of his indebtedness. The court further found that the interests of the minor children were no longer served by the wife having exclusive occupancy of the home. The wife has not challenged the evidentiary support for those findings and consequently the trial court’s ruling is also sustainable on this ground. Forte v. Forte, supra; Richardson v. Richardson, supra.

Finally, the wife contends that the trial court erred in permitting the husband to augment his petition for modification of the property settlement agreement by the filing of a supplemental complaint for partition. She has not, however, pointed to any demonstrable prejudice resulting from the court’s action; nor indeed could any be demonstrated. In either the original petition or the counterpetition for dissolution, either of the parties was at liberty to request the court to retain jurisdiction for the purpose of partitioning the property. Rankin v. Rankin, 258 So.2d 489 (Fla.2d DCA 1972); Banfi v. Banfi, 123 So.2d 52 (Fla.3d DCA 1960). It has been held to be error to require a party to file such a separate action. Bullard v. Bullard, 380 So.2d 1090 (Fla.3d DCA 1980).

In this case, the wife actually directed a motion to dismiss for failure to state a cause of action toward the supplemental complaint for partition. The motion was denied and she filed an answer which raised the property settlement agreement as an affirmative defense. The parties then litigated the remaining disputed issues on the respective cross-petitions for modification of the property settlement agreement. The court granted partition and relief by way of the parties’ cross-petitions for modification and the wife has not appealed from the latter. For the trial court to have adopted the wife’s approach would simply promote and foster a multiplicity of actions which we understood had been relegated to a bygone era.

Affirmed.


text:
    PAN-AMERICAN LIFE INSURANCE COMPANY, Appellant, v. SUAVE SHOE CORPORATION, Appellee.
    No. 80-1192.
    District Court of Appeal of Florida, Third District.
    May 12, 1981.
    Rehearing Denied June 10, 1981.
    Dixon, Dixon, Hurst, Nicklaus & Webb and H. Clay Roberts, Miami, for appellant.
    Greenberg, Traurig, Hoffman, Lipoff, Quentel & Wolff and Stanley H. Wakshlag, Miami, for appellee.
    Before HUBBART, C. J., and BARK-DULL and NESBITT, JJ.
   PER CURIAM.

Affirmed. Gulf Life Insurance v. Conklin, 154 Fla. 4, 16 So.2d 337 (1944); United Services Automobile Association v. Janke, 363 So.2d 637 (Fla. 3d DCA 1978).


text:
    DEPARTMENT OF REVENUE, State of Florida, Appellant, v. Lloyd A. GOOD, Jr., Ancillary Executor of the Estate of Clara Compton Good a/k/a Clara C. Good, Deceased, Appellee.
    No. 80-1697.
    District Court of Appeal of Florida, Third District.
    May 12, 1981.
    Rehearing Denied June 17, 1981.

      Jim Smith, Atty. Gen., and William D. Townsend and E. Wilson Crump, II, Asst. Attys. Gen., for appellant.
    Lloyd A. Good, Jr., Sugar Loaf, in pro. per.
    Before BARKDULL, NESBITT and BASKIN, JJ.
   NESBITT, Judge.

The Department of Revenue appeals a declaratory judgment which determined that the State of Florida was not due any portion of the estate taxes paid under the Federal Revenue Act with respect to the estate of this non-resident decedent. The judgment ordered the Department of Revenue to deliver a certificate of non-taxability to the estate without requiring the payment of any tax. For the reasons assigned, we affirm the judgment.

Appellee’s decedent died a resident of the Commonwealth of Pennsylvania on March 15, 1975 having real and personal property in both Florida and Pennsylvania. The greater portion of her estate consisted of a resort in the Florida Keys which included both real and tangible property valued at $1,068,810.70. The property was encumbered by a purchase money mortgage in the unpaid sum of $1,114,302.36. The decedent’s aggregate gross estate was finally determined to be $1,620,116.15. The adjusted gross value was determined to be $258,-825.52. The federal credit allowed for death taxes was $4,202. Pennsylvania, which levies its own inheritance tax, determined that it was due $22,631.35, which sum was paid. The Department of Revenue determined and claimed a proportionate share of the federal tax in the amount of $2,520.62 plus interest of $541.93 as of June 11, 1979.

The personal representative refused to pay the tax and the Department of Revenue refused to issue a non-taxable certificate. The personal representative then commenced the declaratory judgment proceeding claiming that the imposition of an estate tax, pursuant to Article VII, Section 5 of the Florida Constitution, impinged upon the privileges and immunities clause of the United States Constitution, Article IV, Section 2, and was also a deprivation of due process as afforded by the Fourteenth Amendment to the United States Constitution. The complaint further alleged that the construction placed upon Section 198.03, Florida Statutes (1973) and Rule 12C-3.03 of the Florida Administrative Code by the Department of Revenue, in its attempt to assess the tax, was erroneous and unlawful.

Applying the traditional concepts of judicial restraint, the trial court found it unnecessary to reach the constitutionality of the statutes and instead decided the issue based upon statutory construction of Section 198.-03, Florida Statutes (1973) and Rule 12C-3.-■03 of the Department of Revenue. Neither party seriously contends that the constitutional issue controls the matter before this court and we agree.

Article VII, Section 5(a) of the Florida Constitution provides:

SECTION 5. Estate, inheritance and income taxes.—
(a) NATURAL PERSONS. No tax upon estates or inheritances or upon the income of natural persons who are residents or citizens of the state shall be levied by the state, or under its authority, in excess of the aggregate of amounts which may be allowed to be credited upon or deducted from any similar tax levied by the United States or any state.

As will be observed, the Florida Constitution does not prohibit the Legislature from imposing a transfer tax upon the estate of nonresidents. The present constitutional provision, as well as its progenitor, only prohibits the imposition of estate or inheritance taxes upon residents in excess of the amount of credit allowed under the Federal Revenue Act.

In the implementation of the Constitution, the Legislature has enacted Section 198.02, Florida Statutes (1973) with respect to the transfer tax upon the estates of residents and Section 198.03, Florida Statutes (1973) with respect to the transfer tax upon estates of non-residents. Section 198.02 and Section 198.03 are similar.

It is settled, pursuant to Section 198.02, that Florida may exact a tax upon an estate of a resident so long as it does not impose a burden upon the estate in excess of the total amount of the federal tax credit. Green v. State ex rel. Phipps, 166 So.2d 585 (Fla.1964). Under the statute, a Florida tax is collectible only if such tax may be credited against or deducted from a similar federal estate tax. Dickinson v. Maurer, 229 So.2d 247 (Fla.1969). Department of Revenue Rule 12C-3.03 provides:

12C-3.03 Calculation of the tax upon estates of non-resident decedents.
(1) The tax is imposed upon the estate of a decedent who was not a resident of this State at the time of death but was a resident of the United States in an amount equal to such proportion of the amount of the credit allowable for State Death Taxes under the Federal Revenue Act as the gross value of the property taxable in this State bears to the value of entire estate wherever situate.
(2) The following formula shall be used in calculating the tax upon the estate of a decedent who was not a resident of this State at the time of death but was a resident of the United States; The gross value of property taxable in Florida, as finally determined by the United States Internal Revenue Service, multiplied by credit allowable for State Death Tax under the Federal Revenue Act, and dividing the product by the gross value of the entire estate wherever situate.
or
Gross value of property Credit for State
having situs in Florida_x_Death Taxes Gross value of entire
estate = The Florida tax

The Department of Revenue argues, under the cited rule, it had authority to determine Florida’s proportionate credit based upon the gross value of the property taxable in Florida as it bears to the entire aggregate gross estate wherever situated. Simply stated, the Department of Revenue’s argument is that the indebtedness of a decedent’s estate must be apportioned between Florida and any other jurisdiction. It urges that the trial court erred in failing to apply its rule which is presumptively valid. Florida Citrus Commission v. Golden Gift, 91 So.2d 657 (Fla.1956); Agrico Chemical Company v. State, Department of Environmental Regulation, 365 So.2d 759 (Fla. 1st DCA 1978), cert. denied, sub nom., Askew v. Agrico Chemical Company, 376 So.2d 74 (Fla.1979). Under the circumstances of this case, it does not matter whether the gross value or the net value is employed. The rule is to aid in the implementation of the underlined portion of the formula em braced under Section 198.03, supra. In the instant case, the rule is not applicable because it ignores the first portion of the formula which only purports to allow Florida to levy a tax equal to the proportional credit allowable against the federal estate tax. Simply stated, Florida receives no proportionate sum or credit beyond that allowable under the Federal Revenue Act. Applying this test, it is clear that the Florida property did not increase the federal estate tax and, consequently, contributed nothing to the credit allowable to Florida. Instead, the purchase money encumbrance constituted a liability and actually decreased the credit allowable in the respective states under the Federal Revenue Act.

There may be innumerable instances where the cited rule is an aid in determining Florida’s credit or proportionate share of the federal tax credit allowable in the estate of a non-resident decedent. Because of the similarity Section 198.03 (non-residents) bears to Section 198.02 (residents), a like construction is in order. Any other construction of the factual circumstances of this case would be contrary to Green v. State ex rel. Phipps and Dickinson v. Maurer, supra, because it would impose a burden upon the estate in excess of the federal estate tax credit. This is not due to any constitutional prohibition under Article VII, Section 5 of the Florida Constitution. We are merely construing the non-resident statute in an analogous way with the resident statute out of respect for Florida’s interest in attracting investors which is summed up by the statement that “it costs no more to die in Florida” whether a resident of Florida or an owner of property subject to taxation in Florida.

Affirmed.

      . The promissory note executed by the decedent was without recourse so that it did not become a general obligation of her estate.

      . The Department of Revenue may promulgate rules pursuant to Section 198.08, Florida Statutes (1973). The rule is set forth in full, infra.

      . 198.02 Tax upon estates of resident decedents. — A tax is imposed upon the transfer of the estate of every person who, at the time of death, was a resident of this state, the amount of which shall be a sum equal to the amount by which the credit allowable under the applicable federal revenue act for estate, inheritance, legacy and succession taxes actually paid to the several states shall exceed the lesser of:
      (1) The aggregate amount of all constitutionally valid estate, inheritance, legacy and succession taxes actually paid to the several states of the United States (other than this state) in respect of any property owned by such decedent or subject to such taxes as a part of or in connection with his estate, or
      (2) An amount equal to such proportion of such allowable credit as the value of properties taxable by other states bears to the value of the entire gross estate wherever situate. All values shall be as finally determined for federal estate tax purposes.

      . 198.03 Tax upon estates of nonresident decedents. — A tax is imposed upon the transfer of real property situate in this state, upon tangible personal property having an actual situs in this state, upon intangible personal property having a business situs in this state and upon stocks, bonds, debentures, notes and other securities or obligations of corporations organized under the laws of this state, of every person who at the time of death was not a resident of this state but was a resident of the United States, the amount of which shall be a sum equal to such proportion of the amount of the credit allowable under the applicable federal revenue act for estate, inheritance, legacy and succession taxes actually paid to the several states, as the value of the property taxable in this state bears to the value of the entire gross estate wherever situate, [emphasis supplied]


text:
    ACTION FIRE SAFETY EQUIPMENT, INC.; Frank Falsetti and James O’Neill, Appellants, v. BISCAYNE FIRE EQUIPMENT COMPANY, INC., a Florida Corporation, Appellee.
    No. 80-1956.
    District Court of Appeal of Florida, Third District.
    May 12, 1981.
    Rehearing Denied June 17, 1981.
    Horton, Perse & Ginsberg, Ferrell & Ferrell and Milton M. Ferrell, Miami, for appellants.
    Daniels & Hicks and Sam Daniels, Miami, for appellee.
    Before HUBBART, C. J., and BARK-DULL and NESBITT, JJ.
   PER CURIAM.

This cause has previously been before this court, and an opinion and decision is reported in Action Fire Safety Equipment, Inc. v. Biscayne Fire Equipment Company, Inc., 383 So.2d 969 (Fla. 3d DCA 1980). In said opinion the cause was remanded to the trial court to further consider a motion for new trial. On remand, the trial judge did as he had originally done when the motion was before him, denied the same and utilized the following language:

“. . . the motion should be and the same is hereby denied. The Court finds and holds that Marion Einhorn’s testimony could not have been discovered before trial with the exercise of due diligence, was discovered since the trial, and was material. However, the testimony was merely cumulative and impeaching and probably would not have changed the jury’s verdict.”

The instant appeal is taken from the original final judgment as rendered by denial of the motion for new trial on remand. We affirm.

The prior opinion gave the trial judge the authority to deny the motion. We find no abuse of discretion and, therefore, we affirm the order here under review. Baxley v. Atlantic Coast Line Railroad Company, 110 So.2d 487 (Fla. 2d DCA 1959); Dade National Bank of Miami v. Kay, 131 So.2d 24 (Fla. 3d DCA 1961); Baptist Memorial Hospital, Inc. v. Bell, 384 So.2d 145 (Fla. 1980).

Affirmed.


author: PER CURIAM. HUBBART, Chief Judge

text:
    Anne Wheeler EVANS, Appellant, v. Loring P. EVANS, Jr., Appellee.
    No. 80-2096.
    District Court of Appeal of Florida, Third District.
    May 12, 1981.
    Rehearing Denied June 19, 1981.
    Sibley, Giblin, Levenson & Glaser and Marion E. Sibley, Miami Beach, for appellant.
    Daniels & Hicks and Sam Daniels, A. J. Barranco, Jr., Miami, for appellee.
    Before HUBBART, C. J., and SCHWARTZ and DANIEL S. PEARSON, JJ.
   PER CURIAM.

The final judgment of dissolution awarded the appellant alimony in the amount of $2,500 per month to be reduced to $1,250 per month after sixty months. We find this reduction to be error and reverse. See Foss v. Foss, 392 So.2d 606 (Fla. 3d DCA 1981); Colucci v. Colucci, 392 So.2d 577 (Fla. 3d DCA 1981). We remand with directions that alimony payments in the amount of $2,500 per month continue until the remarriage of the wife or the death of either of the parties. See DeVito v. DeVito, 393 So.2d 1189 (Fla. 3d DCA 1981). The final judgment of dissolution is otherwise affirmed upon the authority of Schwartz v. Schwartz, 396 So.2d 806 (Fla. 3d DCA 1981), and Rosen v. Rosen, 386 So.2d 1268 (Fla. 3d DCA 1980), rev. denied, 392 So.2d 1379 (Fla. 1981) (where the husband’s major assets are indisputably the result of inheritance or gift and unrelated to the labors of either party during coverture, the wife, in the absence of some other justification, is not entitled to a lump sum award simply by virtue of the husband’s ability to pay).

Affirmed in part; reversed in part and remanded with directions.

HUBBART, Chief Judge

(dissenting).

I must respectfully dissent. I would affirm the final judgment under review in all respects based on the authority of Canakaris v. Canakaris, 382 So.2d 1197 (Fla.1980); Rosenberg v. Rosenberg, 371 So.2d 672 (Fla. 1979), adopting 352 So.2d 867, 868-69 (Fla. 3d DCA 1977) (Hubbart, J., dissenting); Herzog v. Herzog, 346 So.2d 56 (Fla.1977); Shaw v. Shaw, 334 So.2d 13 (Fla.1976).

The trial court in the instant case did not award the wife herein permanent periodic alimony in the amount of $2,500 per month to be reduced to $1,250 per month after sixty (60) months as indicated in the court’s opinion herein. On the contrary, the trial court in the final trial court under review awarded the wife: (a) $1,250 per month in rehabilitative alimony for sixty (60) months; and (b) permanent periodic alimony in the amount of $1,250 per month, Said final judgment reads in pertinent part as follows:

“8. This Court specifically finds that the Respondent is an intelligent, attractive woman; in good health, and capable of contributing to her own support and maintenance. This Court also specifically finds that the Respondent is in need of and the Petitioner has the financial means to contribute to the Respondent’s support and maintenance for a period of time to enable the Respondent to enter the business world and obtain employment. This Court specifically finds that a reasonable period of time for the vocational rehabilitation of the Respondent is five (5) years. Accordingly, the Petitioner shall pay to the Respondent the sum of $1,250.00 per month as and for rehabilitative alimony, such payments commencing on the 15th day of August, 1980, and continuing to be paid on the 15th day of each and every month thereafter for a period of sixty (60) consecutive months, at which time all payments of rehabilitative alimony shall forever cease. In the event of the death of the Petitioner or Respondent or remarriage of Respondent prior to the expiration of the Petitioner’s obligation to pay rehabilitative alimony to the Respondent, all payments of rehabilitative alimony to the Respondent shall cease forever.
9. This Court further specifically finds that the Respondent needs and the Petitioner has the financial means by which to provide the Respondent with payments of periodic permanent alimony. Accordingly, the Petitioner shall pay to the Respondent the sum of $1,250.00 per month as and for periodic permanent alimony, such payments commencing on the 15th day of August, 1980, and continuing to be paid on the 15th day of each and every month thereafter until the death of Petitioner or Respondent or remarriage of the Respondent.”

This court now reverses the above judgment and remands the cause with directions that “alimony payments in the amount of $2,500 per month continue until remarriage of the wife or death of either of the parties.” The trial court cannot, however, simply adjust, as ordered, a $2,500 permanent periodic alimony award so as to delete a purported $1,250 reduction thereof because the trial court never awarded the wife $2,500 in permanent periodic alimony with such a reduction in the first place. In order to comply with this court’s remand order, the trial court will have to make the $1,250 rehabilitative alimony award, as provided in paragraph eight of the final judgment, permanent in nature — so that the wife has two separate permanent alimony awards of $1,250 per month each, for a grand total of $2,500 per month in permanent alimony. Any other result upon remand, pursuant to this court’s decision, makes little sense.

So far as I am aware, there is no authority in this state which reverses a trial court in a marriage dissolution action, as the court in effect does herein, for failing to give a wife two separate awards of permanent alimony; indeed, I know of no authority which would have authorized the trial court to make such a double award in the first place. Surely, the authorities cited in the court’s opinion do not even remotely stand for such a proposition.

Beyond that, the court has, in my view, reweighed the evidence in the record on appeal, substituted its judgment for that of the trial court, and concluded that the amount of permanent alimony given by the trial court to the wife was not enough; the court repairs this perceived insufficiency by requiring upon remand the above double permanent alimony award. This clearly is not our function as an appellate court. No demonstration has been made or could be made by the court that the trial judge acted arbitrarily without any competent evidence in ordering the permanent and rehabilitative alimony awards in this case; indeed, the record more than amply supports these awards. See e. g., Garrison v. Garrison, 351 So.2d 1104, 1105 (Fla. 4th DCA 1977). As such, it is our duty to affirm the judgment of the trial court and not retry this case on appeal as the court, in effect, has done herein. Canakaris v. Canakaris, 382 So.2d 1197 (Fla.1980); Rosenberg v. Rosenberg, 371 So.2d 672 (Fla.1979), adopting 352 So.2d 867, 868-69 (Fla. 3d DCA 1977) (Hubbart, J., dissenting); Herzog v. Herzog, 346 So.2d 56 (Fla.1977); Shaw v. Shaw, 334 So.2d 13 (Fla.1976).

In all other respects, I agree with the court’s disposition of this appeal. I would affirm.