author: CAMPBELL, Judge. GRIMES, Judge,

text:
    Larry Haynie FRYE, Appellant, v. Linda Ann FRYE, Appellee.
    No. 79-2233.
    District Court of Appeal of Florida, Second District.
    July 23, 1980.

      George M. Osborne of Osborne & Ciarcia-glino, St. Petersburg, for appellant.
    Larry G. Rightmyer, St. Petersburg, for appellee.
   CAMPBELL, Judge.

In this case, we deal for the first time in this district with the question of whether a court must terminate rehabilitative alimony upon the remarriage of the spouse receiving that alimony.

Larry and Linda Frye were married on August 30, 1975, and separated less than three years later. As part of the dissolution proceedings, the Fryes entered into an agreement entitled “Separation and Property Settlement Agreement” in which they made provisions for the custody, visitation, and support of their minor child as well as for her medical and dental expenses and college education. The agreement also provided for payment of $1,500 lump sum alimony and $900 attorney’s fees to Mrs. Frye, and made disposition of the couple’s automobiles and furniture. Finally, it called for the payment to Mrs. Frye of the amount of $20 per week for a period of 52 weeks and was specifically designated as “rehabilitative alimony”. The agreement was silent as to the effect of the remarriage of Mrs. Frye during that 52 week period.

The court entered a final judgment dissolving the marriage in which it incorporated the provisions of the Fryes’ agreement. Approximately three months later Mrs. Frye remarried. Thereupon, Mr. Frye, on the advice of his attorney, discontinued payment of rehabilitative alimony. Mrs. Frye then filed a motion asking the court to declare Mr. Frye in contempt or, in the alternative, to compel his compliance with the final judgment. Mr. Frye responded by filing a petition for modification of the rehabilitative alimony alleging only the remarriage of Mrs. Frye as support for the modification. After a hearing on these motions at which no evidence was offered, the court entered an order in which it directed Mr. Frye to make all of the rehabilitative alimony payments required by the property settlement agreement. Mr. Frye then instituted this appeal.

The court refused to modify the rehabilitative alimony provision primarily because it originated as part of a property settlement agreement, relying on Vance v. Vance, 143 Fla. 513, 197 So. 128 (1940). In order, then, to determine the correctness of the trial court’s ruling, we will first determine whether it depends on a reliance on the Vance case.

In Vance, the husband and wife entered into a property settlement agreement whereby the husband was to pay the wife $100 per month for six years and keep current a life insurance policy for her benefit. The payments were not designated as “alimony” payments. The wife, in turn, promised not to pledge the husband’s credit and, in the event of a divorce, not to claim dower or any other interest in the husband’s estate. They both agreed to divide between them their personal property which they had acquired during the marriage. Subsequently, they divorced, and the court incorporated the settlement agreement into its final decree. The wife then remarried and the husband sought to end the monthly payments of $100. The trial court granted the husband’s motion, thereby ending the payments. The supreme court reversed and said:

When there is no property settlement or other impediment in the way, the remarriage of a divorced wife will generally relieve the former husband from the payment of alimony but where a property settlement was in good faith entered into by the parties and it is shown that it was intended as a release of all claims of each against the other, including that for alimony and one or both the parties have acted in reliance on the provisions of the property settlement, it should not be disturbed merely because one of the parties remarried.

143 Fla. at 517, 197 So. at 130.

While Vance appears to be much like the present case because both involve payments to be made over a specified period of time, it may be distinguished. Cases subsequent to Vance which have dealt with the modification of the terms of agreements entered into at the time of divorce usually hold that only those portions of such agreements which are in the nature of property settlements are not modifiable and that provisions in such agreements which are true alimony provisions, even though not designated as such, are subject to modification as they would be had they not been part of an agreement but rather ordered by the court. See Fort v. Fort, 90 So.2d 313 (Fla.1956); Underwood v. Underwood, 64 So.2d 281 (Fla.1953); Friedman v. Friedman, 366 So.2d 820 (Fla. 3d DCA 1979); Ohmes v. Ohmes, 200 So.2d 849 (Fla. 2d DCA 1967).

Here, however, except for losing the right to make further claims against her husband by virtue of a mutual release clause contained therein, it cannot truly be said that Mrs. Frye gave up anything as a result of signing this agreement. Though the award in this case looks much like the contested provision in Vance, there the court treated the periodic payments as part of an overall property settlement and not as alimony and, therefore, not subject to modification. Here, however, it must be said that the periodic payments were, in fact, exactly what they were labeled, “rehabilitative alimony”. It should be noted, however, that at the time the supreme court decided Vance the concept of “rehabilitative alimony” was not in existence.

If, then, we feel we cannot appropriately apply Vance to the facts here, we must determine if the trial court’s denial of the husband’s petition can otherwise be sustained. Mr. Frye’s petition alleged that his wife had remarried and that she no longer needed rehabilitative alimony, and further that in the event she did need further rehabilitation, such rehabilitation should be the responsibility of her new husband. However, no evidence of Mrs. Frye’s need was presented. On appeal, Mr. Frye refers us to cases which hold that the recipient’s remarriage terminates the payor’s obligation to pay. Although those cases involved permanent periodic alimony, Mr. Frye argues that they should control here since there is no substantial distinction between permanent and rehabilitative alimony.

We do not agree that there is no substantial distinction between the types of periodic alimony. Rather, there appears to be a sufficient distinction in terms of philosophy and purpose to warrant a holding that the well-established rule requiring termination of permanent periodic alimony upon the recipient’s remarriage does not necessarily compel the same result when the periodic alimony is rehabilitative in nature.

Initially, it must be noted that all of the cases out of the Florida Supreme Court on this subject have dealt with termination, upon the recipient’s remarriage, of alimony in general — not with the specific type of alimony involved here. Moreover, those cases do not seem to set out a hard and fast rule requiring termination in all cases. And finally, all but one of those cases were decided prior to the advent of the concept of rehabilitative alimony. Six supreme court cases have touched on the question. Carlton v. Carlton, 87 Fla. 460, 100 So. 745 (1924); Vance v. Vance, 143 Fla. 513, 197 So. 128 (1940); Friedman v. Schneider, 52 So.2d 420 (Fla.1951); Chaachou v. Chaachou, 135 So.2d 206 (Fla.1961); In re Estate of Freeland, 182 So.2d 425 (Fla.1965); Canakaris v. Canakaris, 382 So.2d 1197 (Fla.1980). However, only Carlton and Fried man can be said to have directly confronted the issue of termination of alimony upon the recipient spouse’s remarriage, but as in the other cases permanent alimony was involved.

Carlton is generally regarded as the seminal case, and although the court stated that the divorced wife was not entitled to alimony or maintenance and support because she had remarried, that rule was enunciated in almost a factual vacuum. The facts which were recited, however, distinguish it from the instant case: The concept of rehabilitative alimony did not exist at that time, and the wife had remarried between the time the chancellor had refused to award alimony and the time he again considered the question after the supreme court, in Carlton v. Carlton, 78 Fla. 252, 83 So. 87 (1919), had reversed his initial refusal. We question the applicability of that case, decided fifty-six years ago, to the case sub judice.

In Friedman v. Schneider, the husband was ordered to pay an unallocated sum of $375 a month for both child support and alimony. The wife remarried three years later and the husband ceased payments. Citing Carlton, the court held that “[w]here the periodic payments represent only the amounts the court decides are necessary to afford shelter, food, and clothing . for the quondam wife, her marriage to another ends the obligation.” 52 So.2d at 421 (Emphasis added.) The court emphasized that “[t]he moneys to be paid by [the husband] seem only to have been ordered for the purpose of furnishing livelihood for the woman and child.” Id. As will be seen, that purpose significantly distinguishes the alimony involved in Friedman from rehabilitative alimony. Moreover, the court in that case mentioned the existence of a prior agreement which had provided for termination of alimony upon the wife’s remarriage. The rehabilitative alimony provision of the agreement involved in the instant case made no mention of the effect of remarriage.

All of the other supreme court cases expressed the termination rule in dicta. In Vance v. Vance, for example, the issue was whether an agreement between the parties was for alimony or for the settlement of property. (In holding that the agreement was one for the settlement of property and, thus, not modifiable, the court seemed to recede from its unequivocal rule in Carlton by stating that a wife’s remarriage will “generally” relieve her former husband from his obligation to pay alimony.) And in Freeland, the wife sought to obligate her ex-husband’s estate to continue paying periodic permanent alimony.

The most recent pronouncement of the supreme court was in Canakaris, which we feel did not conclusively resolve the issue here. Discussing permanent periodic alimony, the court stated that it is “most commonly used to provide support,” and is terminable as a general rule upon the recipient spouse’s remarriage. 382 So.2d at 1202. The court then contrasted rehabilitative alimony — “to establish the capacity for self-support of the receiving spouse, either through the redevelopment of previous skills or provision for the training necessary to develop potential supportive skills”— without stating that this type of alimony terminates upon remarriage. Id. The confusion arises from a later statement of the court in its discussion of a trial judge’s discretion to apportion assets, that “[wjhere a trial judge fails to apply the correct legal rule, as when he refuses to terminate periodic alimony upon remarriage of the receiving spouse, the action is erroneous as a matter of law.” Id. (First emphasis added.) “Periodic” is a term that describes a method of payment and, therefore, could refer to both permanent and rehabilitative alimony. If the reference to “periodic alimony” in the last quoted statement is meant to include both types of periodic alimony, then the court appears to be considerably expanding its earlier statement that permanent periodic alimony is terminable as a general rule upon the recipient’s remarriage. We must assume that the court did not necessarily intend the language emphasized above to so broaden its earlier statement as to signal to trial judges that they would also err as a matter of law if they refused to terminate periodic rehabilitative alimony upon the recipient’s remarriage. This is especially true in light of the fact that the court’s opinion was primarily concerned with permanent and lump sum alimony, and only briefly mentioned rehabilitative alimony. We believe the court was using periodic in the latter instance for the sole purpose of contrasting its earlier statement concerning termination of permanent periodic alimony with the rule concerning lump sum alimony, which is a vested property right. At any rate, since that statement appeared as dicta in the court’s discussion of a trial judge’s discretion, interpretation of what the court meant is purely speculative. Therefore, we do not believe that our highest court has unequivocally held that periodic payments of rehabilitative alimony are automatically terminable, without consideration of surrounding facts and circumstances, upon the recipient spouse’s remarriage.

However, those of our sister courts which have considered the issue have held that termination is automatic. Richter v. Richter, 344 So.2d 889 (Fla. 4th DCA 1977); Blackmon v. Blackmon, 307 So.2d 887 (Fla. 3d DCA 1974). In the latter case, the trial court had awarded to the wife as rehabilitative alimony the lump sum of $30,000 to be paid in equal monthly installments. When the wife remarried, the husband petitioned for modification. The trial judge denied the petition, stating that he had intended to and did in fact award lump sum alimony, and that the award had vested upon entry of the final judgment. The district court reversed, holding that rehabilitative, not lump sum alimony, had been awarded, and that such alimony was terminable upon the wife’s remarriage. The court’s opinion strongly implied that the trial court may order either rehabilitative or lump sum alimony, but not rehabilitative alimony payable in a lump sum, a position with which we cannot agree. Chief Judge Barkdull’s dissenting opinion also expressed disagreement:

The trial judge, at the time of the dissolution of the marriage, had the authority to award lump sum rehabilitative alimony. See: Kennedy v. Kennedy, Fla.1974, 303 So.2d 629 (1974); McRee v. McRee, Fla. App.1972, 267 So.2d 21. He had jurisdiction to entertain the motion to modify per the authorities in the majority opinion; this he declined to do, holding that in his original final judgment of dissolution he intended lump sum rehabilitative alimony.

307 So.2d at 889.

In Richter, no facts were recited in the majority opinion. Citing Blackmon, the majority merely held “that the trial court improperly ordered that the rehabilitative alimony award to the wife continue regardless of her remarriage.” 344 So.2d at 890. However, in light of the concurring opinion of Judge Dauksch, it must be assumed that there were surrounding facts and circumstances which justified the result. We strongly agree with Judge Dauksch’s opinion and set it out in full:

I understand rehabilitative alimony to be meant to assist the recipient in making a life for herself when the support from her former husband is no longer available or necessary. It is the impetus to shake prior reliances and live free. Without the statutory availability of rehabilitative alimony the court might have awarded lump sum alimony payable in installments or permanent periodic alimony to accomplish the same purpose. But these types of awards are too speculative and have the onerous ring of unnecessary support, in some cases. Rehabilitative alimony is a bit speculative but is usually awarded for a purpose, for example, to obtain an education, a certificate or some retraining in a former occupation. The amount needed is more easily determined but it is not an absolute, in most instances. Therefore the court should not absolutely have said rehabilitative alimony shall continue regardless of remarriage. Very possibly the remarriage might accomplish the rehabilitation in that the former wife has established herself in the occupation of housewife and receives her income and support from that source. On the other hand, a remarriage may not demonstrate the absolute rehabilitation of the wife. The days when women married for support have passed and the roles of the partners to a marriage are not stereotyped but vary from family to family. Thus for this court to determine that rehabilitation occurs or doesn’t occur upon remarriage is not grounded on reason. The provision that rehabilitative alimony would continue regardless of remarriage should be amended to read may continue regardless of remarriage in order to give to the parties an opportunity to “show cause” if remarriage occurs. I agree with the result in the majority opinion but resist the implication therein that rehabilitative alimony must always cease upon remarriage. But see dictum in Cann v. Cann, 334 So.2d 325 (Fla. 1st DCA 1976).

Richter v. Richter, 344 So.2d at 890. The only other statement of a district court of appeal concerning termination of rehabilitative alimony was dicta in Cann v. Cann, 334 So.2d 325, 329 (Fla. 1st DCA 1976): “Remarriage of the recipient also, of course, requires termination of rehabilitative alimony.”

The entire concept of alimony has undergone rather radical changes in the past ten years. Until those changes began to evolve, alimony was defined in Florida “[as] money required to be paid by a man to his former wife for her subsistence, [and it] derives from the legal duty to support her which he assumed when they married.” Friedman v. Schneider, supra, at 421; Reese v. Reese, 178 So.2d 913, 915-16 (Fla. 3d DCA 1965), rev’d on other grounds, 192 So.2d 1 (Fla. 1966). That definition was supported by Section 61.08, Florida Statutes (1969), and its predecessor statutes, which provided for alimony to the wife only. That concept was abandoned by the legislature in 1971 when it amended Section 61.08 to provide for alimony “to either party” to do equity and justice between the parties.

The concept of rehabilitative alimony is also a recent phenomenon of the same vintage and was provided to serve purposes distinct from those to be served by permanent alimony, although there may be some overlap in terms of “support”. The term “rehabilitative alimony”, when first authorized by Section 61.08(1) in 1971, appeared in the provision that “the court may grant alimony to either party, which alimony may be rehabilitative or permanent in nature. In any award of alimony, the court may order periodic or payments in lump sum or both.” However, it was left to the courts to determine what the term “rehabilitative” embraces and when such alimony should be awarded. The most appropriate definition of rehabilitative alimony was set out in Reback v. Reback, 296 So.2d 541, 543 (Fla. 3d DCA 1974):

The dictionary definition of the word “rehabilitate” is to “restore to a former capacity ... to put on a proper basis or into a previous good state again”. This word, when applied descriptively to alimony to wife a husband or wife may be entitled, assumes necessarily either a previous potential or actual capacity for self-support in the person seeking alimony which has been undeveloped or completely lost during the marriage. The ordinary definition indicates that “rehabilitative” alimony is appropriate in those situations where it is possible for the person to develop anew of [sic] redevelop a capacity for self-support, and should be limited in amount and duration to what is necessary to maintain that person through his training or education, or until he or she obtains employment or otherwise becomes self-supporting.

Accord, Canakaris v. Canakaris, supra. See also Murray v. Murray, 374 So.2d 622 (Fla. 4th DCA 1979); Jassy v. Jassy, 347 So.2d 478 (Fla. 2d DCA 1977); Lee v. Lee, 309 So.2d 26 (Fla. 2d DCA 1975); Mertz v. Mertz, 287 So.2d 691 (Fla. 2d DCA 1973). The following statement from the trial judge’s order in the instant case reflects the rationale for rehabilitative alimony enunciated by Judge Dauksch in Richter, quoted above: “The presumption that marriage in and of itself meets the economic needs of women no longer has a foundation in fact. Few women can now afford the luxury of not working. To penalize the petitioner for her remarriage appears to this Court to be manifestly unfair.”

In short, the purpose of rehabilitative alimony is to restore to a spouse who, because of the marriage, was either prevented from becoming or chose not to become self-supporting, those skills which would enable her or him to support herself or himself. This is, of course, an advantage to the payor spouse; but should it turn out that rehabilitation is impossible, the recipient spouse can still petition the court for a change to permanent alimony. Moreover, rehabilitative alimony serves society’s and the recipient spouse’s interests by encouraging that spouse to become self-supporting. Finally, the fact that rehabilitative alimony may be awarded in addition to permanent or lump sum alimony, or both, Canakaris v. Canakaris, supra; Cann v. Cann, supra; Section 61.08(1), Fla.Stat. (1977), further suggests that permanent and rehabilitative alimony serve distinctly separate purposes.

Permanent alimony, which is modifiable upon a showing of changed circumstances, reflects society’s belief that the spouse with the means to pay has a duty to provide the needy spouse with at least the basic necessities of life. This duty arises out of the marital relationship and is in part moral and in part society’s desire to avoid having the needy spouse become a public charge. Once the needy spouse has remarried, the other spouse’s moral duty ceases and society’s fears are supposedly allayed. It may, therefore, be proper to relieve the payor spouse of the obligation of support on the premise that the obligation has been assumed by another.

However, since rehabilitative alimony is paid for a specific purpose not necessarily related to the recipient spouse’s remarriage, it would seem to follow that it should not necessarily be terminated upon remarriage. True, rehabilitative alimony does serve a support function and is usually awarded instead of permanent alimony. In this particular case, for example, the wife was awarded lump sum alimony and rehabilitative alimony, but no permanent alimony. Nonetheless, the ultimate purpose of rehabilitative alimony is rehabilitation, and the question upon the recipient’s remarriage should be whether that event alone has served the rehabilitative purpose. We can conceive of a situation where a former spouse who is receiving rehabilitative alimony and who is in fact in the process of accomplishing that rehabilitation within the time frame provided, takes a new spouse who has little or no means or ability to provide any financial support to the new marriage. Where rehabilitative alimony has been awarded, as required by Section 61.08, “to do equity and justice between the parties,” it does not seem to us that the statute intends that a trial court, when faced with this hypothetical situation, must then turn around and terminate the award merely because the receiving spouse has remarried within the time frame initially deemed necessary for the spouse’s rehabilitation.

Therefore, when the husband here pled and proved nothing showing an altered need of the wife other than the mere fact of her remarriage, the trial court’s refusal to modify on that fact alone should be affirmed. However, this opinion does not preclude a spouse who is paying rehabilitative alimony from pleading and proving that a remarriage or other changed circumstances of the recipient spouse has eliminated or altered the need for further rehabilitative alimony. Once any such evidence other than the mere remarriage has been presented, the burden of proof of continued need should shift to the recipient spouse since the evidence as to the recipient spouse’s economic circumstances or those of the newly acquired spouse is peculiarly within his or her knowledge and may not be readily available to the payor spouse.

The order of the trial court is accordingly AFFIRMED.

BOARDMAN, Acting C. J., concurs.

GRIMES, J., dissents with opinion.

GRIMES, Judge,

dissenting.

I agree with the inapplicability of Vance v. Vance to this case. Since the concept of rehabilitative alimony had not been developed at the time of Vance, it was inevitable that the supreme court would treat the provision calling for payments of $100 per month for six years as an unmodifiable property award rather than a form of periodic alimony.

However, I must depart from Judge Campbell’s conclusion that remarriage will not terminate rehabilitative alimony in the absence of a showing of a change of economic circumstances. The law of Florida has always been that permanent alimony automatically terminates upon remarriage of the recipient spouse. I can see no meaningful distinction between permanent and rehabilitative alimony which would require a different result when the remarriage of the spouse receiving the alimony occurs. The arguments advanced by Judge Campbell to support the contention that rehabilitative alimony should not automatically terminate upon remarriage would appear to be equally applicable to permanent alimony. Until the rule with respect to permanent alimony is changed, I believe that rehabilitative alimony automatically terminates upon the remarriage of the recipient spouse. At least two of our sister courts hold the same belief, and the supreme court said as much in Canakaris.

I respectfully dissent.

      . Because of this latter fact, Carlton is similar to Claughton v. Claughton, 361 So.2d 752 (Fla. 3d DCA 1978), and Seale v. Seale, 350 So.2d 96 (Fla. 1st DCA 1977), which addressed the issue of whether a court can initially deal with the question of alimony where the wife has remarried after a final judgment reserving jurisdiction to determine alimony but before that determination has been made. It is noteworthy that each court interpreted Carlton differently and arrived at opposite conclusions. Seale concluded that Carlton applied only to periodic alimony and did not preclude an initial award of lump sum alimony after the remarriage. Claughton, however, interpreted Carlton as applying to all “alimony”, including lump sum. The disagreement reflects the difficulty which the courts have had in dealing with the types and manner of payment of alimony. See also note 4 infra.

      . In a case subsequently decided by that court, Claughton v. Claughton, supra note 1, the court reiterated the well-established rule regarding the vesting of lump sum alimony awards, but asserted in a footnote that an exception existed if a lump sum award is for rehabilitation and is payable in installments. In such a case, it was claimed that further installments would not be due after the recipient’s remarriage. Although this implies that it is proper to award rehabilitative alimony in a lump sum payable in installments, the court cited Blackmon, which, as indicated, did not so hold. Regardless of these inconsistencies, however, it is clear that our sister court is hostile to the idea of requiring a husband to continue paying rehabilitative alimony to his former wife after her remarriage.

      . It is also interesting to note that the court stated that “[l]ump sum alimony is justified only where it serves a reasonable purpose, such as rehabilitation . . 334 So.2d at 328. See note 2 supra.

      . Permanent or rehabilitative alimony may be payable periodically or in a lump sum. See § 61.08, Fla.Stat. (1977). Payment of either type of alimony in a lump sum should not be confused with “lump sum” alimony as that term was used in Canakaris. There, the court was referring to a type of alimony (not a method of payment) which may be awarded “to ensure an equitable distribution of property acquired during the marriage . . 382 So.2d at 1201. This type of alimony is not provided for in § 61.08, but has been judicially created.

      . As the trial judge suggested in the instant case, the old adage that two can live as cheaply as one is no longer necessarily true. Moreover, where the recipient spouse enters the new alliance with minor children, the “two” may be “four” or more, and they certainly cannot live as cheaply as one. Granted, the recipient spouse may also be receiving child support. But since child support is also based on the payor spouse’s ability to pay, there is no guarantee that it will compensate for the financial burden on the new marriage.


source: Caselaw Access Project

author: SCHWARTZ, Judge.

license: Public Domain

text:
    STATE of Florida ex rel. Jimmie, a minor, James I. TILDEN, Appellant, v. Diane Lock UTREVA, a/k/a Diane Fanning Fernandez, Appellee.
    No. 80—64.
    District Court of Appeal of Florida, Third District.
    July 29, 1980.
    Marsha B. Elser, Melvyn B. Frumkes, Miami, for appellant.
    Mershon, Sawyer, Johnston, Dunwody & Cole and Terry S. Bienstock, Miami, for appellee.
    Before HUBBART, SCHWARTZ and DANIEL S. PEARSON, JJ.
   SCHWARTZ, Judge.

In Tilden v. Locke, 383 So.2d 976 (Fla. 3d DCA 1980), we reversed a December 7,1979 order of the trial court which required the appellant-father to return the parties’ child to the appellee-mother after a short “visitation” which was to end on December 9. This appeal challenges a December 11, 1979 final order which granted permanent custody to the mother. For the reasons stated in and on the authority of Tilden v. Locke, supra, the order under review is likewise .reversed and the cause remanded with directions to enter judgment summarily enforcing the New York State Supreme Court award of custody to the father.

Reversed and remanded.

      . Contrary to the trial court’s statement at the earlier hearing that it would not be inclined to change permanent custody without a showing of a change of circumstances, no such evidence was presented prior to the entry of the December 11 order now before us. It is evident that it was entered because the father, in direct violation of the December 9 order, which was neither stayed nor superseded, did not return the boy to his mother, instead returned to New York with the child and was not present before the court on December 11. While we condemn the appellant’s defiance of the lower court, neither can we approve the use of a child custody award in this fashion as a means of punishing a parent. See Brooks v. Brooks, 20 Or.App. 43, 530 P.2d 547 (1975).


author: PER CURIAM.

text:
    Denise Lynn OMEL, Appellant, v. Walter Parker SIMPSON, Appellee.
    No. 79-1750.
    District Court of Appeal of Florida, Fourth District.
    July 16, 1980.
    Douglas S. Lambeth, Fort Lauderdale, for appellant.
    Lawrence J. Meyer of Meyer, Leben, Fix-el & Cantor, P. A., Hollywood, for appellee.
   PER CURIAM.

Appellant sued appellee in the Circuit Court of Broward County to set aside and cancel a deed to real property and to determine the legal title to certain personal property located in the improvements on said realty. From an adverse final judgment appellant has taken a plenary appeal.

Appellant is the daughter of Judith Omel Simpson, deceased, and appellee is the surviving spouse of said decedent. Shortly before decedent’s demise she executed a deed to her home to herself and her husband, appellee, as tenants by the entirety. After Mrs. Simpson’s death appellant filed this suit to set aside the deed on the grounds of undue influence and lack of mental capacity. Without reciting the evidence, suffice to say that after a full-blown trial the trial judge found in favor of the appellee. We find there is adequate support in the record for that ruling.

The home contained furniture, furnishings and other personal property at the time of Mrs. Simpson’s death. Appellant had prayed for an adjudication of her rights to said property. While no evidence was adduced to prove who owned said personalty, the final judgment held that the property described in the deed “together with all furniture, furnishings, fixtures, appliances and equipment contained therein, are the property of the Defendant herein.” The deed is silent as to the personal property and thus we find no support in the record for the adjudication of title thereto in the appellee.

Accordingly, we affirm the judgment appealed from in all respects except as to the disposition of the personal property. We reverse that feature of the judgment and remand the cause to the trial court with directions to take further testimony in order to determine the proper ownership of said personal property.

AFFIRMED IN PART; REVERSED IN PART; and remanded with directions.

LETTS, C. J., DOWNEY, J., and GEIGER, DWIGHT L., Associate Judge, concur.


text:
    Ronald ROLLE, Appellant, v. The STATE of Florida, Appellee.
    No. 77-919.
    District Court of Appeal of Florida, Third District.
    July 22, 1980.
    Bennett H. Brummer, Public Defender, for appellant.
    Jim Smith, Atty. Gen. and Anthony C. Musto, Asst. Atty. Gen., for appellee.
    Before HUBBART, J., CHAPPELL, BILL G., Associate Judge, and PEARSON, TILLMAN (Ret.), Associate Judge.
   PER CURIAM.

Ronald Rolle was convicted of grand larceny, and he now brings this appeal on several grounds.

One of the points raised is that Rolle’s right to confront witnesses was violated when the trial judge would not allow a question of a prosecution witness for the announced purpose of showing bias and self-interest of that witness.

The proffered question was:

“Isn’t it true that today you are presently under investigation, an active investigation by the state attorney’s office for perjury alleged to have occurred while you testified in Judge Alan R. Schwartz’ courtroom approximately three weeks ago?”

The basic general rule is that a witness may not be interrogated as to prior arrests or pending charges, but only as to prior convictions. Fulton v. State, 335 So.2d 280 (Fla.1976). If the witness admits a conviction, he cannot be examined to the point of naming the crime for which he was convicted. McArthur v. Cook, 99 So.2d 565 (Fla.1957). If the witness denies a prior conviction, the specific offense is identified only incidentally when the record of the conviction is entered into evidence. Fulton v. State, supra.

The prohibitions of this rule have been relaxed so that it has been firmly established that an accused has the absolute right to interrogate a prosecution witness who is presently or was recently under actual or threatened criminal charges or investigation leading to such charges so that the jury will be fully apprised as to the witness’ possible motive or self-interest with respect to the testimony he gives. Cowheard v. State, 365 So.2d 191 (Fla. 3d DCA 1978); Stripling v. State, 349 So.2d 187 (Fla. 3d DCA 1977); Morrell v. State, 297 So.2d 579 (Fla. 1st DCA 1974).

Here, through the proffered question, Rolle seeks to have the basic rule relaxed still further so that he may disclose to the jury that the specific crime of perjury is the subject crime in the investigation, and further, that the investigation was commenced at the direction of a specific trial judge following his presiding over a completely unrelated case. While we acknowledge that this court has agreed that a conviction of perjury has greater weight against the credibility of a witness than any other crime, and that such a conviction may be disclosed to a jury, Johnson v. State, 361 So.2d 767 (Fla. 3d DCA 1978), we do not wish to enlarge this exception to permit disclosure of the specific offense of perjury prior to a conviction. To do so would invite speculation by a jury as to the results of the investigation of the witness without benefit of evidence or proof which could very well unduly prejudice a jury against a witness. Meanwhile, upon cross-examining such a witness to show bias or self-interest, an accused would unduly and unfairly gain just as much advantage from a perjury investigation as a perjury conviction, thus enjoying a full and complete exception to the general rule restricting examination of a witness as to criminal convictions and investigations. With this we cannot agree, and we find that the trial judge properly ruled on the proffered question.

We have examined the other issues raised by Rolle and find them to be without merit. Accordingly, the judgment appealed is affirmed.

Affirmed.


author: DANIEL S. PEARSON, Judge.

text:
    Agustin FERNANDEZ, Appellant, v. MIAMI JAI-ALAI, INC., a Florida Corporation, and Edison Parking Corporation of Florida, a Florida Corporation, Appellees.
    Nos. 79-962, 79-1409.
    District Court of Appeal of Florida, Third District.
    July 22, 1980.

      Stabinski, Funt, Levine & Vega and Regina F. Zelonker, Miami, for appellant.
    Talburt, Kubicki & Bradley and Betsy E. Hartley; Pyszka, Kessler & Adams and Phillip D. Blackmon, Miami, for appellees.
    Before HENDRY, HUBBART and DANIEL S. PEARSON, JJ.
   DANIEL S. PEARSON, Judge.

Agustín Fernandez’s complaint for damages against Miami Jai-Alai, Inc. and Edison Parking Corporation of Florida was dismissed with prejudice. Fernandez alleged that he went to the fronton premises owned by Miami Jai-Alai, Inc. to watch and wager on the jai-alai games and while in the inadequately lighted parking lot (operated by Edison by virtue of a contract with Miami Jai-Alai, Inc.) was assaulted and stabbed by unknown persons who set about to rob him. He alleged also that the defendants (a) knew that like crimes of violence had previously occurred in the parking lot; (b) had reason to anticipate and foresee that such crimes would occur in the future; (c) knew or should have known that a large percentage of the fronton patrons carried substantial amounts of money; (d) knew that the premises were in a high crime area; (e) provided an inadequate number of security guards; (f) provided inadequately trained security guards; (g) knew or should have known from the coexistence of these factors that persons like Fernandez’s assailants would be tempted to take a chance, not at jai-alai, but at the more serious game of robbery; and (h) despite their knowledge, failed to warn Fernandez of the danger.

We agree with Fernandez that his complaint stated a cause of action and should not have been dismissed. Among the duties owed by the defendants to Fernandez, a business invitee, is the duty to guard against subjecting such invitee to dangers which the defendants might have reasonably foreseen. Sabatelli v. Omni International Hotels, Inc., 379 So.2d 444 (Fla. 3d DCA 1980); Rotbart v. Jordan Marsh Company, 305 So.2d 255 (Fla. 3d DCA 1974); Sparks v. Ober, 192 So.2d 81 (Fla. 3d DCA 1966). Included among those dangers is a criminal assault by a third party. Holley v. Mt. Zion Terrace Apartments, Inc., 382 So.2d 98 (Fla. 3d DCA 1980); Pitts v. Metropolitan Dade County, 374 So.2d 996 (Fla. 3d DCA 1979); Rotbart v. Jordan Marsh Company, supra. See also Concord Florida, Inc. v. Lewin, 341 So.2d 242 (Fla. 3d DCA 1976). If an intervening criminal act is foreseeable, the original negligence may be found to be the proximate cause of the damage sustained. Vining v. Avis Rent-A-Car Systems, Inc., 354 So.2d 54 (Fla.1977); Nicholas v. Miami Burglar Alarm Company, Inc., 339 So.2d 175 (Fla.1976); Gulfstar, Inc. v. Advance Mortgage Corporation, 376 So.2d 243 (Fla. 3d DCA 1979); Orkin Exterminating Company, Inc. v. Culpepper, 367 So.2d 1026 (Fla. 3d DCA 1979); Angell v. F. Avanzini Lumber Company, 363 So.2d 571 (Fla. 2d DCA 1978).

Fernandez’s complaint alleged the requisite foreseeability. The danger which the defendants allegedly could foresee is the danger of robbery of a patron, and a foreseeable consequence of that danger is the injury alleged to have been suffered by Fernandez. The present case is unlike Graham v. Great Atlantic & Pacific Tea Company, 240 So.2d 157 (Fla. 4th DCA 1970), and Wometco Theatres Corporation v. Rath, 123 So.2d 472 (Fla. 3d DCA 1960), where the violent consequences of a foreseeable intervening criminal act are not foreseeable. Nor is the present case one in which the plaintiff seeks to impose liability on the defendants as a result of the unpredictable behavior of a third party. Compare Warner v. Florida Jai Alai, Inc., 221 So.2d 777 (Fla. 4th DCA 1969), and Reynolds v. Deep South Sports, Inc., 211 So.2d 37 (Fla. 2d DCA 1968) (no liability on the part of sports establishments for injury caused by drunken fellow patron) with Sabatelli v. Omni International Hotels, Inc., supra, and Sparks v. Ober, supra (liability on the part of tavern for injury caused by drunken fellow patron). Concededly, an owner of a business establishment has no duty to protect his patrons from all crime, see Drake v. Sun Bank & Trust Company of St. Petersburg, 377 So.2d 1013 (Fla. 2d DCA 1979), but he does have a duty to protect them from those crimes which may be shown to be reasonably foreseeable and which may be shown to result in foreseeable risks.

Reversed.

      . The defendants essentially concede that the adequacy of the allegations concerning foreseeability is the only issue on appeal.

      . In Graham, the plaintiff was knocked down by a suspected shoplifter attempting to flee the defendant’s store; in Wometco, the plaintiff was struck by a suspected child molester attempting to flee the defendant’s theater. While the crimes of shoplifting and molesting might be foreseeable to owners of a grocery store and a theater, the foreseeable specific risk of these crimes is not that a patron would be hit and knocked down.

      . The distinction between injury caused by a drunk in a tavern or bar and injury caused by a drunk elsewhere is one of foreseeability. Of course, where a plaintiff can point to specific knowledge on the part of a non-tavern establishment which would make an attack by a drunk foreseeable, liability may be imposed.

      .In Drake, the Second District held that the complaint did not contain sufficient allegations of the bank’s foreseeability that its customers would be robbed in its parking lot. The plaintiff there merely alleged that the bank knew its customers often carried cash and therefore might be robbed. As distinguished from the complaint in the present cáse, the Drake complaint contained no allegations of prior incidents known to the bank, or any allegations that the bank recognized a danger by providing security guards. While the court in Drake upheld the trial court’s dismissal, it gave the plaintiff leave to amend, recognizing that allegations of foreseeability would render the complaint sufficient.


text:
    Elizabeth DUNCAN, Appellant, v. Roy W. ALLMAN, Appellee.
    No. 78-1978.
    District Court of Appeal of Florida, Fourth District.
    Oct. 10, 1979.
    Rehearing Denied July 23, 1980.
    Nancy Little Hoffmann, Fort Lauderdale, for appellant.

      Roy W. Allman, Fort Lauderdale, for ap-pellee.
   PER CURIAM.

This is an appeal from the denial of a motion to vacate a final judgment filed pursuant to Florida Rule of Civil Procedure 1.540(b). We have examined the record and find that the defendant/appellant’s affidavit filed in support of this motion does not contain facts sufficient to support relief under Rule 1.540(b). In addition, no record of the hearing on the motion has been filed with this court and we are advised by appellate counsel for the parties that no court reporter was present at the hearing. We note that appellate counsel was not trial counsel. The order below is, therefore, affirmed.

AFFIRMED.

LETTS, MOORE and BERANEK, JJ., concur.


author: DAUKSCH, Chief Judge.

text:
    John David JONES and Government Employees Insurance Co., Appellants, v. Lewis P. BARWICK and State Farm Mutual Automobile Insurance Company, Appellees.
    No. 79-117/T4-370.
    District Court of Appeal of Florida, Fifth District.
    Jan. 16, 1980.
    Rehearing Denied Feb. 25, 1980.
    W. Marvin Hardy, III of Gurney, Gurney & Handley, P. A., Orlando, for appellants.
    James 0. Driscoll of Driscoll, Langston, Layton and Kane, P. A. and W. David Rogers, Orlando, and Burke D. Chester, Dayto-na Beach, for appellees.
   DAUKSCH, Chief Judge.

This is an appeal from a summary judgment in a personal injury case. The issue in this case is the same issue decided in Florida Farm Bureau Insurance Company v. Government Employees Insurance Company, et al, 371 So.2d 166 (Fla. 1st DCA 1979); does a family exclusion clause in an automobile liability insurance policy prevent recovery by a joint tort-feasor through the Uniform Contribution Among Joint Tort-feasors Act, Section 768.31, Florida Statutes. We answer the question in accord with our sister court and reverse the summary judgment.

Briefly, the facts are that Barwick and Jones collided while both were driving their automobiles. Barwick’s wife was injured, so she sued Jones and won. Jones then sued Barwick and his insurer, State Farm Mutual Automobile Insurance Company, to require Barwick to contribute his share of the awarded damages. State Farm defended saying the policy between State Farm and Barwick excluded “. bodily injury to the insured, or any member of the family of the insured residing in the same household as the insured.” Because of this exclusion in the policy, State Farm urges it should not have to pay for the injuries its insured’s wife suffered, directly or by contribution to the other tort-feasor.

As this author said in Paoli v. Shor, 345 So.2d 789 (Fla. 4th DCA 1977) in language approved by our Supreme Court in Shor v. Paoli, 353 So.2d 825 (Fla.1977):

The doctrine of family or interspousal immunity is based on the desirability of the preservation of the family unit. The law of contribution of joint tortfeasors is meant to apportion the responsibility to pay innocent injured third parties between or among those causing the injury. In the case at bar it was determined that both Paoli and Shor caused the injury. Shor’s husband collected 100% of his damages from Paoli. To say that Shor doesn’t have to contribute and account for her wrongdoing would be unfair to Paoli and a windfall to Shor. This is not a case where the husband sued the wife on account of her negligence so we are not doing any real damage to the doctrine. This is a case where the joint tortfeasor sued the joint tortfeasor and we are ruling in support of that statute.

This court, along with the First District Court of Appeal in Florida Farm Bureau Insurance Company, supra, agrees with that reasoning and finds it applicable to these facts. Therefore, the policy exclusion for resident family members is not applicable in contribution cases.

The summary judgment is reversed and this cause is remanded to the trial court for further proceedings.

REVERSED AND REMANDED.

COBB and UPCHURCH, JJ., concur.


author: WATSON, RICHARD 0., Associate Judge.

text:
    John L. HARNISH and Virginia P. Harnish, his wife, Appellants, v. Paul F. PEELE, Appellee.
    No. 78-2711/T4-338.
    District Court of Appeal of Florida, Fifth District.
    June 4, 1980.
    Rehearing Denied July 29, 1980.

      Michael R. Walsh, Orlando, for appellants.
    Calvin J. Faucett, Orlando, for appellee.
   WATSON, RICHARD 0., Associate Judge.

.Paul F. Peele, the plaintiff, paid a $300.00 deposit and signed a contract to purchase a building for use as his chiropractic office. His inquiry into financing with a savings and loan left him doubtful he would be approved for a loan. His sister, Virginia P. Harnish and her husband, John L. Harnish, the defendants, agreed to apply for the loan. They did and were approved. Prior to the closing, the Harnishes indicated their desire to have title taken in their names to protect them against any claims of Peek’s ex-wife and his heirs. Upon closing in October 1972, the title was conveyed to the Harnishes by the seller and they executed the mortgage to the savings and loan association and paid approximately $8,100 cash at closing.

Thereafter, Peele, with the help of the Harnishes, renovated the building into an office suitable for his chiropractic practice. Peele made monthly payments to the Har-nishes in an amount equal to the monthly mortgage payment, the monthly payment due on a Title I loan obtained by the Har-nishes in order that Peele could remodel the building, and a variable amount equal to any sums advanced by the Harnishes for materials or costs related to the building.

Before the closing Peele and the Harnish-es agreed that anytime Peele paid them back the money the Harnishes would deed the property to him. In the words of Peele:

They informed me anytime that I could pay them back this money for those two months, two years, or ten years, they would gladly, with no hassle, sign the property back over to me with me paying them their money.

In 1977 Peele sold his chiropractic practice to another chiropractor. He demanded the Harnishes deed him the property and they refused. Peele then leased the property to the other chiropractor. The Harnishes notified the tenant they owned the property and the tenant thereafter paid the rent to them or their attorney.

Peele sued the Harnishes, contending in one count the Harnishes loaned him the money to purchase the property, agreed to hold title as security and to convey title to him when he paid them. Peele also sued for intentional interference with Peek’s advantageous business relationship. After a trial before the court, judgment was entered finding the Harnishes held title in a resulting trust and ordering the Harnishes to convey the property to Peele upon payment to the Harnishes of $9,047 plus 7V2% simple interest from the date of the closing. The trial judge also awarded Peele compensatory damages for the Harnishes’ interference with Peele’s business relationship with his tenant.

There are three situations in which the trust which arises is properly called a resulting trust:
(1) where an express trust fails in whole or in part;
(2) where an express trust is fully performed without exhausting the trust estate;
(3) where property is purchased and the purchase price is paid by one person and at his direction the lender conveys the property to another person.
In each of these cases there is an inference that the person taking title to the property is not intended to have the beneficial interest. .

V Scott, The Law of Trusts, sec. 404.1 (3rd ed. 1967).

A resulting trust arises when the legal estate in property is disposed of, conveyed or transferred, but the intent appears or is inferred from the terms of the disposition, or from accompanying facts and circumstances, that the beneficial interest is not to go to or be enjoyed with the legal title.

Howell v. Fiore, 210 So.2d 253 (Fla. 2d DCA 1968).

The trust arises by operation of law, but a vital element is the intent of the parties to create a trust relationship. The intention of the parties may be presumed from the facts. Smith v. Smith, 143 Fla. 159, 196 So. 409 (1940).

The evidence must be so clear, strong and unequivocal as to remove every reasonable doubt as to the existence of the trust. Goldman v. Olsen, 159 Fla. 435, 31 So.2d 623 (1947). Implicit in the trial court’s judgment is a finding that Peele and the Harnishes intended to create a trust relationship. There is sufficient evidence in the record to support that finding.

There is an additional element required to create a resulting trust which has received little attention in Florida case law. A passing reference was made to that element in Womack v. Madison Drug Co., 155 Fla. 335, 20 So.2d 256 (1944):

A resulting trust must arise, if at all, at the instant the deed is taken and legal title vests in grantee. The complaining party must have paid his share of the purchase price, or bound himself to the grantor by an absolute obligation to pay it. (Emphasis supplied)

Id. at 257.

Although the facts of Womack were dissimilar to the instant case, the court remarked that the agreement by the parties was “ . . too indefinite upon which to bottom a trust.”

There must be more than a privilege reserved in the person claiming the trust relationship to pay or not to pay at his election. There must be a debt which the grantee can enforce. As stated in Womack and restated in Turturro v. Schmier, 374 So.2d 71 (Fla. 3d DCA 1979), the person claiming the trust must have “ . . bound himself . . . by an absolute obligation to pay it.”

Peele’s agreement with the Harnish-es was that anytime he could he would pay them and they would deed him the property. There were no terms of repayment. Peele had no binding obligation to pay the Harnishes. He could either pay or not pay the money paid by the Harnishes at his option. Consequently, as stated in Wom-ack, the agreement between Peele and the Harnishes is too indefinite upon which to bottom a trust.

Caruthers v. Williams, 21 Fla. 485 (1885), did not consider the “absolute obligation” requirement. Further, the terms were more definite and Caruthers offered to repay Williams the week following the purchase.

The evidence is insufficient to support the court’s judgment finding a resulting trust. The judgment is

REVERSED.

ORFINGER and COBB, JJ., concur.


author: FRANK D. UPCHURCH, Jr., Judge.

text:
    Marilyn L. MARSHALL, and Glenn Raymond Marshall, a child, Appellants, v. Alexander J. MARSHALL, Jr., Appellee.
    No. 79-732/T4-478.
    District Court of Appeal of Florida, Fifth District.
    June 11, 1980.
    Rehearing Denied July 29, 1980.
    Patrick M. Magill, Ocoee, for appellants.
    Charles L. Steinberg, Orlando, for appel-lee.
   FRANK D. UPCHURCH, Jr., Judge.

Appellant, Marilyn L. Marshall, appeals a final judgment of dissolution of marriage from the Circuit Court for Orange County. Appellant raises as error the correctness of the court’s finding of no obligation for support of a child whom the husband had formally acknowledged as his own, but who, in fact, was no blood relation.

We reverse.

In the petition for dissolution, the wife alleged that one child had been born of the marriage. In the husband’s answer, he denied this and alleged that while he had signed certain papers which were filed with the Department of Health and Rehabilitation Services wherein he was shown to be the father of the wife’s child, the papers were signed at the request of the wife so that the child would carry the same surname as husband and wife. He also alleged that the wife agreed, should anything happen to the marriage, she would not hold him legally responsible for the support of her child.

The “certain papers” which the husband signed for this purpose were an application for an amended birth certificate and an accompanying affidavit in which husband and wife acknowledged that they were the natural parents. Based on these documents, an amended birth certificate was issued on which the husband was shown as the child’s father. Neither party disputes that the affidavits were untrue and that the husband was not the natural father.

The conclusions of the trial judge, as well as the arguments of the parties, evidence a basic misconception of the issue involved. Both the parties and the judge viewed this proceeding as a contest between the husband and the wife. However, the real party in interest is the child. In matters of custody and support, the best interests of the child must control. For this reason, we feel that the trial judge erred in finding that the husband was under no duty of support and thus we reverse.

The doctrine of equitable estoppel precludes a person from maintaining inconsistent positions to the detriment of another. Phoenix Ins. Co. v. McQueen, 286 So.2d 570 (Fla. 1st DCA 1973); United Contractors, Inc. v. United Construction Corp., 187 So.2d 695 (Fla. 2d DCA 1966). Although the wife may not have suffered any detriment due to the actions of the husband, the position of the child was altered to his detriment by amending his birth certificate. For example, had the child claimed support from his natural father, the birth certificate showing another as the father could be used as a defense. Therefore, the child should be allowed to argue that the husband is es-topped from denying his acknowledgment of paternity. And, even though the wife expressly promised not to seek support from the husband, her actions cannot be transferred to the child so as to defeat his claim.

In addition, the husband has made a false statement to the State of Florida concerning the paternity of the child and should not be afforded the aid of the court in avoiding his responsibilities. The courts will not assist a party in extricating himself from circumstances which he has created and will not assist in the perpetration of a fraud. See Marcel v. Marcel, 132 So.2d 210 (Fla. 2d DCA 1961); Hill v. Lummus, 123 So.2d 365 (Fla. 3d DCA 1960). Even assuming that the husband had not been guilty of any wrongdoing, as between two innocent parties, the one responsible for the situation should bear the loss. Joel Strickland Enterprises v. Atlantic Discount Co., 137 So.2d 627 (Fla. 1st DCA 1962); Parsley Brothers Const. Co. v. Humphrey, 136 So.2d 257 (Fla. 2d DCA 1962).

The party seeking equity should come with clean hands. If both parties have knowingly participated in the fraud, the court should leave them where it finds them. McMichael v. McMichael, 158 Fla. 413, 28 So.2d 692 (1947). Here, if the court leaves the parties where it found them, the husband remains for all purposes the natural father of this child; the child is legitimate and his welfare is served.

As noted above, the paramount concern is for the welfare of the child. The husband is presumed to have known the legal consequences of his actions. Since parents are legally obligated to support their minor children, the husband accepted this support obligation by acknowledging paternity. A change in parenthood should not be taken lightly nor should the “parent” be able to so easily divest himself of all responsibility upon the termination of the marriage. As Judge Walden noted in his dissent in Taylor v. Taylor, 279 So.2d 364, 370 (Fla. 4th DCA 1973):

When the legitimacy and support of a child rests unilaterally in the hands and at the whim of the husband, a child’s world would never be safe. His standing and status would be a day by day thing with the child powerless in the premise and the whole decision all the days of the child’s life would be in jeopardy.

We agree with the concern expressed by Judge Walden. We feel that in this instance, the best interests of the child would not be served by allowing the husband, now that he has the benefit of five years of hindsight, to so easily avoid the consequences of his actions.

We REVERSE and REMAND to the trial-court with directions to award child support.

ORFINGER, J., and MELVIN, WOODROW M., Associate Judge, concur.


text:
    Henry C. ANDERSON, Appellant, v. Laverne MARTINCIC, Appellee.
    No. NN-29/T1-43.
    District Court of Appeal of Florida, Fifth District.
    June 11, 1980.
    Rehearing Denied July 24, 1980.
    S. Gordon Blalock of Blalock, Holbrook, Akel & Poitevent, Jacksonville, for appellant.
    J. Doyle Tumbleson of Kinsey, Vincent, Pyle, Williams & Tumbleson, Daytona Beach, for appellee.
   DAUKSCH, Chief Judge.

This is an appeal from a judgment denying specific performance of a contract for the sale of a business.

The contract, absent the signature lines, witness lines and notary acknowledgment is set out in full below:

OPTION AGREEMENT
IN CONSIDERATION of the sum of ONE HUNDRED AND NO/100 DOLLARS ($100.00) in hand paid this date, receipt of which is hereby acknowledged, the undersigned LA VERNE MARTIN-CIC, Seller, grants to HENRY C. ANDERSON, Buyer, an option to purchase all of the capital stock and all of the corporate assets, together with all patent and trademark rights belonging to Dayto-na Automotive Fiberglass, Inc. and La-Verne Martincic, Individually, for the sum of ONE HUNDRED FIFTY THOUSAND DOLLARS ($150,000.00) and FIFTY AND NO/100 ($50.00) royalty on each Daytona Migi fiberglass body manufactured after date of closing of stock purchase, with minimum terms as follows:
$50,000.00 down upon the transfer of the stock and other assets and $25,-000.00 per year for the next four (4) years together with interest at the rate of 8% per annum; or,
upon such terms as are mutually agreeable to the Seller and the Buyer upon the closing of the stock and asset transfer.
The term of this option shall be for a period of ninety (90) days from the date of this Option Agreement. In the event the Buyer desires to exercise this option within the option period, he shall give written notice of his intent to exercise the option to Seller by Certified mail, return receipt requested at the following address:
852-910 Carswell Avenue
Holly Hiil, Florida 32017
This Option shall be binding upon the heirs, personal representatives, successors, and assigns of the Seller and shall inure to the heirs, personal representatives, successors, and assigns of the Buyer.
DATED this 18th day of November, 1977, at Daytona Beach, Florida.

The question on appeal is whether the agreement is so ambiguous to render it unenforceable. The trial court ruled it is; we disagree and reverse. The trial court properly found all conditions precedent were complied with but found the appellant had not carried his burden to prove “the terms and manner for payment of the purchase price and accordingly has failed to carry the burden of proof required to entitle Plaintiff to specific performance of the Option Agreement.”

In analyzing the agreement we find it is clear in its terms and that the manner of payment is set out quite clearly. The purchase price is one hundred fifty thousand dollars ($150,000.00) and a royalty of fifty and no/100 ($50.00) on each body manufactured. The manner of payment is either by paying $50,000.00 down when the stock and assets change hands, plus $25,000.00, plus interest, per year for the next four years or, upon any other mutually agreeable terms. This last phrase is apparently what the trial court found rendered the agreement ambiguous. It does not because it is mere sur-plusage, inherent in every contract.

The other point on appeal about the trial court having erred in admitting parol evidence is rendered moot by our finding the agreement not to be ambiguous. This agreement is clear in its terms, not open to a misinterpretation and cannot be “explained” by parol evidence so we are not substituting our judgment for that of the trial court in disputed evidence. J. C. Penney Co., Inc. v. Koff, 345 So.2d 732 (Fla. 4th DCA 1977).

The judgment is reversed and this cause is remanded for further proceedings on appellant’s complaint for damages after entry of judgment for appellant on his prayer for specific performance.

REVERSED AND REMANDED.

ORFINGER and FRANK D. UP-CHURCH, Jr., JJ., concur.


author: SHARP, Judge. COBB, Judge,

text:
    Margaret Miller JOHNSON, Appellant, v. Bernard A. JOHNSON, Appellee.
    No. MM-191/T1-24.
    District Court of Appeal of Florida, Fifth District.
    June 11, 1980.
    Rehearing Denied July 24, 1980.

      James G. Hahl of Raymond, Wilson, Conway, Barr & Burrows, Daytona Beach, for appellant.
    Garrett L. Briggs of Adams & Briggs, Daytona Beach, for appellee.
   SHARP, Judge.

The former husband and wife involved in this appeal were divorced in 1965, in Florida. The final judgment incorporated a “Property Settlement and Agreement” executed by the parties and their attorneys. Pursuant to this agreement each party received certain personal property. They agreed to refinance the marital home and use the proceeds to pay the debt on an automobile to be transferred to the wife and to pay off two mortgages on the home. The wife received the title to the home. The husband agreed to pay the mortgage and taxes on the house, and child support for the three minor children. He also agreed to pay the wife $350.00 per month as permanent alimony. In 1978 Bernard petitioned for termination of his alimony obligation and his duty to pay the mortgage and tax payments on the house, because the three children were in college or no longer living with the wife, and Margaret was earning an income sufficient for her own-support.

The trial court found that Bernard’s undertaking to pay the taxes and mortgage on the home was part of a property settlement agreement not modifiable under Florida law. Fowler v. Fowler, 112 So.2d 411 (Fla. 1st DCA 1959). We agree with this conclusion. However, the trial court found that the periodic alimony provision was modifiable. It terminated the husband’s alimony obligation, based on a finding that the wife substantially increased her income since the dissolution and had become self-supporting. The husband argues that because it does not appear that the former wife gave up any property rights in exchange for the alimony, this obligation is modifiable. Coffin v. Coffin, 368 So.2d 105 (Fla. 4th DCA 1979); Goerlich v. Goerlich, 358 So.2d 895 (Fla. 2d DCA 1978). We do not need to reach this question in this case, because we find there was no substantial change in the circumstances or the financial abilities of either party, and it was therefore an abuse of discretion to terminate the permanent alimony obligation.

At the time of the divorce the wife had been a housewife during the 20 years of their marriage. She had a college education but had not worked outside the home. During the marriage Bernard built a successful career as a salesman. He was frequently away from home, and Margaret cared for the children and the home, and supported his success in his career. They enjoyed a comfortable life style, which included membership in a country club, vacations in North Carolina and the “islands”, nice clothing for the wife, and an “enviable” social life.

Within a few months after the divorce, the wife took a part-time job as a clerk. Both parties apparently contemplated that it would be necessary for the wife to work outside the home after the divorce in order to meet her normal living expenses. She also attended school part-time, and managed to earn her certification as a teacher and a librarian. She inherited some funds from her parents, but those funds were largely exhausted at the time of the modifi- ■ cation proceedings. Margaret was never again able to achieve the standard of living she enjoyed during her marriage. She could not afford to paint the house or repair or replace the appliances, such as the dryer, refrigerator, stove, hot water heater, and furnace. She was driving a 1974 V.W. Beetle and had the same furniture in her home obtained during the marriage. She had a job as a librarian at $12,500 a year, but she lived very modestly. She had sought no increase in alimony or child support even though inflation and increased cost of living occurred over the 13 year period because she thought the agreement was not modifiable.

In contrast the evidence showed that Bernard was living very comfortably, even luxuriously by Margaret’s standards. His income approximated $60,000 per year. His second wife was also employed and he had no dependents. Bernard lived in an oceanfront home in Ormond Beach overlooking the Oceanside Country Club. He valued it at $175,000. It was furnished with antiques and new furniture worth $15,000. He and his wife enjoyed the country club and their own private pool at home. His net worth exceeded $200,000. He and his second wife were driving new Lincoln Continentals.

Clearly a permanent alimony award to Margaret was proper in the initial proceedings. McAllister v. McAllister, 345 So.2d 352 (Fla. 4th DCA 1977); Gordon v. Gordon, 335 So.2d 321 (Fla. 4th DCA 1976); Canakaris v. Canakaris, 382 So.2d 1197 (Fla.1980). Whether or not a sufficient change in circumstances occurred in this case requires the consideration of the totality of the parties’ circumstances. Taplin v. Taplin, 341 So.2d 1064 (Fla. 3d DCA 1977); Freeland v. Purcifull, 347 So.2d 726 (Fla. 2d DCA 1977). Where the alimony obligation is based on an agreement, a heavier burden is on the applicant to establish the change as sufficient. The lower court in this case disregarded the affluent circumstances of the former husband, and the situation established by the record that the former wife was living far below the standard of living she enjoyed during marriage and far below the former husband’s current standard of living. The lower court relied solely upon the fact that the former wife had obtained a full-time job paying $12,500 per year. Had she not done so, her living standard would have been near the “poverty level.” The divorced wife of a long term marriage who is awarded permanent alimony should not be faced with the prospect of losing her right to alimony if she becomes better educated, or if she earns a modest income as in this case. Mosher v. Mosher, 321 So.2d 450 (Fla. 2d DCA 1975); see Herbert v. Herbert, 304 So.2d 465 (Fla. 4th DCA 1974); McAllister v. McAllister, 345 So.2d 352 (Fla. 4th DCA 1977). This premise is even stronger where the parties agreed to the permanent alimony award initially, and where both contemplated it would be necessary for the former wife to become gainfully employed after the divorce.

REVERSED in part; AFFIRMED in part.

FRANK D. UPCHURCH, Jr., J., concurs.

COBB, J., concurs specially.

COBB, Judge,

concurring specially.

I concur in the result reached by the majority on the basis of Turner v. Turner, supra, fn. 2.

      . The parties’ agreement provided (in part):
      “9. In addition to the above, the Husband agrees to pay to the Wife as and for alimony the sum of three hundred fifty dollars ($350.00) per month and to continue said monthly payments so long as the Wife shall live or until she shall remarry.

      16. This agreement is intended to be a complete property settlement agreement and as the same provides for the distribution of the property owned by the parties hereto or controlled by them, it is not subject to modification or recision.”

      . See Turner v. Turner, 383 So.2d 700, (Fla. 4th DCA 1980).

      . Tsavaris v. Tsavaris, 307 So.2d 845 (Fla. 2d DCA 1975); Coe v. Coe, 352 So.2d 559 (Fla. 2d DCA 1977); Hagen v. Hagen, 308 So.2d41 (Fla. 3d DCA 1975).

      . The poverty level in 1978 for a woman living in the city was $3,190. Newspaper Enterprise Association, Inc., The World Almanac, p. 201 (1980).

      . See Turner v. Turner, 383 So.2d 700, (Fla. 4th DCA 1980).


text:
    Edward LEIBOLD, Appellant, v. The STATE of Florida, Appellee.
    No. 79-1952.
    District Court of Appeal of Florida, Third District.
    June 24, 1980.
    Rehearing Denied Aug. 15, 1980.

      Allen, Margol, Fryefield & McCaulie and Glenn Allen, Jacksonville, for appellant.
    Jim Smith, Atty. Gen., and Steven R. Jacob, Asst. Atty. Gen., for appellee.
    Before HENDRY and BASKIN, JJ., and PEARSON, TILLMAN (Ret.), Associate Judge.
   PER CURIAM.

This appeal is from a judgment finding the defendant guilty of murder in the third degree and from the sentence entered thereon. We find that none of the points on appeal, when viewed in light of the record, presents reversible error and, therefore, we affirm the judgment and sentence.

The first point presented urges error upon a ruling of the trial court permitting the State to ask prospective jurors on voir dire examination whether they would be influenced into rendering a verdict not based on the evidence because of the fact that the State’s chief witness was a participant in the criminal transaction and had been granted immunity from prosecution for the crime with which the defendant was charged. As the basis for this point on appeal, the defendant relies upon the case of Smith v. State, 253 So.2d 465 (Fla. 1st DCA 1971), for reversal.

We are mindful of the holding in Smith that the trial court should sustain a defense objection where prospective jurors are asked whether they would convict the defendant on the testimony of a witness who has been granted immunity. The effect of the questions asked in Smith was to commit the prospective jurors to a certain verdict if they accepted the testimony of the State’s witness. It is clear that great caution must be exercised by the State on voir dire examination' of this nature, "but this does not mean that all such questions are prejudicial. The questions in the present case did not seek to impose a limitation on the function of the jury, but rather were reasonably aimed to discover bias or prejudice against the State. After a careful review of the voir dire examination of the jury, we find no prejudice to the defendant in receiving a fair trial.

The second point presented claims error as the result of a statement by the arresting officer that the defendant, when arrested for a traffic violation and given his Miranda warnings, did not provide any information about the killing which had taken place and which was then unknown to the officer. The testimony of the officer was that the defendant had been cooperative but simply did not mention anything about the shooting or about the wounded man, who was in the car, until the wounded man spoke to the officer and made known his need for immediate medical attention. The defendant later gave a statement to the officer admitting his presence at the scene of the shooting.

No question of the defendant’s Fifth Amendment rights is at issue, but rather we are simply presented with a circumstance of the case that the defendant, although already engaged in conversation with the arresting officer, neglected or declined to mention his companion’s need for medical attention as a result of a gun battle. This case does not fall within the rule that when a defendant declines to make a statement after having been given his Miranda warnings, the failure to make a statement is not relevant to the defendant’s guilt. See, e. g., Doyle v. Ohio, 426 U.S. 610, 617-618, 96 S.Ct. 2240, 49 L.Ed.2d 91, 97-98 (1976). Here the defendant made a statement about the charge for which he was arrested but failed to give the further information that a shooting had occurred, under circumstances where an ordinary person would have been expected to speak. This circumstance was relevant to the defendant’s later statement in exoneration of himself, and had nothing to do with police interrogation.

The last point presented claims that the court should have granted the defendant’s motion for a judgment of acquittal at the close of all the evidence in the case. We hold that the trial judge correctly denied the motion because, when viewed in light of the rule stated in Everett v. State, 339 So.2d 704 (Fla. 3d DCA 1976), the evidence was sufficient to support a conviction.

Affirmed.


text:
    Samuel HARRIS, Appellant, v. Donald SOLVONIC, Jerry Wieczorek and the City of North Miami, a Municipal Corporation under the laws of the State of Florida, Appellees.
    No. 79-2026.
    District Court of Appeal of Florida, Third District.
    June 24, 1980.
    Rehearing Denied Aug. 15, 1980.
    Alan R. Dakan and William J. Williams, Miami, for appellant.
    John H. Lipinski, Miami, for appellees.
    Before HENDRY and BASKIN, JJ., and PEARSON, TILLMAN (Ret.), Associate Judge.
   PEARSON, TILLMAN, (Ret.), Associate Judge.

Appellant Samuel Harris was arrested and detained by two police officers of the City of North Miami because he refused to give them his name. The police officers were not investigating a crime or the violation of any municipal ordinance. Harris brought suit against the City and the police officers for false arrest and false imprisonment, resulting in a directed verdict for the defendant City and police officers entered at the close of the plaintiff’s case. This appeal is from a judgment entered upon the directed verdict. We reverse and hold that when a police officer uses his position to secure information where there is.no criminal charge and no criminal investigation, the officer may not arrest a person for failure to provide information.

Upon review of a directed verdict, the evidence must be viewed in the light most favorable to the party moved against. See Wheaton v. Bohnert Roofing and Supply Co., Inc., 369 So.2d 1016 (Fla.3d DCA 1979). So viewed and briefly stated, the police officers came to a restaurant where plaintiff Harris was employed as a cook. They were responding to a telephone call from a woman who complained that the plaintiff had been discourteous to her. When the officers arrived, the woman told them that she would not press charges for the plaintiffs arrest because the incident had involved only the exchange of words over the question of the manner in which the plaintiff had prepared her hamburger. She asked the officers to make a report of the incident so that she could complain to the plaintiff’s employers. In order to comply with this request and because it was necessary to turn in a report of the call to their superior, the officers approached the plaintiff and asked him for his name. When he refused to talk to them, he was forcibly arrested and was taken to the officers’ police car. The plaintiff then gave the officers his name and address and was released. No arrest report was made.

The officers were not investigating a crime nor had any misdemeanor been committed in their presence. They were without authority to require the plaintiff to cooperate in their inquiry. The officers had no legal basis upon which to arrest the plaintiff. His forcible arrest and the deprivation of his liberty appear on this record to establish a prima facie case of.false imprisonment. See Phillips v. State, 314 So.2d 619 (Fla.4th DCA 1975). See also Kanner v. First National Bank of South Miami, 287 So.2d 715 (Fla.3d DCA 1974), for the elements of false imprisonment.

Another issue is presented for our consideration concerning a second count alleging the negligence of the City of North Miami in its selection and training of police officers. Upon review of this matter, we find that the plaintiff did not present a prima facie case and, therefore, this point must be affirmed.

Accordingly, we affirm the directed verdict of the count alleging the negligence of the City of North Miami, but we reverse the directed verdict of the count alleging the false imprisonment of the plaintiff. The cause is remanded for further proceedings on the false imprisonment count.

Affirmed in part, reversed in part, and remanded.


author: DOWNEY, Judge.

text:
    ST. PAUL MERCURY INSURANCE CO., Appellant, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE CO.; Charles H. Brayton, Harry D. Dennis, Jr., Appellees.
    No. 78-1919.
    District Court of Appeal of Florida, Fourth District.
    June 25, 1980.
    Rehearing Denied Aug. 15, 1980.

      John P. Wiederhold of Pomeroy, Betts & Wiederhold, West Palm Beach, for appellant.
    Steven R. Berger of Carey, Dwyer, Cole, Selwood & Bernard, Miami, for appellee-State Farm Mut. Auto. Ins. Co,
   DOWNEY, Judge.

The central issue in this case is the meaning of the term “newly acquired automobile” contained in an insurance policy issued by appellee, State Farm Mutual Insurance Company.

Charles J. Brayton was killed as a result of the negligent operation of an automobile owned and operated by Joseph Tabit. Ta-bit had just recently purchased the automobile at a time when he was also the owner of a 1972 Kawasaki motorcycle which was insured by State Farm.

> Brayton’s Administrator sued Tabit and State Farm for wrongful death, and State Farm denied coverage. Brayton’s Administrator then made a claim for uninsured motorist coverage against Brayton’s insurance carrier, St. Paul Mercury Insurance Company. After paying uninsured motorist benefits to the Administrator, St. Paul filed a third party complaint against State Farm, alleging that State Farm did, in fact, have insurance coverage for Tabit applicable to the accident in question. The trial court entered a summary judgment in favor of State Farm and this appeal ensued.

The record reflects that Tabit owned a basic State Farm automobile policy, which had what is known as a “6279D Motorcycle Endorsement.” The basic policy defined “newly acquired automobile” as a four wheel land motor vehicle. However, the motorcycle endorsement specifically deleted the basic policy definition of “automobile.” In addition, it deleted the definition of “owned motor vehicle” and replaced the deleted definition with the following definition of “owned motor vehicle”:

“. the motor vehicle described in the declarations [the motorcycle], and includes a newly acquired automobile.” (Emphasis in policy).

The motorcycle endorsement deleted the basic policy definition of “newly acquired' automobile” and redefined that term as:

. .a motor vehicle of the same type as the described motor vehicle [the motorcycle], ownership of which is acquired by the named insured . . . .”

Thus, the endorsement changes the meaning of “newly acquired automobile” from a four wheel land vehicle to a motorcycle.

In its brief appellee characterizes the State Farm basic policy motorcycle endorsement as follows:

“. . . the intent and meaning of the policy and endorsement was clear. STATE FARM desired to take, and in fact took, its basic automobile insurance policy and modified it by endorsement to provide coverage as extended and limited therein to an insured who owned a motorcycle instead of a four wheel motor vehicle. The language itself is clear and easily conveys its meaning to all who may read it, especially where coverage for newly acquired automobiles is concerned. Such coverage, as broadly defined in the basic policy, was narrowed in the endorsement to include only those vehicles of the same type as the vehicle (i. e. motorcycle) which was insured under the policy and for which a premium was paid. ” (Emphasis appellee’s.)

We feel the foregoing is an apt characterization of the State Farm contract with Tabit.

There was deposition evidence before the trial court that several days before the accident in question Tabit’s mother called the State Farm agent and advised him Tabit had purchased a new automobile. She asked if it would be covered under the motorcycle policy and was told that it would not be covered. An additional premium of $200 would be necessary to afford that coverage. Mrs. Tabit indicated she wanted to look around for less expensive coverage and State Farm was never asked to write the additional coverage. Of course, the difference in the premium for coverage for a motorcycle and a four wheel automobile, as State Farm shows in the above quoted portion of its brief, is significant.

From our study of this record and the briefs of the parties we are of the view that appellant has failed to demonstrate reversible error.

AFFIRMED.

LETTS and ANSTEAD, JJ., concur.

      "1The reason for this is obvious. The liability exposure is much greater where an automobile is concerned because of its potential for doing great harm. The record bears this out since it indicates that the premium for motorcycle coverage was only $75.70 while the premium to add automobile coverage was an additional $200.00.”


author: OTT, Judge.

text:
    Calvin deMARLOR, d/b/a the Upperdeck Restaurant, Appellant, v. FOLEY CARTER INSURANCE COMPANY, a Florida Corporation, J. H. Gardner Gould, and Employers Reinsurance Corporation, Appellees.
    No. 79-1321.
    District Court of Appeal of Florida, Second District.
    June 25, 1980.
    Rehearing Denied July 25, 1980.

      Jere M. Fishback of Jenkins, Fischer & Brook, St. Petersburg, for appellant.
    Thomas Saieva of Woodworth & Saieva, St. Petersburg, for appellees.
   OTT, Judge.

Appellant filed this action for damages allegedly sustained when appellees (1) breached their contractual duty to procure adequate insurance on his restaurant, and (2) breached their fiduciary duty to him by conspiring with others to deprive him of such insurance proceeds as did become available when the restaurant was destroyed by fire. The case came on for trial by jury, but after appellant presented his evidence the court directed a verdict for appellees on both causes of action. We reverse.

The dispositive rule governing this case is that in ruling on a motion for directed verdict the court must consider only the evidence and inferences favorable to the nonmoving party, and ignore evidence favorable to the movant. Carson v. Gulf Oil Corp., 123 So.2d 35 (Fla. 2d DCA 1960). A motion can be granted only if, viewed in that light, there is no evidence which would support a verdict for the opposing party. Ahearn v. Florida Power and Light Co., 129 So.2d 457 (Fla. 2d DCA 1961).

The instant record contains evidence which, if believed, could lead reasonable men to conclude that appellant took a copy of his restaurant lease to appellees, discussed his insurance needs and his obligation to insure the premises in which his restaurant was located, and instructed ap-pellees to procure all of the coverage required by the lease; that appellees promised to do so but failed to obtain fire insurance on the structure, although the lease expressly and clearly required appellant to procure such coverage. To compound that nonfeasance, there is evidence from which the jury might conclude that appellees were obligated to advise appellant that such coverage hád not been obtained, but that appellant was not made aware of the omission until after the fire.

We believe the evidence could support a verdict for appellant on his first cause of action. An insurance agent or broker who agrees or undertakes to procure certain insurance coverage owes his principal a duty to do so within a reasonable time. If, through his own fault or neglect, he fails to do so, he may become liable for any resultant damages. Even when he is not to blame for the failure to obtain coverage the agent may nevertheless become liable for damages if he fails to inform his principal that the requested insurance has not been procured. Cat ’n Fiddle, Inc. v. Century Insurance Co., 200 So.2d 208 (Fla. 3d DCA 1967).

As for the second cause of action, the record contains evidence indicating, if believed, that when appellees received the proceeds from -the insurance written on appellant’s restaurant business, their officers connived with another client (the owner of the restaurant building, who had originally recommended appellees to appellant) to hold up distribution of the money on the pretext it had not arrived, until a suit could be filed by the owner to tie up the funds and recover damages for appellant’s failure to procure the insurance on the restaurant structure that the lease required. The law requires the appellees to deal with appellant in good faith and not to take advantage of him by serving a second master. Van Woy v. Willis, 153 Fla. 189, 14 So.2d 185 (1943). A deliberate violation, in bad faith, could justify an award of punitive damages. Campbell v. Government Employees Insurance Co., 306 So.2d 525 (Fla.1974); Richards Company v. Harrison, 262 So.2d 258 (Fla. 1st DCA 1972).

We reject, as unsupportable in the law, appellees’ theory that appellant’s affirmative defenses to the action by his landlord are binding upon him insofar as they are inconsistent with his position in the present proceeding. He did not prevail on those defenses (actually, the case never got to trial), therefore, the doctrine of equitable estoppel could not arise. Grauer v. Occidental Life Ins. Co. of Cal., 363 So.2d 583 (Fla. 1st DCA 1978); Bryant v. Stevens, 313 So.2d 124 (Fla. 2d DCA 1975).

We also reject appellees’ contention that the directed verdicts were proper because appellant sustained no monetary damage from the negligence and/or treachery of his brokers. His losses in the first cause of action are easily calculated by simply comparing what he would have recovered had the premises been fully insured, with his actual net recovery. As to the second cause of action, appellant testified that he was forced by economic necessity to settle his landlord’s lawsuit because all the insurance money was tied up. Had appellees not helped tighten those pragmatic screws, which not only benefited their other client but also kept their own skirts clean of involvement in a cross-complaint, appellant would not have sustained that loss.

We believe that the evidence on both causes of action entitled appellant to take his case to the jury, and that as a consequence the court erred in directing a verdict in favor of appellees. The judgment is reversed and the case is remanded for a full trial.

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

      . The cited opinion affirmed a directed verdict in favor of the insurance company and reversed a directed verdict in favor of the agent broker. The Florida Supreme Court later granted cer-tiorari and ruled that the directed verdict in favor of the insurance company also should have been reversed. 213 So.2d 701 (Fla.1968). That portion of the DCA opinion cited here was not vacated or affected.


author: BOARDMAN, Acting Chief Judge.

text:
    STATE of Florida, Appellant, v. Marvin DENNIS, Appellee.
    No. 79-1867.
    District Court of Appeal of Florida, Second District.
    June 25, 1980.
    Rehearing Denied July 24, 1980.

      Jim Smith, Atty. Gen., Tallahassee, and Eula Tuttle Mason, Asst. Atty. Gen., Tampa, for appellant.
    Jack 0. Johnson, Public Defender, Bar-tow, and Susan G. Sexton, Asst. Public Defender, Tampa, for appellee.
   BOARDMAN, Acting Chief Judge.

This appeal presents the issue of whether the county court or the circuit court has jurisdiction over a juvenile when the state files a direct information charging the juvenile with a misdemeanor. We hold that jurisdiction is in the county court.

The state filed an information in the county court charging appellee, a sixteen-year-old juvenile, with a misdemeanor. The information was filed pursuant to Section 39.04(2)(e)4, Florida Statutes (1979), which authorizes the state attorney to criminally prosecute a juvenile who is sixteen years of age or older as an adult when the juvenile has in the past committed two delinquent acts, one of which involved a felony offense. Appellee filed a motion to dismiss on the ground that because he was a juvenile, jurisdiction was properly in the circuit court. Following denial of the motion, appellee filed a petition for writ of prohibition in the circuit court. The circuit court entered an order ruling that the county court did not have jurisdiction over ap-pellee. This appeal followed timely.

In State v. Cain, 381 So.2d 1361 (Fla.1980), our supreme court held that a juvenile charged with a crime has no constitutional right to juvenile treatment. The court stated that “while exclusive jurisdiction over juveniles is initially vested in the juvenile division of the circuit court, this jurisdiction is expressly qualified to the extent of the statutory exceptions . . . .” Id. at 1366. The legislature has enacted an exception from juvenile treatment for juveniles ages sixteen or older when, in the discretion of the state attorney, the public interest requires that the juvenile be prosecuted as an adult. § 39.04(2)(e)4, Fla.Stat. (1979). Because appellee in this case was tried as an adult pursuant to this statutory exception, the county court had jurisdiction over his misdemeanor case.

Accordingly, the circuit court’s order is REVERSED.

SCHEB and CAMPBELL, JJ., concur.

      . In the event that appellee is ultimately convicted in the county court, that court must conduct a disposition hearing pursuant to Section 39.111(6), Florida Statutes (1979), prior to sentencing.


author: SCHEB, Acting Chief Judge.

text:
    Clementine WILLIAMS, Appellant, v. STATE of Florida, Appellee.
    No. 79-1917.
    District Court of Appeal of Florida, Second District.
    June 25, 1980.
    Rehearing Denied July 29, 1980.

      Jack 0. Johnson, Public Defender, Bar-tow, and Allyn Giambalvo, Asst. Public Defender, St. Petersburg, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Michael J. Kotler, Asst. Atty. Gen., Tampa, for appellee.
   SCHEB, Acting Chief Judge.

Clementine Williams appeals her conviction and sentence for manslaughter. She contends that the trial court erred in not allowing her to attack the credibility of the state’s chief witness by cross-examining the witness as to a false statement made to the police on a prior occasion. We agree and reverse.

A grand jury indicted Williams for the first degree murder of Allan Maultsby. Maultsby died as a result of a shooting that occurred during a verbal confrontation between Williams, Maultsby and Delores Brown. Williams and Brown were the only witnesses to the shooting and their testimony at trial conflicted.

Williams testified that early on the evening of the shooting she had attempted to talk with Maultsby but he had refused to speak with her. Later, she went to Brown’s residence where she met Brown and Maultsby in the driveway and once again requested to speak to Maultsby. According to Williams, Brown came toward her with a gun in her hand, cursing and waving the gun. Williams returned to her car and got her gun. Brown struck her and asked her to leave, but Williams insisted on talking to Maultsby. Maultsby indicated that he would talk to Williams and he and Williams then walked to a nearby fence. Brown followed them, came from behind Maultsby and grabbed Williams. A struggle followed and Williams testified that the gun in her hand discharged when Brown grabbed her hand during the struggle.

Brown testified that on the night of the shooting Williams had been following her and Maultsby in an attempt to talk to Maultsby. Williams, carrying a gun in her hand, confronted Brown and Maultsby in the driveway of Brown’s home. An argument ensued, during which Brown said that Williams hit her in the face with the gun. Williams raised her gun at Maultsby, at which point Brown stepped between Williams and Maultsby. Williams then struck Brown a second time with the gun, causing Brown to fall between Williams and Maultsby. While Brown was attempting to get up, and still dazed, she saw someone’s hands in the air. She heard one shot, and Maultsby then fell to the ground.

While cross-examining Brown, the defense attempted to ask her about lying to the police on a previous occasion. The state objected and the defense proffered Brown’s testimony. The proffer established that another girlfriend of Maultsby’s had thrown a brick at Brown’s car sometime in the past and that Brown had called the police but, at Maultsby’s request, had lied and told them she did not know who had thrown the brick.

The trial court erred in refusing to allow the defense to cross-examine Brown regarding her prior false statement to the police. Brown was the key prosecution witness because she was the only witness to the shooting other than Williams. Thus, her credibility was a crucial issue. In Stradtman v. State, 334 So.2d 100, 101 (Fla. 3d DCA 1976), approved, 346 So.2d 67 (Fla.1977), the Third District Court of Appeal held:

[I]t is a well recognized rule that limiting the scope of cross-examination in a manner which keeps from the jury relevant and important facts bearing on the trustworthiness of crucial testimony constitutes error, especially where the cross-examination is directed to the key prosecution witness.

Accord, Morrell v. State, 335 So.2d 836 (Fla. 1st DCA 1976). We agree and hold that it was error for the court to refuse to permit defense counsel to impeach Brown’s credibility by showing that she had lied to the police on a prior occasion. This right is particularly important in a capital case such as this where a defendant’s right to cross-examine witnesses is carefully guarded, and limiting cross-examination on any matter plausibly relevant to the defense may constitute reversible error. Coxwell v. State, 361 So.2d 148“ (Fla.1978).

We find Williams’ other point to be without merit. Accordingly, we reverse the judgment and sentence and remand for a new trial.

RYDER and CAMPBELL, JJ., concur.

      . Williams was on trial for first degree murder although the jury convicted her of manslaughter.