author: PER QURIAM.

text:
    Carl L. ALTCHILER, Appellant, v. STATE of Florida, DEPARTMENT OF PROFESSIONAL REGULATION, DIVISION OF PROFESSIONS, BOARD OF DENTISTRY, Appellee.
    No. AK-95.
    District Court of Appeal of Florida, First District.
    Dec. 8, 1983.

      Robert Dyer of Duckworth, Allen, Dyer & Pettis, Orlando, for appellant.
    Salvatore A. Carpino, Dept, of Professional Regulation, Tallahassee, for appel-lee.
   ORDER IMPOSING SANCTIONS

PER QURIAM.

Appellee moved to strike appellant’s appendix and Count I of the initial brief because the appendix contained material that was not in the record on appeal and much of the argument in Point I was based on that material. Appellant responded to the motion and explained why he believed that references outside the record were necessary. After full consideration of his argument, the court issued an order granting the motion to strike and directing appellant to file an amended brief which conformed to the record on appeal.

Thereafter, appellant filed an amended initial brief. Appellee again moved to strike, and requested an order imposing sanctions, because the amended initial brief referred to the same matters that the court had ordered stricken from the appendix and original initial brief. In response to the motion, counsel for appellant stated that he “stands on his brief and believes that the approach taken is entirely proper; counsel further believes that any other approach to the issue would be a disservice to his client and this court.” Counsel then proceeded, once again, to argue the reasons for including references to matters outside the record.

After considering the motion and the response by counsel, this court issued an order directing counsel for appellant, Robert Dyer, Esquire, to appear at this court and show cause why he should not be held in contempt and punished accordingly for his disregard of the appellate rules and his failure to properly prosecute this appeal. In his oral explanation to the court, counsel again insisted that he was correct in including in the briefs references to matters outside of the record and did not seem to recognize that the order of this court striking the initial brief and the appendix resolved the issue.

It is fundamental that an appellate court reviews determinations of lower tribunals based on the records established in the lower tribunals. As we said in Hillsborough County Board of County Commissioners v. PERC, 424 So.2d 132, 134 (Fla. 1st DCA 1982):

An appeal has never been an evidentiary proceeding; it is a proceeding to review a judgment or order of a lower tribunal based upon the record made before the lower tribunal. An appellate court will not consider evidence that was not presented to the lower tribunal ...

When a party includes in an appendix material or matters outside the record, or refers to such material or matters in its brief, it is proper for the court to strike the same. See, e.g., Gilman v. Dozier, 388 So.2d 294 (Fla. 1st DCA 1980); Finchum v. Vogel, 194 So.2d 49 (Fla. 4th DCA 1966); Sheldon v. Tiernan, 147 So.2d 593 (Fla. 2nd DCA 1962). That an appellate court may not consider matters outside the record is so elemental that there is no excuse for any attorney to attempt to bring such matters before the court. See Mann v. State Road Dept., 223 So.2d 383 (Fla. 1st DCA 1969). However, our major concern is not counsel’s lack of knowledge of appellate practice and procedure; it is that counsel chose to ignore an order of this court. Although counsel orally asserted to this court that he had not interpreted the order to mean that all reference to matters outside the record had to be eliminated from the amended brief, we cannot accept such explanation. The original order stated that “[ajppellant shall file an amended brief which conforms to the record on appeal ....” We do not think that this language is susceptible to the interpretation put forth by counsel.

We find that counsel intentionally disregarded an order of this court and that sanctions should be imposed. The willful disobedience of an order of this court constitutes an affront to this court’s authority and is punishable by criminal contempt. See, e.g., State ex rel. Garlovsky v. Eastmoore, 393 So.2d 567 (Fla. 5th DCA 1981); Sandstrom v. State, 309 So.2d 17 (Fla. 4th DCA 1975). However, contempt is a severe sanction that will not be imposed unless it is apparent that other sanctions would be inadequate. We believe that, in this case, a less severe sanction would be appropriate.

By publication of this order, Robert Dyer, Esquire, is publicly reprimanded for the manner in which he handled this appeal. He is warned that any future violations of the appellate rules or disregard of an order of this court, in this or any other case, may result in a finding of contempt. Mitchell v. State, 433 So.2d 632 (Fla. 1st DCA 1983). A copy of this order will be forwarded to the Florida Bar for any action it may deem warranted.

IT IS SO ORDERED.

MILLS, BOOTH and SHIVERS, JJ., concur.


source: Caselaw Access Project

author: WIGGINTON, Judge. MILLS, Judge,

license: Public Domain

text:
    Randy E. STELK, Appellant, v. Cheryl B. STELK, Appellee.
    Nos. AQ-155, AR-31.
    District Court of Appeal of Florida, First District.
    Dec. 8, 1983.

      R. Lee Utley, Jr., Jacksonville, for appellant.
    Robert C. Gobelman and Jerry J. Wax-man, of Mathews, Osborne, McNatt, Gobel-man & Cobb, Jacksonville, for appellee.
    Stephen H. Donohoe, of Hooten, Dono-hoe & Arnold, Jacksonville, trial counsel for appellee for attorney’s fees only.
   WIGGINTON, Judge.

The parties in this dissolution action were married in 1974 and separated in January, 1981, one year after the birth of their only child, a son. Their affluent life-style during the marriage was accompanied by all the material trappings, but wealth did not purchase happiness, and the union dissolved in acrimony. The husband now challenges those portions of the trial court’s final judgment awarding to the wife the marital home as lump sum alimony, custody of their son, and attorney’s fees and costs. We affirm.

Questioning first the trial court’s award of the home to the wife, we note that the facts compel no easy resolution. Although at the time of marriage the husband was receiving up to $52,000 a year income and was touted as one of the top ten salesmen in the company, in late 1980 he voluntarily changed jobs and made approximately $16,-221 in 1981 as regional vice-president of an insurance company, $8,000 less than the wife, who is an airline flight attendant. Throughout the course of the marriage, the husband entered into numerous business and real estate transactions, some having been successful but short-lived, and others having failed due to transient partners. Presently the husband owns a one-fifth interest in a car lot and an adjacent commercial building, which he manages for $1,000 a year (in addition to his position with the insurance company), and also drives a 1977 300 D Mercedes Benz that he values at $24,000.

The parties purchased a home in an exclusive residential section of Jacksonville. The home is valued at approximately $185,-000 with a mortgage balance at the time of dissolution of roughly $95,000. The wife was awarded the home and what little furniture remained therein following the husband’s departure. The husband was awarded a special equity in the home in the amount of $8,733, the furniture he removed from the home and had not returned, the wife’s interest in a duplex, owned by the parties in conjunction with another couple and having an equity of $280, and the Mercedes. He complains of being shortchanged.

In reviewing the relative merits of the trial court’s action, we are constrained by our supreme court’s admonition in Conner v. Conner, 439 So.2d 887 (Fla.1983), that we must not exceed our scope of review by making our own findings of fact. In that limited capacity, we must apply the criteria set forth in section 61.-08(2), Florida Statutes (1981) to the trial court’s award in order to determine whether the court properly awarded the lump sum alimony. Although economic factors are certainly an important consideration in a trial court’s determination, they are essentially circumscribed by the court’s broad discretion to do equity and justice between the parties. Section 61.08, Florida Statutes (1981). In that regard, the supreme court in Canakaris v. Canakaris, 382 So.2d 1197 (Fla.1980) set forth the test that “[i]f reasonable men could differ as to the propriety of the action taken by the trial court, then the action is not unreasonable and there can be no finding of an abuse of discretion.” 382 So.2d at 1203.

Within those parameters we have reviewed the trial court’s award of the marital home and find it not to be an abuse of discretion. Both parties’ financial affidavits evidence a negative cash flow. However, despite the husband’s income being less than the wife’s at the time of dissolution, the record assures us, as it must have assured the trial court, that the husband’s business acumen could quickly remedy that financial disparity and probably enable him to achieve a much higher income than that of the wife. Moreover, the standard of living established during the marriage is not one the wife will be able to maintain on her present income. Finally, the marital home not being the only major asset belonging to the parties, the husband can financially comply with the award without his being catapulted into economic oblivion. Thus, while the award of the home can clearly not be reconciled with the wife’s need for support, considering her youth and her earning capacity, it can be justified as an equitable distribution of property. Id., at 1201. Although this Court may have fashioned a different remedy in the first instance, we cannot, as “reasonable men,” say that the trial court abused its discretion in this case. The award of the marital home as lump sum alimony is affirmed.

Turning now to the question of child custody, we have no compunction in holding the trial court did not abuse its discretion in awarding custody to the wife. The record amply supports the court’s decision and we affirm.

Finally, we reach the issue concerning the award of attorney’s fees and court costs. Following a separate hearing, the trial court ordered the husband to pay the wife’s attorney a fee of $7,500 and to pay court costs of $1,274.94. Although the husband would argue his financial inability to pay those amounts, we note that absent a transcript of the hearing this Court may not evaluate allegations of error in the findings of the trial judge; such findings must be presumed to be correct and will not be disturbed on appeal. Tyler v. Tyler, 427 So.2d 1027 (Fla. 2d DCA 1983); Herbert v. Herbert, 304 So.2d 465 (Fla. 4th DCA 1974). Accordingly, the award of attorney’s fees and court costs to the wife is affirmed.

THOMPSON, J., concurs.

MILLS, J., concurs in part, and dissents in part, with written opinion.

MILLS, Judge,

concurring in part and dissenting in part:

I would affirm the trial court’s award of the physical custody of the child of the parties to Cheryl.

I would reverse the trial court’s award to Cheryl of Randy’s interest in the marital home and household furniture as lump sum alimony. I would reverse the trial court’s order that Randy pay Cheryl’s attorney’s fee and costs. The trial court abused its discretion in both instances.

Randy earns $16,221 annually. Cheryl earns $24,000 annually. She also receives insurance and pension benefits.

The marital home with a value of $185,-000 has a $90,000 equity and $20,000 worth of furniture in it. Randy was awarded a special equity of $8,733 in the home. Cheryl was awarded the household furniture except for that previously removed by him.

The only other asset with monetary value was a duplex with an equity of $280, which the trial court awarded to Randy.

The trial court ordered Randy to pay Cheryl’s attorney a fee of $7,500 and to pay her costs of $1,274.94.

The trial court ordered Randy to pay $350 monthly child support, to maintain health insurance on the child, to pay all dental, medical, hospital and medicine expenses not covered by the health insurance, and to maintain a $100,000 life insurance policy with the child as sole beneficiary.

There is no justification for the award of the marital home and furniture and the award of attorney’s fees and costs to Cheryl.

Cheryl earned approximately $8,000 a year more than Randy and received additional valuable fringe benefits. Cheryl’s equity in the property awarded her exceeded that awarded Randy by $109,720.

The trial court awarded the only substantial asset of the parties to Cheryl. She failed to show a need for support or Randy’s ability to pay it. In fact, because of her age, 30, and her earning capacity, there was no need for support. Cheryl made no showing of a special equity.

If Randy has funds to live on after making the payments required by the trial court’s judgment for the child, he’ll be lucky.

There was no evidence supporting the award of attorney’s fees and costs. There was neither a showing of need nor ability to pay.

Under the facts of this case, the trial court clearly abused its discretion in its award of the home, furniture, attorney’s fees and costs.


author: MILLS, Judge.

text:
    Margaret Suritha GREEN, Appellant, v. George H. GREEN, Appellee.
    No. AR-46.
    District Court of Appeal of Florida, First District.
    Dec. 8, 1983.
    Leonard E. Ireland, Jr., of Clayton, Johnston, Quincey, Ireland, Felder & Gadd, Gainesville, for appellant.

      Bobbie Lee Eubank of Charles I. Holden, Jr., P.A., Gainesville, for appellee.
   MILLS, Judge.

In this appeal from a final judgment of dissolution of marriage, the wife contends that the trial court erred in refusing to grant her a special equity in the parties’ marital home, in refusing to award her a one-half interest in the husband’s individual retirement account (IRA), in refusing to award her the husband’s interest in the marital home as lump sum alimony, and in failing to reserve jurisdiction to consider a future award of alimony. We affirm.

The wife’s claim for a special equity is based on her assertion that certain improvements to the marital home were paid for with money that she inherited from her parents. However, the record does not reflect the amount of the inheritance that was expended, and we therefore cannot apply the formula for determining the amount of special equity set out in Landay v. Landay, 429 So.2d 1197 (Fla.1983).

There was no error in failing to award one-half interest of the husband’s IRA to the wife. Florida is not a community property state, and all marital assets need not be divided equally. The matter of property distribution is one resting in the sound discretion of the trial court. Bullard v. Bullard, 385 So.2d 1120 (Fla. 2d DCA 1980). Here, the wife was awarded a one-half interest in the marital home and a one-half interest in each of the parties’ three vehicles. Upon this record, we cannot say that the wife has been “shortchanged,” especially since that determination is an issue of fact and not one of law. Conner v. Conner, 439 So.2d 887 (Fla.1983).

Likewise, because there was no abuse of discretion, the trial court did not err in refusing to award the husband’s interest in the marital home to the wife, Canakaris v. Canakaris, 382 So.2d 1197 (Fla.1980), or in failing to reserve jurisdiction to consider a future award of alimony, Magarowicz v. Magarowicz, 429 So.2d 376 (Fla. 1st DCA 1983).

AFFIRMED.

THOMPSON and WIGGINTON, JJ., concur.


author: THOMPSON, Judge.

text:
    John L. BURTON, Appellant, v. STATE of Florida, Appellee.
    No. AR-302.
    District Court of Appeal of Florida, First District.
    Dec. 8, 1983.

      Michael Allen, Public Defender, Terry P. Lewis, Sp. Asst. Public Defender, Tallahassee, for appellant.
    Jim Smith, Atty. Gen., Raymond L. Marky, Asst. Atty. Gen., Tallahassee, for appellee.
   THOMPSON, Judge.

In this appeal from a judgment of guilt and sentence for the crime of sexual battery, Burton contends the trial judge erred in: (1) admitting into evidence certain hearsay testimony that was highly prejudicial to Burton, and (2) entering judgment on the sexual battery charge after the State had proposed, and Burton had accepted, an agreement whereby Burton would plead guilty to a lesser offense. We affirm in part and reverse in part.

Burton’s second contention is without merit, since the record does not reflect that any plea agreement was ever formally approved by the trial judge pursuant to Fla.R.Crim.P. 3.172(f). However, we agree that the admission into evidence of prejudicial hearsay requires reversal and remand for new trial.

During direct examination of the victim, the prosecutor posed the following question and elicited the following answer:

Q. Has this defendant contacted you since this event?
A. He has called me up and he has stated he is sorry for what has happened and he has also tried to bribe my mother by saying that he would pay—

Defense counsel’s prompt objection on relevancy grounds was overruled, whereupon the victim volunteered the following testimony:

WITNESS: He has said that he would pay her, you know, to forget the whole incident.

Defense counsel immediately renewed his objection, urging as additional grounds therefor the fact that anything the victim’s mother may have said to the victim was hearsay. The victim then interposed with the statement “I was right there when he called ...,” but was .interrupted by the judge and by the arguments of counsel. Although the trial judge acknowledged that the victim was “saying what her mother said he said,” he ruled that because the appellant was the declarant, and because the testimony as to what the mother said was not offered to prove the issue, the testimony was not hearsay. The witness was then permitted to elaborate on the testimony as follows:

.WITNESS: I was standing right by the phone when he called her and told her that he would pay to forget the whole incident, that he was sorry for what he has done. And he has also talked to me and told me that he was sorry for what he had done because at the time that he was mad with his wife and that’s how come he came down there and he took it out on me.

Defense counsel’s renewed objections and motions for mistrial made at the close of the evidence and at the hearing on his motion for new trial were denied. They should have been granted.

In Jones v. State, 385 So.2d 1042, 1043 (Fla. 1st DCA 1980), this court held:

An attempt by a defendant or third person to induce a witness not to testify or to testify falsely is admissible on the issue of defendant's guilt, provided it is shown that the attempt was made with the actual participation, knowledge, or authorization of the defendant_ Absent a link to the defendant, the issue of whether a witness is subject to improper influence is irrelevant and collateral to the issue of whether the defendant committed the crime for which he is charged and its admission over objection is grounds for the granting of mistrial and the denial thereof would be reversible error .... Furthermore, the admission of such evidence could only serve to create undue prejudice in the minds of the jury against the accused, (citations omitted).

Although it is questionable whether the victim’s testimony that “he” telephoned to apologize and to offer a bribe was sufficient to identify Burton as the person who attempted to induce the witness not to testify, see, e.g., Reeves v. State, 423 So.2d 1017 (Fla. 4th DCA 1982); Byer v. Florida Real Estate Commission, 380 So.2d 511 (Fla. 3d DCA 1980), we find it unnecessary to decide this issue. This is because the victim’s testimony concerning the bribe offer allegedly made by Burton to her mother was clearly inadmissible hearsay. See §§ 90.801-806, Fla.Stat. Although the trial judge stated during argument on Burton’s motion for new trial that he believed the victim had testified that she actually overheard the alleged telephone conversation between Burton and her mother, the record reveals that the judge’s recollection was incorrect. The above-quoted excerpts from the trial transcript constitute the entirety of the victim’s testimony concerning the alleged telephone calls. The fact that the witness was “right there” or was “standing right by the phone” when the mother received the call does not adequately support any inference that the victim herself heard the caller offer to exchange money for the witness’s silence.

The hearsay statement was that Burton had offered a bribe. The declarant was the victim’s mother, not Burton. Because it cannot be fairly said that the testimony was offered for any purpose other than to prove truth of the matter asserted, i.e., that Burton offered the victim’s mother a bribe, the testimony was inadmissible hearsay. The testimony was prejudicial as a matter of law. Jones; Coleman v. State, 335 So.2d 364 (Fla. 4th DCA 1976). Accordingly, this ease is reversed and remanded for new trial.

MILLS and WIGGINTON, JJ„ concur.


author: JOANOS, Judge.

text:
    Milton R. KOTHMAN, Appellant, v. STATE of Florida, Appellee.
    No. AR-428.
    District Court of Appeal of Florida, First District.
    Dec. 8, 1983.

      Charles G. Brackins of Meldon & Brac-kins, Gainesville, for appellant.
    Jim Smith, Atty. Gen. and Richard A. Patterson, Asst. Atty. Gen., Tallahassee, for appellee.
   JOANOS, Judge.

This is an appeal of a judgment and sentence for possession of less than 28 grams of cocaine and possession of more than 20 grams, but less than 100 pounds of cannabis. Appellant contends that the trial court erred in denying his motion to determine competence to stand trial and in denying his motion for mistrial after the State adduced evidence from which an inference could be drawn that appellant previously had been charged with criminal activity. We agree that the court erred in denying the motion to determine competence to stand trial.

Kothman moved for a continuance on the grounds that he was hospitalized and unable to assist in preparation of his defense or testify at trial due to certain physical disabilities. At a hearing held on the motion, Kothman’s physician, Dr. Pate, said that at that time Kothman was not fully in command of his faculties so as to be able to participate in his defense and that his ability to recall was impaired. He based his opinion on Kothman’s inability to recall certain details as to his history and his frequent blackouts due to alcoholism. Dr. Pate thought it would take a week to ten days in order to detoxify Kothman and fourteen to twenty-eight days for him to be able to function adequately. Based on Dr. Pate’s testimony, Kothman’s counsel sought a thirty day continuance in order to determine if he would be able to help with his defense. Trial was scheduled to take place in four days. The court denied the motion for continuance. Subsequently, defense counsel moved pursuant to Fla.R. Crim.P. 3.210(b)(1) for a determination of Kothman’s competence to stand trial, again basing the motion primarily on Dr. Pate’s testimony. The court asked defense counsel if it was his position that Kothman was presently insane and defense counsel replied that he did not contend Kothman was insane. The court refused to set a hearing to determine Kothman’s competency to stand trial. In doing so, the trial court erred.

Fla.R.Crim.P. 3.210 governs the procedure for raising the issue of competence to stand trial. Rule 3.210(b) provides:

If before or during the trial the court of its own motion, or upon motion of counsel for the defendant or for the State, has reasonable ground to believe that the defendant is not mentally competent to stand trial, the court shall immediately enter its order setting a time for a hearing to determine the defendant’s mental condition ... and shall order the defendant to be examined by no more than three nor fewer than two experts prior to the date of said hearing.

As appellant correctly asserts, the test for competence to stand trial is not whether a defendant is insane, but “whether a defendant has sufficient present ability to consult with and aid his attorney in the preparation of a defense with a reasonable degree of understanding,” Ferguson v. State, 417 So.2d 631 (Fla.1982). More importantly, however, in determining whether to call for a hearing pursuant to Rule 3.210(b), the test is “whether there is reasonable ground to believe the defendant may be incompetent, not whether he is incompetent,” Scott v. State, 420 So.2d 595 (Fla.1982) citing Walker v. State, 384 So.2d 730 (Fla. 4th DCA 1980) (emphasis in original); Walker v. State, 428 So.2d 321 (Fla. 1st DCA 1983); Boggs v. State, 375 So.2d 604 (Fla. 2d DCA 1979). Once the judge is presented with reasonable grounds to believe a defendant may not have sufficient present ability to consult with his attorney and aid in the preparation of his defense with a reasonable degree of understanding, as the court was in this case, he must order a hearing and examination pursuant to Rule 3.210. Id. The issue in this ease is not, as appel-lee contends, whether there was competent substantial evidence from which the judge could conclude Kothman was competent to stand trial.

Appellant also contends the trial court erred by permitting the State to adduce a statement from an evidence technician that Kothman’s fingerprint card could not be located because Texas authorities wanted identification information on Koth-man due to a failure to appear warrant issued,by that authority, thus the card had been sent to Texas. Appellant argues this reference to an outstanding warrant was as harmful if not more harmful in terms of inferring criminal propensity than reference to a specific previous crime. For purposes of retrial we note the error in the admission of such evidence, but conclude that given a proper objection and preservation of the issue for review, it would have been harmless and not reversible error under the circumstances of this case.

REVERSED and REMANDED for further proceedings in light of this opinion.

ERVIN, C.J., and TILLMAN PEARSON (Ret.), Associate Judge, concur.


author: PER CURIAM.

text:
    William HADLEY, Appellant, v. STATE of Florida, Appellee.
    No. AS-211.
    District Court of Appeal of Florida, First District.
    Dec. 8, 1983.
    P. Douglas Brinkmeyer, Asst. Public Defender, Tallahassee, for appellant.
    Jim Smith, Atty. Gen., and Wallace E. Albritton, Asst. Atty. Gen., Tallahassee, for appellee.
   PER CURIAM.

Appeal dismissed. Robinson v. State, 373 So.2d 898 (Fla.1979); Sawyer v. State, 401 So.2d 939 (Fla. 1st DCA 1981). This dismissal is without prejudice to appellant’s right to seek post-conviction relief in the trial court.

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


text:
    STATE of Florida, Appellant, v. Steven F. OSWALD, II, Kurt Edward Calabrese, Harold Allerton Hennis, Jr., and Carl Owens, Appellees.
    No. AS-325.
    District Court of Appeal of Florida, First District.
    Dec. 8, 1983.
    Jim Smith, Atty. Gen., John W. Tiede-mann, Asst. Atty. Gen., for appellant.
    Larry G. Turner and Robert S. Griscti of Law Offices of Larry G. Turner, P.A., Gainesville, for appellee Oswald.
    Joel Hirschhorn, P.A., Miami, for appel-lee Calabrese.
    J. Victor Africano and Paul E. Risner of Law Offices of J. Victor Africano, Live Oak, for appellee Hennis.
   MILLS, Judge.

The State contends the trial court erred in dismissing the first count of its information against appellees. We affirm.

The appellees were charged with the actual or constructive possession of in excess of 10,000 pounds of marijuana. They moved to dismiss the count pursuant to Rule 3.190(c)(4), F.R.Cr.P. The motions alleged that there was no showing that they ever had actual or constructive possession of the contraband.

The State filed a traverse and an amended traverse to each motion. The traverses failed to establish prima facie cases showing possession by any of the appellees; they failed to show that Oswald and Hen-nis aided or abetted Calabrese; and they failed to deny material facts.

None of the appellees was a passenger in the vehicle containing the marijuana; none had prior possession of the marijuana; none touched or unloaded the marijuana; there was no transfer of money; and the marijuana was seized on property not owned by appellees.

We affirm on authority of Ellis v. State, 346 So.2d 1044 (Fla. 1st DCA 1977).

THOMPSON and WIGGINTON, JJ., concur.


text:
    Ira M. DUSHOFF, Appellant, v. Rae T. DUSHOFF, Appellee.
    No. AS-331.
    District Court of Appeal of Florida, First District.
    Dec. 8, 1983.
    William H. Maness of Maness & Kacher-gus, Jacksonville, for appellant.
    Albert J. Datz, Jacksonville, for appellee.
   MILLS, Judge.

Ira appeals a 1983 modification of a judgment of dissolution of marriage contending the trial court erred in continuing alimony, requiring the payment of $800 monthly child support and requiring child support for an adult child, a high school dropout. We affirm.

The judgment was modified previously in 1972. Ira was required to pay Rae $750 monthly alimony. She was to support the children from the alimony. The $750 was called alimony to allow Ira a tax advantage.

The challenged modification order reduces alimony to $300 monthly and requires child support of $400 per child per month. One of the two children was over 18 years of age but was under 21 years of age and was a high school dropout.

The intent of the 1972 modification order was to provide child support of $500 per month and wife support of $250 per month. The $750 in monthly alimony was deemed alimony to give Ira a tax break. The 1972 modification, order provided that in the event Rae was no longer entitled to alimony, Ira was to pay $500 per month for support of the children. Therefore, the remaining $250 monthly was intended as wife support.

The modification order of 1983 provides for $300 per month in alimony and makes a separate provision for child support. The effect of this change is to increase Ira’s alimony obligation from $250 to $300 per month. The benefit of this increase is not much because the court removed Ira’s obligation to pay Rae’s income taxes on the alimony as required under the 1972 order.

Considering the circumstances of both parties, the trial court did not abuse its discretion in refusing to extinguish Ira’s alimony obligation. He no doubt has many financial obligations. But the fact remains that his medical practice generated over $100,000 last year. There is no indication that his practice will not generate this much in the future. Also, if Ira is a financial failure, it is due to his voluntary actions.

The 1972 modification order was intended to require $500 per month in child support. The 1983 modification amounts to a $300 increase in monthly child support payments. Given the ages of the children and the effects of inflation since 1972, this is not an unreasonable increase.

The original order requiring child support was made before the age of majority was reduced from 21 years to 18 years. Ira was therefore obligated to pay support for each child until that child reaches 21. Under Hodge v. Hodge, 409 So.2d 230 (Fla. 1st DCA 1982), this obligation is not affected by a temporary modification under which child support is not required. See also Archer v. Archer, 427 So.2d 325 (Fla. 2d DCA 1983).

Here, the trial court’s obvious intent was to provide for continuous child support by Ira. The court merely called the entire $750 monthly payment provided for in the 1972 agreement alimony at the request of the parties. When the court, in 1983, called part of that obligation child support, it was not a new order for child support but a modification and continuation of the original order.

Ira’s further argument that Aaron’s child support should have been terminated regardless of his age because he dropped out of school and is not employed is not persuasive. The trial court can require child support for each child until that child reaches 21. Here, the trial court listened to the testimony concerning Aaron and decided he still needed financial support. This is a discretionary decision.

The trial court did not abuse its discretion and we affirm the 1983 modification order.

THOMPSON and WIGGINTON, JJ., concur.


text:
    Walter H. BRYAN, Appellant, v. Sarah J. BRYAN, Appellee.
    No. AS-335.
    District Court of Appeal of Florida, First District.
    Dec. 8, 1983.

      Lacy Mahon, Jr., of Mahon, Mahon & Farley, P.A., Jacksonville, for appellant.
    Edward A. Dempsey, Jr., Jacksonville, for appellee.
   WIGGINTON, Judge.

Appellant husband, Walter Bryan, appeals a final judgment of dissolution of marriage, awarding appellee wife, Sarah Bryan, $75,000 in lump sum alimony and ordering husband to pay wife’s attorney’s fee of $5,000. We affirm.

The parties were married in January, 1976 and lived together for approximately six and one-half years before their divorce. No children were born of the marriage. At the time of the divorce, husband was seventy-one years old and wife was forty-nine. Prior to and during the marriage, the parties maintained separate estates, separate incomes and separate expenses. However, according to wife’s testimony, she made the major contribution toward the food expenses of the parties and performed all of the domestic chores during the marriage. She also held full-time employment throughout the marriage and provided some assistance in husband’s private business during her spare time. She made no claim for special equity.

The evidence shows that husband has a net worth of about $750,000 and an annual gross income in excess of $90,000. Wife has assets of $123,000 and a gross annual income of over $38,000. Therefore, both parties have sufficient incomes to meet their needs. When the parties married, wife moved from a home that she still owns, which according to her testimony is now worth approximately $15,000, into a home owned by husband-which, according to his testimony, is worth around $100,000.

Section 61.08, Florida Statutes, authorizes a trial judge to grant lump sum alimony to either party. In determining such an award, the court shall consider all relevant economic factors so as to bring about equity and justice between the parties, including the standard of living established during the marriage, and the homemaking services rendered by either party. As recognized in Canakaris v. Canakaris, 382 So.2d 1197 (Fla.1980) and Yandell v. Yandell, 39 So.2d 554 (Fla.1949), other situations besides a wife’s assistance to her husband in accumulating property may justify a lump sum award. As stressed in Canakaris, a trial judge has broad discretion in awarding lump sum alimony and no abuse will be found unless the trial judge’s decision fails to satisfy the test of reasona-, bleness. In Canakaris, the court further recognized that a trial court must view the totality of the circumstances and employ basic fairness to compensate the parties for their contributions to the marriage.

We are not persuaded by the record or the briefs that the trial judge abused his discretion in this case. The final judgment did not attempt to equalize the financial positions of the parties or divide their separate properties. The trial judge obviously believed wife’s testimony as to her contributions to the parties’ everyday needs for the duration of the marriage and he recognized the standard of living enjoyed by the parties. He merely sought to achieve equity by affording wife the opportunity to continue a standard of living as far as her living quarters were concerned, similar to that enjoyed by the parties during the marriage. Therefore, we affirm the award of $75,000 in lump sum alimony on the basis that husband is able to pay and the trial judge acted within his discretion in finding that the circumstances justify such an award.

We also affirm the award of attorney’s fees. In Canakaris, the court noted that section 61.16, Florida Statutes, provides that after considering the financial resources of both parties, a court may order one party to pay the other party’s attorney a reasonable fee. In that case, the court found that the husband had a superior financial ability to pay the attorney’s fee. The court declared:

It is not necessary that one spouse be completely unable to pay attorney’s fees in order for the trial court to require the other spouse to pay these fees.

At 1205. In so ruling, the Canakaris court impliedly overruled the decision of this Court in Patterson v. Patterson, 348 So.2d 592 (Fla. 1st DCA 1977), which declared that when the requesting party has the ability to pay his or her attorney’s fees, then to require payment by the other party is improper. In light of the Canakaris ruling, we find no abuse of discretion on the part of the trial judge in his award of attorney’s fees in this case.

AFFIRMED.

THOMPSON, J., concurs.

MILLS, J., dissents, with written opinion.

MILLS, Judge,

dissenting:

I dissent.

Walter contends the trial court abused its discretion in awarding Sarah $75,000 lump sum alimony and $5,000 attorney’s fee in a dissolution of marriage final judgment. I agree and would reverse.

At the time the marriage was dissolved, Walter was 71 years of age and Sarah was 49 years of age. The marriage existed for 6V2 years. There were no children. Walter and Sarah maintained separate estates pri- or to and during the marriage. They maintained separate incomes and separate expenses, other than sharing the cost of food and living in Walter’s home. Each was regularly employed and earned an income in excess of their needs. Neither contributed to the accumulation of assets by the other. There was no commingling of their financial affairs.

Sarah made no claim of special equity nor would the facts in this case support such an award because all of Walter’s property was acquired before the marriage and Sarah did not assist Walter in accumulating additional property during the marriage. Canakaris v. Canakaris, 382 So.2d 1197 (Fla.1980).

There is no evidence that Sarah needs or is entitled to permanent periodic alimony. The mere fact that upon dissolution of this marriage Walter has more assets than Sarah does not allow or permit the trial court to attempt equalization of their economic positions through the award of lump sum alimony. Gesford v. Gesford, 337 So.2d 1017 (Fla. 4th DCA 1976). Nor do the criteria of Section 61.08(2), Florida Statutes (1981), support the lump sum alimony award to Sarah. If the trial court had adhered to these criteria, it would have denied this claim.

Sarah did not adduce evidence of need for the payment of her attorney’s fee by Walter. To the contrary, the evidence shows clearly that she had the financial ability to pay the fee. Patterson v. Patterson, 348 So.2d 592 (Fla. 1st DCA 1977), and Dresser v. Dresser, 350 So.2d 1152 (Fla. 1st DCA 1977).

I would reverse the lump sum alimony and attorney’s fee awards because the trial court abused its discretion in both instances.


author: COBB, Judge. SHARP, Judge, COWART, Judge,

text:
    In the Interest of K.A.F., a child. Marie FAATZ, Appellant, v. STATE of Florida, DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES, Appellee.
    No. 81-1354.
    District Court of Appeal of Florida, Fifth District.
    Dec. 8, 1983.
    James R. Valerino, Orlando, for appellant.
    Douglas E. Whitney and Samuel Patterson Stafford, Orlando, for appellee.
   COBB, Judge.

This is an appeal by the mother, Marie Faatz, from an order permanently committing her child, K.A.F., to the custody of the Department of Health and Rehabilitative Services for adoption pursuant to section 39.41(l)(f), Florida Statutes (1981). The sole issue on appeal is whether the circuit court erred in severing the rights of the mother based on a finding of “abandonment” as that term is defined in section 39.01(1), Florida Statutes (1981). That statute provides:

39.01 Definitions. — When used in this chapter:
(1) “Abandoned” means a situation in which a parent who, while being able, makes no provision for the child’s support and makes no effort to communicate with the child for a period of 6 months or longer. If a parent’s efforts to support and communicate with the child during such a 6-month period are, in the opinion of the court, only marginal efforts that do not evince a settled purpose to assume all parental duties, the court may declare the child to be abandoned.

The extensive evidence adduced at the termination hearing, held in September, 1981, revealed that K.A.F. was adjudicated dependent in February, 1980, and placed in a foster home. There was evidence presented that Faatz, although consistently refusing to agree to K.A.F.’s adoption, broke numerous appointments with H.R.S., evinced “no concern for the child” and never requested to visit with her. The order entered by the trial judge specifically found:

7. Since [the child] has been in foster care her mother has failed to make any effort to communicate or visit her child on any occasion. The Court specifically finds that while being able she had no contact with the child and it has been in excess of 18 months that she has not communicated or visited. Any effort or expression of concern from the mother has been so marginal that it did not evince a settled purpose to assume all parental duties. For this reason, [the child] has been abandoned by her mother.

The appellant acknowledges that the trial court’s finding in regard to the absence of contact for more than 18 months is supported by the evidence. Faatz argues, however, that the evidence also indicated that she was not “able” to make provision for the child’s support and understand her visitation opportunities, due to her poverty and lack of education. H.R.S., on the other hand, points to contravening evidence in the record of the mother’s indifference and irresponsibility which supports the determination by the trial judge. We agree that there was ample evidence to support the trial judge’s finding of abandonment based upon the statutory definition. There also was ample evidence to support the trial judge’s finding that the order of permanent commitment was in the best interest of the child.

We note that the appellant has not raised any challenge to the constitutionality of section 39.01(1), either at trial or on appeal; therefore, we decline to determine that issue in this case. See Hegeman-Harris Co., Inc. v. All State Pipe Supply Co., Inc., 400 So.2d 1245 (Fla. 5th DCA), review dismissed, 411 So.2d 380 (1981); Allied General Contractors v. Superior Asphalt Co., 397 So.2d 727 (Fla. 5th DCA 1981).

Accordingly, the order of permanent commitment entered below is

AFFIRMED.

ORFINGER, C.J., and DAUKSCH and FRANK D. UPCHURCH, Jr., JJ., concur.

SHARP and COWART, JJ., dissent with opinions.

SHARP, Judge,

dissenting.

I dissent in this case because I do not think the record sustains the trial court’s conclusion that Faatz abandoned her child as defined in section 39.01(1), Florida Statutes (1981). Whether abandonment is proved by statute or by other means, the proofs offered by the state must be by clear and convincing evidence. Hinkle v. Lindsey, 424 So.2d 983 (Fla. 5th DCA 1983).

HRS proved that Faatz failed to cooperate with its social workers in working out a plan to regain custody of her child. She failed or was unable to meet their requirements for employment, attending parenting classes, and obtaining mental health counseling. She did not keep all of the appointments the HRS social workers made for her to come to their office and discuss her failings. Although Faatz was not entitled to have the child returned to her custody under the circumstances, I do not think Faatz abandoned her child, given her poor economic circumstances and low mentality.

HRS had custody of the child after she was declared to be dependent, when she was approximately five months old. During the time the six month abandonment time period was running, Faatz did not know where her year old baby was living. She asked a social worker where the baby was being kept, when she was first put in a foster home. But the worker told Faatz she could not be told. She testified she would have visited her, if permitted. She did not know that HRS could have arranged visitation at its office, had she asked. Faatz testified the social workers did not tell her about her visitation rights. She did attend all of the court hearings concerning the child, in December of 1980 and September 1981.

Under these circumstances, I do not think HRS showed by clear and convincing evidence that Faatz was “able to communicate,” section 39.01(1), with her child, and the finding of abandonment should not therefore be based on her failure to do so. Nor was it shown that Faatz was “able” to support the child at any time, section 39.-01(1), so abandonment should not be based on that aspect of the definition. Clearly it is in the best interest of this child to be adopted. But if that is the real reason for this decision, we ought to acknowledge it.

COWART, Judge,

dissenting:

In Hinkle v. Lindsey, 424 So.2d 983 (Fla. 5th DCA 1983), this court recognized that the adoption of a child by another acts to permanently and totally terminate the parental rights of the replaced natural parent and that a child cannot be adopted and the rights of the natural parent cannot be terminated without the express consent of the natural parent unless the natural parent has abandoned his or her parental rights. Following general law Hinkle held that such abandonment must be shown by clear and convincing evidence of

conduct which manifests a settled purpose to permanently forego all parental rights and the shirking of the responsibilities cast by law and nature so as to relinquish all parental claims to the child. Id. 985.

This case similarly involves a question of whether there is clear and convincing evidence that Marie Theresa Faatz abandoned her parental rights in and to her child, Kimberly, so as to authorize a court of law to permanently terminate her parental rights and, pursuant to section 39.41(l)(f)l.-a, Florida Statutes (1981), to permanently commit the child to a state or other agency for subsequent adoption.

This case was regularly assigned for consideration to a three judge panel of this district court of appeal. After consideration of the case two of panel members were in full accord and agreement with the language quoted from Hinkle above which describes an abandonment of parental rights as relating not only to the neglect of parental duties but also as requiring an intentional and voluntary, total and permanent relinquishment of all parental rights. The panel majority noted that the definition of abandonment in section 39.01(1), Florida Statutes (1981), related only to neglect of parental duties, and, agreed that while neglect of parental duties as described in section 39.01(1), Florida Statutes, was a sufficient basis to adjudicate dependency and to deprive natural parents of custody of children under chapter 39, Florida Statutes, the panel majority were of the opinion, consistent with Hinkle, that “abandonment” of parental rights such as to authorize an adjudication permanently terminating them under section 39.41(l)(f)l.a, Florida Statutes (1981), required the same clear and convincing evidence of a voluntary “settled purpose [intent] to permanently forego [relinquish] all parental rights” as was held in Hinkle to be required for an uneonsented adoption based on abandonment under section 63.072(1), Florida Statutes (1981). This in effect was a holding that, constitutionally, parental rights cannot be forfeited by the state because a natural parent did not perform such parental duties as the state might set as minimal standards. The panel majority noted that intent to permanently relinquish all parental rights could be effected expressly or established by direct proof or by circumstantial evidence as to words and conduct of the natural parent and that in the latter case constitutional due process required the evidence to be clear and convincing. The panel majority then, as in Hinkle, reviewed the evidence in this case and found it insufficient to meet the constitutional standard and concurred in a decision to reverse the judgment terminating appellant’s parental rights and wrote a proposed opinion. One member of the original panel disagreed with the panel majority view as to the construction of the statute and as to the sufficiency of the evidence and dissented and sought an en banc consideration of this cause and a favorable en banc majority. This was obtained on the basis that the proposed panel majority decision was in potential conflict with Hinkle.

Schreiber v. Chase Federal Savings and Loan Association, 422 So.2d 911 (Fla. 3d DCA 1982), holds that maintenance of uniformity in the court’s decisions (Fla.App. Rule 9.331(a)) means the same as decisional conflict as defined by the supreme court in Nielsen v. City of Sarasota, 117 So.2d 731 (Fla.1960), and Kyle v. Kyle, 139 So.2d 885 (Fla.1962). Nielsen describes such conflict as

(1) the announcement of a rule of law which conflicts with a rule previously announced by the court; or (2) the application of a rule of law to produce a different result in a case which involves substantially the same controlling facts as a prior case disposed of by the court.
Nielsen, 117 So.2d at 734.

Kyle holds that decisional conflict

must be such that if the latter decision and the earlier decision were rendered by the same court, the former would have the affect of overruling the latter.
Kyle, 139 So.2d at 887.

The statutes involved in this case, and their construction, were not involved in Hinkle. The proposed panel majority opinion adopted and applied the same standard of proof (clear and convincing evidence) to the same definitional rule of law (abandonment of parental rights requires a voluntary relinquishment, express or implied by conduct) utilized in Hinkle. Of course, the sufficiency of the evidence in Hinkle- has no bearing on the sufficiency of the evidence in this case; nevertheless, the panel majority in this case did find the evidence insufficient exactly as the panel in Hinkle found the evidence insufficient in Hinkle. Therefore, in no way did the proposed panel majority opinion in this case conflict with Hinkle. The substance of the proposed panel dissent was that the principles applied in Hinkle should not be applied in this case because of the restrictive definition of abandonment contained in section 39.01(1), Florida Statutes.

It is important to note that the majority en banc opinion does not cite or rely on Hinkle. Query: How is it that the panel’s proposed reversal in this case would have constituted a decisional conflict with Hin-kle and yet Hinkle not be even relevant or germane to the en banc affirmance? The en banc majority should either express direct conflict with Schreiber or follow that decision and having invoked en banc jurisdiction in this case on the assertion that a reversal in this case would conflict with Hinkle the en banc majority should at least attempt to demonstrate that conflict in the face of this challenge.

Section 4(a), Art. V, of the Constitution of the State of Florida provides that in district courts of appeal “three judges shall consider each case and the concurrence of two shall be necessary to a decision.” That constitutional provision has absolutely no meaning if a majority of the judges on a district court of appeal, disagreeing with the view of some proposed panel majority decision, can, by merely claiming an en banc hearing is necessary to maintain uniformity in the court’s decisions, act under Florida Appellate Rule 9.331 to wrestle jurisdiction of a particular ease away from the panel to which it was assigned and decide it according to a different view of the law or facts and do this without the proposed panel majority opinion ever being published or the claimed conflict issue ever being briefed, argued or conferenced. This occurred the first time on this court in Torrence v. State, 440 So.2d 392 (Fla. 5th DCA 1983), and each instance needs to be noted for whatever value it may have and for consideration by anyone concerned with the constitutional problem involved in the present en bane rule as it is being used. As here and in Torrence en banc jurisdiction can be decisive in a particular case. En banc jurisdiction is important beyond the resolution of the particular case and its effect on the body of law. Its employment can constitute an end run around the constitution which is so effective as to be subject to no defense or review. I dissent from its use in this case. While an en banc rule, properly worded and employed, is desirable the legality of the present rule is questionable because Florida Constitution makes no provision for en banc jurisdiction in the district courts of appeal. Accordingly, en banc jurisdiction should be cautiously exercised. A litigant who has presented his appeal to a district court of appeal panel in accordance with the constitution, the appellate rules and constitutional due process and has won it fair and square, should not be deprived of the result by an en banc majority which merely disagrees with the rationale or result in the given case and under circumstances where the litigant cannot obtain review of the jurisdictional issue involved in the claimed conflict. The en banc rule should be amended or construed to require that en banc decisions affirmatively demonstrate decisional conflict subject to review by the supreme court.

      . Section 39.41(l)(f)la, Florida Statutes (1981), provides:
      (1) When any child is adjudicated by a court to be dependent, the court having jurisdiction of the child shall have the power, by order, to:
      (f)l. Permanently commit the child to the department or a licensed child-placing agency willing to receive the child for subsequent adoption if the court finds that it is manifestly in the best interests of the child to do so, and:
      (a) If the court finds that the parent has abandoned, abused or neglected the child; ...

      . The public policy of Florida favors a permanent family life for children rather than merely an indefinite protective custody. See § 63.022, Fla.Stat. (Supp.1982).

      . Several courts, however, including this one, previously have applied the "abandonment" test set out in section 39.01(1). See In Interest of R.V.F., Jr., 437 So.2d 713 (Fla. 2d DCA 1983); In Interest of C.M.H., 413 So.2d 418 (Fla. 1st DCA 1982); In Interest of J.F., 384 So.2d 713 (Fla. 3d DCA 1980); P.S. v. State, 384 So.2d 656 (Fla. 5th DCA 1980).

      . In law a forfeiture is the involuntary loss or deprivation of a right in consequence of the neglect, breach or other nonperformance of some duty, obligation or condition that the right is held subject to, or conditional or dependent upon. By contrast in legal theory abandonment is correctly defined only as a voluntary relinquishment of a right by the person having it with the intention of permanently terminating it but without vesting it in any other person. The very essence and nature of the legal concept of abandonment as a lawful means of terminating a right is its voluntary and intentional nature and it is this character that permits many rights to be voluntarily renounced, relinquished and abandoned that cannot lawfully be forfeited. Citizenship is an example. Under our form of government, with rights secured by constitutional guarantees, the rights of citizenship are secure from forfeiture. By failing to meet duties and obligations, such as obedience to laws, citizens can forfeit aspects of citizenship, such as personal freedom and even life, but the right of citizenship itself cannot be forfeited for neglect of corollary duties. Certainly the rights that arise from the God-given relationship of parent and child are among those rights guaranteed citizens by the federal and state constitutions to be inalienable by government. Parental duties may be enforced by law and, for neglect of parental duties of care, in the best interests of the child parents may be deprived of actual custody, but parental rights should not be permanently forfeited for neglect of parental duties in the absence of their voluntary and intentional relinquishment. The real substance of the en banc majority opinion is that in Florida, constitutionally, all parental rights can be permanently forfeited if, in the opinion of one judge, a parent’s efforts during any six month period “do not evince a settled purpose to assume all parental duties." (§ 39.01(1), Fla.Stat.) I dare say that a large segment of the public and bench and bar does not realize that to be true and therefore it should be announced loud and clear. On the other hand if parental rights can only be voluntarily and intentionally relinquished by consent to adoption by others or by true abandonment and cannot be constitutionally forfeited then the application of section 39.-41(l)(f)l.a., Fla.Stat., read in combination with section 39.01(1), Fla.Stat., inherently presents the legal question of whether the state can ignore the substance of the legal concept of abandonment and redefine the word “abandonment” so as to eliminate its voluntary and intentional nature as a lawful relinquishment of a right and define it only in terms of a right lost as the result of a neglect or failure to meet some corollary parental duty, which is, in truth, a forfeiture. Once it is established, as by this case, that the state can constitutionally define parental duties, the nonperformance of which constitutes a legal "abandonment” of all parental rights, there is no longer any constitutional limitation on that device and, this case establishes that the "sole issue” is whether there is evidence to support a finding that the natural parent neglected to perform the minimal parental duties defined by statute. As Judge Sharp points out, in this case the state would not tell the mother the location of the foster home where her baby was located and the mother’s "efforts to support and communicate with the child during a six month period” were considered to be "only marginal” by HRS and the trial judge. As a lexical definition of the meaning of “abandonment” as that word connotes the legal consequence of a voluntary and intentional relinquishment, the definition in section 39.-01(1), Fla.Stat., is false in that it takes away the legal meaning of the word "abandonment.” Euphemistically misdescribing the true meaning of words to accomplish some social or political purpose is not uncommon in politics but to call a forfeiture an "abandonment” does not make it so in substance or in law and the judiciary should face up to the truth and not apply the lawful consequence of an affirmative volitional act intended to accomplish a relinquishment to conduct which does not in truth describe a voluntarily intended relinquishment of parental rights. The use of these statutes to change the meaning of a word and to cause it to denote its opposite meaning to accomplish government policy is an excellent example of The B Vocabulary in George Orwell’s book 1984.

      . Assuming en banc jurisdiction in this case because a reversal would be in "potential conflict" with Hinkle is like involuntarily committing a teetotaler to an alcoholic treatment center because he is a "potential alcoholic.”


text:
    Thomas Allen COLVIN, Appellant, v. Margaret HOMAN, Appellee.
    No. 82-2812.
    District Court of Appeal of Florida, Second District.
    Dec. 9, 1983.
    Charles J. Pisieczko, St. Petersburg, for appellant.
    Chad W. Browne of Macfarlane, Ferguson, Allison & Kelly, Tampa, for appellee.
   PER CURIAM.

There is sufficient evidence in the record to sustain the granting of a constructive trust against appellant’s property. However, the court erred in assessing attorney’s fees against the appellant. This is not one of those rare cases in which attorney’s fees may be awarded in the absence of a contract or applicable statute and where no fund has been created or brought into court. See Glusman v. Lieberman, 285 So.2d 29 (Fla. 4th DCA 1973). We note that our sister court in Hiestand v. Geier, 396 So.2d 744 (Fla. 3d DCA 1981), petition for review denied, 407 So.2d 1103 (Fla.1981), reached a similar conclusion when it reversed an award of attorney's fees in connection with the imposition of a resulting trust.

The award of attorney’s fees is reversed. In all other respects, the judgment is affirmed.

OTT, C.J., and BOARDMAN and GRIMES, JJ., concur.


author: SCHEB, Judge.

text:
    ALBERTSONS, INC., Tampa Coca-Cola Bottling Company, St. Petersburg Coca-Cola Bottling Company, and Florida Coca-Cola Bottling Company, Appellants, v. LaTonya R. JOHNSON, Appellee.
    No. 83-199.
    District Court of Appeal of Florida, Second District.
    Dec. 9, 1983.
    Terry A. Smiljanich and Stephen C. Chumbris of Greene, Mann, Rowe, Stanton, Mastry & Burton, St. Petersburg, for appellants.
    J.L. “Skip” Miller and Richard C. Stone-man, St. Petersburg, for appellee.
   SCHEB, Judge.

A jury awarded the plaintiff, LaTonya R. Johnson, a substantial verdict in her suit against the defendants. On this appeal we address the defendants’ contention that the trial court erred in denying their motion to interview the jurors after the verdict was rendered.

The plaintiff suffered injuries as a result of drinking Coca-Cola from a bottle which contained particles of glass. She sued the defendants (manufacturer, bottler and distributor) on theories of implied warranty and strict liability. The jury awarded her $86,000 in damages. The defendants argue three points on this appeal; however, the only one that merits discussion is the point concerning their request to interview the jurors.

After the jury was discharged, the foreman engaged in a casual social conversation with an attorney friend. During the conversation the foreman mentioned that the jury had arrived at its verdict in a manner the attorney perceived to be a quotient method and had then added a forty percent attorney’s fee to make the plaintiff whole. At the time neither apparently knew of the other’s relationship to the participants in the case now before us. As it turned out, the foreman’s friend was a law partner of counsel for the defendants.

Defendants’ attorney subsequently learned of this conversation and, pursuant to Florida Rule of Civil Procedure 1.431(g), filed a motion to interview the foreman and another juror to verify the information. At the hearing on defendants’ motion, counsel related to the court how the information about a possible quotient verdict reached him. After hearing arguments the trial judge stated:

I am not inclined to allow the interview or interrogatory of a verdict to a jury after a trial unless I feel that the verdict did not simply speak the truth as far as damages were concerned .... As I say, the verdict in this case is certainly far, far less than what was requested.

At that point defendants’ counsel offered to furnish affidavits to establish the truth of the information he had relayed if the court felt it necessary. The trial judge declined the offer stating, “I am not ruling on that basis .... Since you are here as an officer of the Court, I will accept that with the same exact strength as I would an affidavit on that effect.”

Florida Rule of Civil Procedure 1.431(g) provides:

If a party believes that grounds for legal challenge to a verdict exists, he may move for an order permitting an interview of a juror or jurors to determine whether the verdict is subject to the challenge. The motion shall be served within ten days after rendition of the verdict unless good cause is shown for the failure to make the motion within that time. The motion shall state the name and address of each juror to be interviewed and the grounds for challenge that the party believes may exist. After notice and hearing, the trial judge shall enter an order denying the motion or permitting the interview. If the interview is permitted, the court may prescribe the place, manner, conditions, and scope of the interview.

Before a motion to interview a juror will be granted, there must be a reasonable basis to believe that there are grounds for a legal challenge to the verdict. Murray v. State, 356 So.2d 71 (Fla. 1st DCA 1978); National Indemnity Co. v. Andrews, 354 So.2d 454 (Fla. 2d DCA), cert. denied, 359 So.2d 1210 (Fla.1978).

Initially, we fault the defendants for failing to set forth their grounds more specifically in their motion and for failing to produce affidavits to support their allegations. We note, however, that the trial judge appeared to be satisfied with the representations by counsel. Nevertheless, the trial judge incorrectly viewed the issue as whether the verdict spoke the truth concerning damages. Rather, it is the method used, and not the amount of the award, that is the evil of a quotient verdict.

A verdict becomes an impermissible quotient verdict where each juror states the amount of damages he or she considers proper, the total is then computed and the sum divided by the number of jurors to determine the amount of the verdict, and the jurors have agreed in advance to be bound by the results of such a procedure. Cromarty v. Ford Motor Co., 341 So.2d 507 (Fla.1976).

The information alleged by defendants, while not conclusively establishing a quotient verdict, did at least raise a basis for an inquiry. Therefore, the court erred in denying the motion.

We hasten to distinguish this case from our opinion in National Indemnity, which was of some concern to the trial court. There, we recognized the authority of a trial court to order jurors interviewed in a proper case. However, we found that the allegations in the motion seeking an interview were insufficient because they were bottomed on mere conclusory statements based on speculation and surmise that, if interrogated, the jurors might have something to say that would be material to whether or not the court should award a new trial. Most important, there was no suggestion in the record of any misconduct or irregularity on the part of any juror. Here, on the other hand, the record suggested a quotient verdict which is a proper subject of inquiry. Velsor v. Allstate Insurance Co., 329 So.2d 391 (Fla. 2d DCA), cert. dismissed, 336 So.2d 1179 (Fla.1976).

We have examined each of the other contentions raised by the defendants and find them to be without merit. Thus, we remand with directions to the court to permit an interview in accordance with the procedures outlined in Rule 1.431(g). If the interviews reveal that a quotient verdict was entered, defendants will be entitled to a new trial on the issue of damages. If not, the verdict shall stand.

OTT, C.J., and BOARDMAN, J., concur.


author: BOARDMAN, Judge.

text:
    Ernest HILER, Appellant, v. Margaret HILER, Appellee.
    No. 83-235.
    District Court of Appeal of Florida, Second District.
    Dec. 9, 1983.
    Ernest S. Marshall, Bradenton, for appellant.
    Howard B. Bischoff, Bradenton, for ap-pellee.
   BOARDMAN, Judge.

In this dissolution of marriage proceeding, the husband contends that the trial court erred in awarding his interest in the jointly owned marital home and furnishings to the wife as lump sum alimony. We agree and reverse.

The parties were married for thirty-five years and have one remaining minor child. The significant asset of the marriage is the marital residence, which has an estimated value of-$50,000, with an outstanding mortgage of $13,000 payable at $153.07 per month.

The wife is fifty-seven years old and is employed at a local department store, earning take-home pay of $372 a month. The husband is sixty-four years old, has chronic leukemia, and presently earns $1556 a month.

In addition to the lump sum award, the trial court awarded the wife permanent alimony of $500 a month to be reduced to $75 per week upon the husband’s retirement. Custody of the child was granted to the husband.

A study of the parties’ financial affidavits filed in the trial court reveals that real and personal property worth $61,500 was accumulated during the marriage, including the home. The trial judge apparently awarded $54,500 of this amount to the wife, leaving the husband with the remaining property estimated at $7000. Although we recognize that a trial court in its distribution of the assets need not equalize the financial positions of the parties, Canakaris v. Canakaris, 382 So.2d 1197 (Fla.1980), we cannot overlook or approve such an apparent disparity.

In Canakaris, our supreme court clarified the principle that lump sum alimony may be awarded as support, as protection for vested property interests, or to ensure an equitable distribution of the marital property. Canakaris at 1201.. However, based on the record before us, we see no justification for the lump sum award under any of these concepts.

First, the wife does not claim a special equity in the marital residence, therefore we are not concerned with that type of lump sum alimony. Second, in view of the award of permanent alimony, we rule out the necessity of awarding the husband’s interest in the home as a support-type lump sum alimony. The wife’s needs over and above the alimony awarded could be adequately and fairly satisfied by giving her exclusive possession of the marital home. Interestingly enough, the husband has suggested that she be given exclusive possession even though he was awarded custody of the minor daughter. Finally, the lump sum award cannot be sustained as an equitable distribution of the marital property inasmuch as the home is the only asset of significant value. This is not a ease where the parties have achieved a lucrative income and numerous assets over the long duration of the marriage. See Klein v. Klein, 413 So.2d 1297 (Fla. 4th DCA 1982); Cowan v. Cowan, 389 So.2d 1187 (Fla. 5th DCA 1980), petition for review denied, 397 So.2d 777 (Fla.1981). On the contrary, the record shows the parties lived a very modest lifestyle. Therefore, we do not think that under the facts of this case the trial judge was justified in taking a $25,000 asset from the husband and transferring it to the wife.

Our sister court in the similar case of Bullard v. Bullard, 413 So.2d 1238 (Fla. 3d DCA 1982), held, and we agree, that

where ... the marital home is the only substantial asset accumulated during the marriage, there are no special equities or is no necessity for lump sum alimony for support and the home is jointly owned, there is no necessity for application of the remedy of lump sum alimony in order to make a just and equitable distribution of the home. That result is achieved by Section 689.15, Florida Statutes (1979) which provides that “... [sic] in cases of estates by the entirety, the tenants, upon dissolution of marriage shall become tenants in common.” See: Gorman v. Gorman, 400 So.2d 75 (Fla. 5th DCA 1981); Holbrook v. Holbrook, 383 So.2d 981 (Fla. 4th DCA 1980); Hoch v. Hoch, 380 So.2d 499 (Fla. 2d DCA 1980); Simpson v. Simpson, 372 So.2d 526 (Fla. 4th DCA 1979).

Id. at 1239.

Under these circumstances, the trial court abused its discretion in awarding the husband’s one-half interest in the marital home as lump sum alimony. Bullard v. Bullard. Accordingly, we reverse that part of the final judgment and direct the trial court on remand to grant the wife exclusive possession of the home until she dies, remarries, abandons the property, or until the parties mutually agree to dispose of the property with approval of the court.

The trial court shall hold a further hearing(s) to determine, under the equities of this case, which party shall be responsible for the monthly mortgage payments, property taxes, insurance, and other expenses necessary to the maintenance of the former marital residence. In light of our holding concerning the marital home, the trial court may deem it proper to conduct an adversary hearing to reconsider the other provisions of the final judgment.

Finally, the trial court is directed to retain jurisdiction of the cause for further proceedings in the event of a material change in circumstances by either party.

We have considered the remaining points raised here by the husband, and each lacks merit.

AFFIRMED in part, REVERSED in part, and REMANDED for further proceedings consistent with this opinion.

OTT, C.J., and LEHAN, J., concur.


text:
    Dale R. McALISTER, Appellant, v. Martha Moneada SALAS, Appellee.
    No. 83-243.
    District Court of Appeal of Florida, Second District.
    Dec. 9, 1983.
    Thomas H. Rydberg, Temple Terrace, for appellant.
    Donna Sumner Cox of Dayton, Sumner, Luckie & McKnight, Dade City, for appel-lee.
   BOARDMAN, Judge.

Appellant, the plaintiff (buyer) in the trial court, filed a two-count complaint against appellee, the defendant (seller). Count 1 sought damages for breach of a written contract for the sale of real estate. Count 2 sought specific performance of that contract. After a nonjury trial, the trial court denied the buyer relief ruling, inter alia, “that the buyer is not entitled to the relief requested and shall take nothing by this action.” Upon thorough review of the entire record, including the testimony, deposition of the seller, and briefs, and after hearing oral argument, we disagree with the trial court’s finding and reverse.

The contract was for the sale of unimproved real estate and, as amended by agreement of the parties, was admitted into evidence in the buyer’s case without objection. The seller was notified by her real estate agent that the closing was to be at Chelsea Title and Guaranty Company in New Port Richey. She was present and, according to the record, was ready to close the transaction in accordance with the contract as amended. The buyer was not present for the obvious reason that he had no knowledge that a closing was scheduled. The seller then became dissatisfied with the contract and advised the closing representative of the title company that there would be no closing.

The seller argues that a contract had not been formed between the parties for two reasons: first, because a dispute as to which party was to pay the cost of preparing and recording the mortgage and, second, because the buyer had failed to furnish proof of income, which the seller contends he was contractually obligated to do. As to the first reason, the mortgage was to be prepared by Chelsea Title and Guarantee Company for which there could be no fee charged and the cost of recording the mortgage was seven dollars. Furthermore, the buyer agreed to be responsible for the payment of these costs, although the record is not clear whether the seller had notice of this fact. For these reasons, we do not believe the costs of preparing and recording the mortgage can reasonably be considered a material term of the contract. Regarding proof of the buyer’s income, the written contract did not require that the buyer furnish such information. Notwithstanding that the buyer had no obligation under the contract to the seller prior to the execution of the mortgage, the buyer did provide copies of his statement of earnings and taxes withheld (Form W-2) as a showing of good faith.

We have considered the seller’s reasons for repudiating the contract and find each to be without substance. In essence, the seller considered that the buyer was contractually obligated to furnish the financial information, which indeed he was not. We hold that there was a valid and binding contract entered into between the parties, the terms and conditions of which were definite and certain in all their essential elements, and the fact that the transaction was not consummated pursuant thereto was solely due to the fault of the seller.

In conclusion, the buyer proved by substantial, competent evidence both of his causes of action. We remand the cause to the trial judge to determine, after proper hearing, if necessary, which remedy is appropriate.

REVERSED and REMANDED to the trial court for further proceedings consistent with this opinion.

OTT, C.J., and SCHEB, J., concur.


author: RYDER, Judge.

text:
    Charles Ishmael SMITH, Appellant, v. STATE of Florida, Appellee.
    No. 83-772.
    District Court of Appeal of Florida, Second District.
    Dec. 9, 1983.
   RYDER, Judge.

Charles I. Smith appeals the denial, after a nonevidentiary hearing, of his post-conviction motion to vacate an order of probation. We reverse and remand.

The following facts led to Smith’s filing his motion pursuant to Florida Rule of Criminal Procedure 3.850: After being found guilty by the trial court of escape, Smith appeared with privately retained counsel before the lower court for sentencing on April 10, 1981. Apparently, pursuant to an agreement between the parties, the court originally was to impose a $350.00 fine, $150.00 in court costs, payable within six months, and withhold adjudication of guilt. However, defense counsel requested that the total amount be treated as “court costs.”

After a short discussion between the court, the state and Smith’s lawyer, the court withheld adjudication of guilt and treated the total sum as “court costs,” and ordered the amount to be paid within six months. Probation was not imposed. At the end of the hearing, the court informed Smith that he had “a right to appeal the sentence.” A “Memo of Sentence of the Court” noted that the $500.00 was being treated as court costs, adjudication was being withheld, and “no other sent, imposed.”

On October 28, 1981, the trial court ordered Smith to appear on November 23, 1981 and show cause why he had not paid the “court costs.” Subsequently, Smith was arrested and appeared at a hearing without counsel before a different judge on April 21, 1982. The court stated that Smith was arrested “not for not showing up, but for not paying the fine.” (emphasis added). When Smith stated he became unemployed when he was injured on a job shortly after he was released, the court asked Smith if he had taken into consideration that he was “sentenced to a fine?” Towards the end of the hearing, the state attorney suggested that Smith be placed on probation and ordered to pay the $500.00 as a condition of probation. However, the state attorney noted the court would “have to modify the sentence.” Thereafter, the trial court placed Smith on probation for one year with a condition that he pay the $500.00 in installments during that year. From the tone one receives from reading the record, one readily perceives that the state and the court were attempting to work with and accommodate Smith. Ah, but what happened thereafter?

Smith filed the motion giving rise to this appeal and alleged that: (1) the imposition of probation on April 21, 1982, after he had already been ordered on April 10, 1981 to pay $500.00 in “court costs,” violated the prohibition against double jeopardy; (2) the imposition of that probation violated the 60-day modification time limit imposed in Florida Rule of Criminal Procedure 3.800(b); and (3) that he was not represented by counsel at the April 21 proceeding, which is violative of his constitutional rights.

On April 8, 1983, Smith appeared with counsel at a hearing on the motion. However, during that short hearing, the trial court addressed only the first allegation and denied it, adding that Smith was “not sentenced.” The transcript of the proceeding reflects that the court did not provide Smith with an opportunity to present evidence or adequately argue the merits of the first allegation. Furthermore, the court did not even mention the other two allegations or give Smith an opportunity to present evidence as to these assertions or argue their merits. At the end of the hearing, the court denied the entire motion.

Subsequently, appellate counsel filed a timely notice of appeal for Smith and directed that the transcripts of the original April 10, 1981 hearing; the April 23, 1982 sentencing hearing; and the April 8, 1983 post-conviction hearing be included in the record on appeal. The remainder of the trial court’s records with respect to the original case and the post-conviction proceeding were also included in the record on appeal. However, the lower court did not attach any portions of the record as to its denial.

We address Smith's third allegation first because in doing so we are able to more easily dispose of his remaining assertions. As an initial observation, we hold the third allegation to be legally sufficient on its face. Consequently, if the allegation regarding lack of counsel at the April 21, 1982 proceeding is true, Smith would be entitled to post-conviction relief. Williams v. State, 427 So.2d 768, 769 (Fla. 2d DCA 1983); see also Mempa v. Rhay, 389 U.S. 128, 88 S.Ct. 254, 19 L.Ed.2d 336 (1967). However, the court below failed to conduct an evidentiary hearing or attach portions of the record which would conclusively refute the third allegation. In any event, the complete, certified transcript of the April 21 hearing has been provided by appellate counsel, and an examination of that transcript suggests that Smith was not represented by counsel and did not waive counsel at that hearing.

Accordingly/we reverse the denial of Smith’s motion, remand the case to the trial court, and direct the court to conduct an evidentiary hearing and receive argument of counsel as to Smith’s lack of representation contention. See Meeks v. State, 382 So.2d 673, 674 (Fla.1980). At the conclusion of the hearing, the court should rule on the merits of the third allegation and make “findings of fact and conclusions of law” in accordance with Florida Rule of Criminal Procedure 3.850(e). Thereafter, any aggrieved party must appeal the new ruling as it would in a direct appeal case in order to obtain further review. See Halpin v. State, 428 So.2d 703 (Fla. 2d DCA 1983); Fla.R.App.P. 9.140(g) (in particular see Committee Note 1977 Revision).

The trial court is also directed to address the first and second allegations during the aforementioned proceeding. First, we also determine that these allegations are legally sufficient on their face. Second, if these assertions are true, Smith might be entitled to post-conviction relief on these grounds as well. See Troupe v. Rowe, 283 So.2d 857 (Fla.1973); Fla.R.Crim.P. 3.800(b). Furthermore, an eviden-tiary hearing as to these allegations has not been conducted, and the record provided us does not conclusively show that Smith is not entitled to any relief sought as to those allegations. Meeks, supra. After the hearing, the court should rule on these assertions in accordance with the provisions of rule 3.850, and any aggrieved party must appeal the ruling in order to obtain further review. Halpin, supra.

REVERSED and REMANDED.

OTT, C.J., and LEHAN, J., concur.

      . We need not decide the effect of the April 10, 1981 proceeding in this appeal.


author: LEHAN, Judge.

text:
    INTERNATIONAL INSURANCE COMPANY, Appellant, v. Jeff MASON and South Carolina Insurance Company, Appellees.
    No. 83-1175.
    District Court of Appeal of Florida, Second District.
    Dec. 9, 1983.
    Ronald A. Cyril of Nelson, Hesse, Cyril, Smith, Widman & Herb, Sarasota, for appellant.
    Daniel A. Carlton of Dickinson, O’Rior-den, Gibbons, Quale, Shields & Carlton, P.A., Sarasota, for appellees.
   LEHAN, Judge.

The trial court granted summary judgment to plaintiff-appellee, Jeff Mason, against one of the defendants, appellant International Insurance Company. We reverse.

This action arose out of an accident that occurred while plaintiff was putting his father’s 26-foot motorboat into the water. The boat was kept on davits on the father’s property. The boat was suspended from the davits by cables. On the day of the accident, plaintiff lowered the boat to the water from the davits. While the boat was still supported by the davits, one of the cables snapped, causing severe injuries to plaintiff’s head and face.

Plaintiff sued his father and two insurers of his father’s property. One of the defendants, appellee South Carolina Insurance Company, insured the father’s boat with a policy providing liability coverage for injuries arising out of the ownership, maintenance, and use of the boat. Appellant insured the father with a homeowner’s insurance policy. The homeowner’s policy excluded from coverage injuries arising out of the ownership, maintenance, use, loading or unloading of certain described watercraft, the description of which would include the boat involved in this accident. However, the homeowner’s policy also provided that the watercraft exclusion “does not apply while the watercraft is stored....”

Naturally a major issue in this case was whether the accident occurred while the boat was “stored,” which would mean that the watercraft exclusion in the homeowner’s policy would not apply, i.e., there would be homeowner’s coverage, or whether the accident happened during the use of the boat, which would mean that the exclusion in the homeowner’s policy would apply and that the coverage of the boat liability policy would be applicable. The trial court’s summary judgment against appellant implicitly (but not expressly) found that the accident occurred while the boat was stored. We disagree.

We have been unable to find any Florida case which defines the term “stored” or “storage” in this context. Other jurisdictions which have considered the issue seem to have decided that “stored” or “storage” denotes a certain degree of permanency. For example, in Smith v. O’Brien, 46 Misc. 325, 94 N.Y.S. 673 (1905), the owner of an automobile kept his car at a commercial garage which was in the business of buying, selling, storing, and repairing automobiles. The garage kept the car for about seven months, during which time the vehicle’s owner periodically removed the car from the garage to use it. The New York court decided that the car was not stored, stating that the vehicle had been “continuously or occasionally upon the road at its owner’s pleasure.” Id. at 675. See also Williams v. Grier, 196 Ga. 327, 26 S.E.2d 698 (1943) (truck periodically parked on the street for one and one-half days is not stored); State v. Breidenbach, 5 Ohio App.2d 52, 213 N.E.2d 745 (1964) (“storage of automobiles indicates a certain degree of permanency ... ‘parking’ connotes transcience”).

In the present action, the element of permanency is lacking. The record shows that the boat was periodically removed from the davits and operated on the water and, in fact, that it had been so used on the day before the accident. The boat’s attachment to the davits was not permanent or long-term.

Because the boat was not stored at the time of the accident, the watercraft exclusion to the homeowner’s policy would apply and would relieve appellant from liability.

REVERSED AND REMANDED FOR PROCEEDINGS CONSISTENT HEREWITH.

OTT, C.J., and SCHEB, J., concur.


author: HOBSON, Judge.

text:
    STATE of Florida, Appellant, v. Lewis Clifton WEAVER, Appellee.
    No. 83-1221.
    District Court of Appeal of Florida, Second District.
    Dec. 9, 1983.

      Jim Smith, Atty. Gen., Tallahassee, and Katherine V. Blanco, Asst. Atty. Gen., Tampa, for appellant.
    Nicholas G. Schommer and Steve D. Kackley, Sebring, for appellee.
   HOBSON, Judge.

The state appeals the lower court’s order granting defendant’s motion to suppress certain evidence seized under a search warrant. The issue is whether the search under the warrant was authorized. We hold that the portion of the private home rented by the defendant was within the scope of the premises described in the search warrant and therefore reverse and remand.

The defendant was charged by information with possession of a controlled substance in violation of section 893.13(l)(e), Florida Statutes (1981). The defendant filed a motion to suppress evidence, alleging that the search of the defendant’s property was conducted without a search warrant and that the search did not meet any of the exceptions to the- warrant requirement recognized under Florida law. On April 13, 1983, a hearing was held on the defendant’s motion to suppress.

At the hearing on the motion to suppress, testimony revealed the following facts: The defendant rented a room at the home of Gerald Cooper, located at 4334 Snapper Drive, Sebring, Florida. On November 17, 1982, the Highlands County Sheriff’s Department executed a search warrant at the Cooper home based upon the fact that three “drug buys” by undercover officers had occurred at the Cooper residence. The warrant did not direct the officers to search a particular person, but merely identified 4334 Snapper Drive as the premises to be searched. The defendant, who was present at the time the warrant was executed, advised the police officers conducting the search that he was renting a room in the Cooper home and would not consent to a search of his room. It was stipulated at the hearing that the officers had no knowledge or reason to know that the defendant was living in the Cooper home until they arrived at the residence.

The defendant testified that he began renting the room only two weeks prior to the time the search warrant was executed. He described the room as a converted garage with sliding glass doors in front and two entrances. The defendant admitted that the occupants of the house would not have to use a key to get into his room and that some of the Coopers’ personal belongings remained in the room during the rental period. After the police officers informed the defendant that they were going to search his room, he advised them of the presence of marijuana.

The lower court, in granting defendant’s motion to suppress evidence, reasoned that the rented room was separate and apart from the house itself and that the police officers were made aware of the fact that the room was under the control of a second party. Thus, the lower court concluded that a search of the defendant’s room required a separate search warrant. We cannot agree.

The law is well settled that a search warrant must conform strictly to the statutory requirements and must particularly describe the place to be searched. Fance v. State, 207 So.2d 331 (Fla. 3d DCA 1968). Where a building contains multi-dwelling units, and the state knows or reasonably should have known that a particular description can be had, it is the duty of the state to give a particular description and a general description of the building will not suffice. State v. Gordillo, 245 So.2d 898 (Fla. 3d DCA 1971).

The foregoing legal principle, stated another way, has been recognized by federal and state courts in other jurisdictions. That is, where the police officers do not know nor have reason to know, prior to the execution of the search warrant, that the building involved is multi-unit in character, the warrant and resultant search and seizure have been held to be constitutionally permissible. See, e.g., United States v. Davis, 557 F.2d 1239 (8th Cir.), cert. denied 434 U.S. 971, 98 S.Ct. 523, 54 L.Ed.2d 461 (1977); United States v. Santore, 290 F.2d 51 (2d Cir.1960), cert. denied 365 U.S. 834, 81 S.Ct. 749, 5 L.Ed.2d 744 (1961); 11 A.L.R.3d 1330, 1344 (1969). In United States v. Santore, the agent or affiant had no knowledge and was not warned that others lived in the apartment until after the officers had entered the apartment and had shown a copy of the warrant to the defendant. The court upheld the warrant and search of the entire apartment, finding it was too late, consistent with the success of the agent’s mission, to require the agent to withdraw and obtain a new warrant.

In the instant case, the officers possessed a search warrant directing them to conduct a search of a single-family home. At the time the warrant was sought, the officers did not know nor did they have any reason to know that the residence contained a separate rental unit.

We are aware that the researched case law, including the above cited cases, is factually distinguishable from the case at bar. Nevertheless, in applying the same legal principles to the particular facts of the instant case, we conclude that the search of the defendant’s rented room and seizures pursuant thereto were in all respects legal.

Accordingly, we reverse the order granting the defendant’s motion to suppress evidence and remand to the trial court with instructions to initiate proceedings consistent herewith.

REVERSED and REMANDED.

OTT, C.J., and LEHAN, J., concur.


text:
    Horace WASHINGTON, Appellant, v. STATE of Florida, Appellee.
    No. 83-2023.
    District Court of Appeal of Florida, Second District.
    Dec. 9, 1983.
   PER CURIAM.

Appellant seeks review of the trial court’s order summarily denying his motion for postconviction relief under Florida Rule of Criminal Procedure 3.850. Appellant’s singular point in his motion alleges that he received an illegal enhanced sentence because the trial court used several prior uncounseled convictions. If this allegation is true, appellant would be entitled to post-conviction relief. Johnson v. State, 362 So.2d 465 (Fla. 2d DCA 1978). The trial court, however, failed to conduct an eviden-tiary hearing or to attach portions of the record which conclusively refute appellant’s allegation.

Accordingly, we reverse the trial court’s denial of appellant’s motion and remand the ease to the trial court. On remand, the trial court may either again summarily deny the motion, and attach to its order those portions of the record which conclusively show that appellant is not entitled to relief, or hold an evidentiary hearing and then rule on the allegation raised in appellant’s motion. See Florida Rule of Criminal Procedure 3.850. See also Halpin v. State, 428 So.2d 703 (Fla. 2d DCA 1983); Jones v. State, 421 So.2d 55 (Fla. 1st DCA 1982); Van Bever v. State, 405 So.2d 474 (Fla. 5th DCA 1981). To obtain further review in this cause, an aggrieved party must appeal the new ruling of the trial court.

REVERSED and REMANDED.

OTT, C.J., and BOARDMAN and DAN-AHY, JJ., concur.


text:
    James J. LANNEN, Appellant, v. PHILLIPS ASSOCIATES BUILDERS, INC. and Aetna Insurance Co., Appellees.
    No. AR-263.
    District Court of Appeal of Florida, First District.
    Dec. 9, 1983.
    Thomas F. Pepe, Coral Gables, for appellant.
    Susan J. Silverman, Miami, for appellees.
   PER CURIAM.

The deputy’s order is REVERSED and the case REMANDED for consideration in light of Trindade v. Abbey Road Beef ‘N Booze, 443 So.2d 1007 (Fla. 1st DCA 1983).

ROBERT P. SMITH, Jr., BOOTH and WIGGINTON, JJ., concur.


text:
    Nancy S. ROBINSON, Appellant, v. Richard W. ROBINSON, Appellee.
    No. 82-2827.
    District Court of Appeal of Florida, Second District.
    Dec. 14, 1983.
    John R. Asbell of Asbell, Hains, Doyle, Lewallen & Pickworth, Naples, for appellant.
    John F. Stanley of Vega, Brown, Nichols, Stanley & Martin, P.A., Naples, for appel-lee.
   RYDER, Judge.

This is the second appeal by Nancy S. Robinson concerning the distribution of property in a dissolution of marriage proceeding. In the prior appeal, this court reversed awards of permanent periodic and lump sum alimony, and remanded the case “for the trial judge to make a more equitable award.” Robinson v. Robinson, 418 So.2d 465 (Fla. 2d DCA 1982).

The trial court initially awarded to Mrs. Robinson permanent alimony of $50.00 per week and lump sum alimony of $25,000.00. On remand, the trial court struck the award of $50.00 per week, ordered Mr. Robinson to pay periodic alimony of $10,-000.00 per year for as long as he receives payments on notes from Gulfshore Insurance, Inc. and David J. Shanard, and otherwise “ratified and confirmed” the final judgment.

As was stated in this court's earlier opinion, we recognize the broad discretion of a trial judge to apportion assets and provide necessary support in a dissolution of marriage proceeding. Canakaris v. Canakaris, 382 So.2d 1197 (Fla.1980). An appellate court is to review the trial court’s exercise of its discretion using a test of reasonableness:

If reasonable men could differ as to the propriety of the action taken by the trial court, then the action is not unreasonable and there can be no finding of an abuse of discretion_ The trial court’s discretionary power is subject only to the test of reasonableness, but that test requires a determination of whether there is logic and justification for the result.

Id. at 1203; Weeks v. Weeks, 416 So.2d 811 (Fla. 4th DCA 1982); Peak v. Peak, 411 So.2d 325, 327 (Fla. 5th DCA 1982); Price v. Price, 389 So.2d 666 (Fla. 3d DCA 1980), petition for review denied, 397 So.2d 778 (Fla.1981).

In our view, the amended award to Mrs. Robinson is still clearly inadequate in light of her needs and the assets and income of Mr. Robinson. See Robinson, supra. Her stated needs exceed $3,000.00 per month; he receives approximately $7,000.00 per month in principal and interest from the notes of Gulfshore Insurance, Inc. and David J. Shanard (from the sale of his business and properties). The amended award does not do equity between the parties.

We hold that Mrs. Robinson is entitled to 25% of the monthly proceeds received by Mr. Robinson from the notes previously mentioned. This is in lieu of the $10,000.00 per year periodic alimony awarded by the trial court. Additionally, Mrs. Robinson is awarded permanent periodic alimony of $50.00 per week. The trial court is directed to issue an order incorporating the awards so ordered.

On remand, the trial court is to arrange a method of payment of the parties’ respective interests in the proceeds of the notes requiring a financial institution to hold the notes, receive payments on the notes, and disburse the proceeds to the parties. This will serve to protect the parties from the improper disposition or negotiation of the notes, and will assure the prompt and accurate disbursement of the proceeds without placing an undue burden on the circuit court. Any administrative costs incurred by utilizing this procedure is to be paid from the gross proceeds of the notes, with each party to suffer a reduction in the amount of their net proceeds in proportion to their share of the proceeds. Furthermore, the trial court is to retain jurisdiction in order to entertain the motions of either party (or the financial institution) concerning this award.

REVERSED and REMANDED for proceedings consistent with this opinion.

GRIMES, A.C.J., and EVANS, VERNON W., Jr., Associate Judge, concur.