author: FAULKNER, Justice.

text:
    SHRINERS HOSPITALS FOR CRIPPLED CHILDREN, a non-profit charitable corporation v. Gerald Leon ROBBINS, et al.
    82-567.
    Supreme Court of Alabama.
    April 27, 1984.

      Irvin J. Langford of Howell, Johnston & Langford, Mobile, for appellant.
    Lawrence B. Voit and Barry L. Thompson of Silver & Voit, Mobile, for appellees.
   FAULKNER, Justice.

William Charles Koster established a trust to provide for the maintenance and support of himself and his wife. After both beneficiaries died, the assets of the trust were to be transferred to the Shriners Hospitals For Crippled Children (Shriners). Koster predeceased his wife, who died on May 26, 1979. On May 1, 1981, Shriners brought this action to compel an accounting and a transfer of the assets and seeking damages for conversion, use and occupation of trust lands, and for delay in turning over the assets of the trust. Named as defendants were the co-trustees of the trust, Gerald Leon Robbins and E.W. McKean, and their attorney, Irving Silver. Shriners also sought a judicial determination as to the propriety of claims for fees made by the defendants against the trust estate. The trial court required the defendants to furnish Shriners with an accounting and to effectuate the transfer of the assets, but ruled in favor of the defendants in all other respects. Shriners appealed. We affirm in part, reverse in part, and remand.

Because a major issue in the case concerns the reasonableness of the trustees’ delay in turning over the assets and in furnishing an accounting, it is necessary to examine the communications between the parties and other events relating to administration of the trust between the time Mrs. Koster died and the time suit was filed.

On March 10, 1980, over nine months after Mrs. Koster died, Silver sent a letter on behalf of the trustees advising Shriners of her death. The letter suggested that a “face-to-face” meeting be arranged so the “unfinished business of the estate could be coordinated and the transition effectuated.” The letter also requested that Shri-ners “establish” that it was a tax exempt charitable organization. (The trust instrument provided that if Shriners Hospitals was not “an organization described in Section 170(c) and Section 2055(a) of the Internal Revenue Code” the assets were to be transferred to another charity or other charities.) Shriners replied with a letter requesting a list of the trust’s assets and their values in order to enable it to determine how to proceed.

Silver wrote Shriners again on May 12th. He stated that the estate was “ready to be transferred” and he requested that Shri-ners advise him as to when it would be convenient to meet. In response, Shriners wrote Silver a letter stating:

“Thank you for your letter of May 12, 1980, wherein you referred to establishing a meeting with Shriners Hospitals and the current Trustees in order to effectuate the change of assets.
“As a rule, all transfer[s] of assets are made by the filing of Accountings and Inventories with our office, the approval of those accounts and then the mailing of the assets to our National office here in Tampa. Unless there is an unusual situation which will require our presence, we would like to have the assets forwarded to us here in Tampa.
“I have also written Mr. E.W. McKean, Jr., a copy of that letter is attached, requesting information on the assets, etc. To date, I have not had a response to my letter and I will be writing him another letter again requesting this information.
“We look forward to hearing from you in regard to the closing of this Trust in due course.”

In response Silver sent Shriners a letter stating that the basis for his request of a meeting between the parties was that the estate contained “several parcels of low income rental property” which would require local management. He suggested to Shriners that it contact one Morris Burger, a former Potentate, who could advise it as to the particulars of the situation.

The next communication between the parties was during the following August. At that time Shriners renewed its request for an accounting. Silver replied that the trustees expected to turn over all the assets on December 1, 1980. Prior to that time, he continued, the trustees would forward a “full detailed accounting.”

The trustees did not transfer the assets or furnish an accounting during December as promised. In mid-January, out of a concern for the estate, Shriners retained an attorney in Mobile, where the trustees reside and where the assets were located, in order to investigate the delay. In response to the attorney’s inquiry, Silver sent another letter, indicating that an accounting was “in the works” and that it should be submitted by February 20th. Silver indicated that the delay had been occasioned by “other business and staff problems.”

The accounting was being performed by trustee McKean and his employees. McKe-an is a certified public accountant. During his compilation of the data necessary for completing the accounting, McKean discovered that his co-trustee, Robbins, had drawn eight checks on the trust’s account totaling $16,054.27. The checking account had been set up in such a way that it was not necessary to have both trustees’ signatures in order to write checks. Six checks totaling $4,649.45 were for cattle purchased in Robbins’s name and placed on his land. One check for $1,675.87 was for back taxes on land owned by Robbins. The remaining $9,728.95 was paid to a creditor of the Robbins Fence Company, a company owned by Robbins’s family. McKean notified Silver of the misappropriations. In a letter dated March 26, 1981, Silver notified Robbins that an examination' of the trust records revealed that Robbins had “embarked upon a systematic means of utilizing trust assets for [his] own personal use.” Silver reminded Robbins that Shri-ners owned the assets of the trust “as of the moment of Mrs. Roster’s death” and that the appropriations began over a year after her demise.

On March 28 McKean sent Shriners a partial accounting covering the period ending April 30, 1980. His letter indicated that a “detailed listing of assets and a more current accounting will be mailed to you shortly.” The period covered by the accounting ended before Robbins began the misappropriations. Shortly after the letter was sent, Silver called the attorney for Shriners and requested a meeting, which took place on April 7. At that meeting Silver and McKean advised Shriners of the disbursements, and soon thereafter Shri-ners filed suit.

The suit was filed on May 1, 1981. On the following July 15, Robbins repaid the misappropriated funds with interest. Although the money had been repaid, the parties were unable to settle the case, because they were unable to agree on the payment of fees charged by Silver and McKean. On November 6, Silver and McKean again met with the attorney for Shriners. Silver claimed $3,718.00 for services rendered to the trust. McKean claimed $5,058.77. The attorney for Shri-ners testified at trial that at the meeting Silver and McKean refused to turn over any of the assets of the estate unless Shri-ners agreed to allow them to charge the estate for their services. Silver and McKe-an claimed that Shriners refused to accept the assets until a court had ruled on payment of the fees.

The trial court, sitting without a jury, ruled in favor of the defendants. It allowed McKean to charge the trust $11,-064.58 for services rendered, including remuneration for time spent preparing for the trial and time spent in court and at depositions. The court approved Silver’s bill for $20,951.55. It ordered the trust to pay two-thirds of the bill and it gave Silver a judgment against Robbins for the remaining third. The court also awarded Robbins and McKean a joint trustees’ fee of $1,376.00. It ordered that the half of the fee allowable to Robbins be paid to Silver.

I.

Shriners argues that the trial court erred in refusing to grant it any relief under its counts for conversion, use and occupation of the trust lands, and for delay in turning over the trust assets.

There is no dispute that Shriners was beneficially entitled to the trust property on Mrs. Roster’s death. The trustees were under a duty to wind up the trust after Mrs. Koster died and to transfer the trust assets to the plaintiff. The length of time which the law will allow the trustees to transfer the assets of a trust after it terminates depends on the circumstances, viz., the size and nature of the estate, the type of assets involved, the difficulty encountered in gathering together the assets, the difficulty in determining who to transfer the property to, etc. See the Restatement (Second) of Trusts % 344 (1959). The trustees are also under a duty to furnish the beneficiary complete and accurate information as to the nature and amount of the trust property. Restatement (Second) of Trusts § 173 (1959).

Shriners argues that the period of delay in winding up the trust and in transferring the assets was unreasonable. The trustees did not inform Shriners of Mrs. Roster’s death for over nine months. Despite Shri-ners’ repeated requests for information as to the size of the estate and the nature of the assets, a full accounting was not submitted until September 3, 1982, over three years after Shriners’ right to possession accrued. The trustees did not even submit a partial accounting for a year after it was first requested.

The assets in the estate were valued at about $110,400.00. The trust contained three parcels of real estate, valued at about $28,000.00, and six mortgages being collected by a bank, valued at about $24,-000.00. Shriners argued that nothing was required to transfer the assets except to assign the notes, execute deeds to the real estate, send checks for the amounts on deposit and, send a notice to the Internal Revenue Service that the tax refund should be sent to Shriners. Instead, Shriners says, the defendants procrastinated and Robbins defalcated with part of the funds, thereby creating the need for litigation and causing the parties to incur unnecessary expenses.

In defense of their delay in turning over the trust assets and in failing to provide an accounting, the trustees argue that: (1) They at all times recognized Shriners’ rights to the property; (2) Shriners failed to furnish them with evidence that it was a tax exempt organization; (3) They could not simply mail the documents to Shriners in the way Shriners suggested, because it was necessary for them to “safeguard” and “manage” the assets of the trust; and (4) Shriners failed to present a person to whom they could turn over the assets.

The issue of whether the trustees’ delay in turning over the trust assets amounted to conversion was a disputed question of fact which was resolved by the trial court. Although the time taken by the trustees to wind up the trust appears to us to have been disproportionate to the difficulty of the task, the reasonableness of the trustees’ actions was a disputed issue of fact which was resolved by the trier of fact and, therefore, is governed by the ore tenus rule. Since we do not substitute our opinion as to the reasonableness of the delay for the findings of "the trier of fact, we feel constrained to affirm the judgment as it relates to the conversion counts.

II.

Shriners also questions the award of attorney’s fees, accountant’s fees and trustees’ fees. Shriners disputes both the award and the reasonableness of the amount of the fees.

Upon settlement of a trust estate the court may award fees or other compensation to be paid from the trust assets to trustees and attorneys representing trustees for services rendered to the estate. Section 19-3-6, Code of Alabama. The trust instrument in question also authorized the hiring of attorneys “and other agents” to aid the trustees in administering the trust and to pay the agents for their services from the assets of the estate.

The fee award was, however, clearly erroneous in this case. The bulk of the fees was not “for services rendered to the estate” or for aiding the trustees “in the administration of” the estate. Most of the fees in question constituted litigation expenses, which in this instance were not chargeable against the estate. When litigation expenses are necessary for the proper administration, preservation, and execution of the trust, the attorney’s fees incurred by the trustees are chargeable against the estate. See Annot. 9 A.L.R.2d 1140; 90 C.J.S. Trusts § 284 (1955). Attorney’s fees are not allowable as a charge against the estate, however, where the litigation is caused by the mismanagement or maladministration of the trustees, nor are they chargeable against the estate where the services are rendered for the sole protection of the trustees. Grace v. Solomon, 241 Ala. 452, 455, 3 So.2d 3, 5 (1941). See also Dunbar v. Birmingham Trust National Bank, 286 Ala. 168, 238 So.2d 336 (1970).

The evidence is undisputed that nearly two years elapsed between Mrs. Roster’s death and the filing of the complaint. During that period none of the assets were transferred to the plaintiff. Although the trustees claim that they were ready and willing at all times to transfer the assets to the plaintiff, it is undisputed that at the time the complaint was filed nearly a year had passed since the plaintiff had requested an accounting and that a full accounting was not provided until after suit was filed and the trustees were ordered to furnish plaintiff with a full accounting. When a beneficiary must resort to litigation to compel a trustee to make a final settlement, the beneficiary should not be forced to bear the trustee’s litigation expenses. Murphy v. Merchants National Bank of Mobile, 240 Ala. 688, 702, 200 So. 894, 905 (1941).

It is also undisputed that the plaintiff filed suit immediately upon discovering that Robbins had misappropriated funds from the estate. Although the defendants, in arguments made on appeal, refer to the appropriations as “investments” and “loans” and argue that “there was no evidence of bad faith or neglect by the trustees,” we opine that Attorney Silver’s earlier assessment of the situation comported more closely to the truth of the matter. In a letter to Robbins he stated, “you have embarked upon a systematic means of utilizing trust assets for your own personal use; in violation of [the] law.”

Although Robbins was primarily responsible for causing the litigation, McKean was not entirely free from fault in that regard. In addition to his role in failing to promptly provide the plaintiff with an accounting, his failure to exercise due care in the administration of the estate enabled Robbins to misappropriate the funds. In Caldwell v. Graham, 115 Md. 122, 80 A. 839 (1911), Trustee C agreed with his co-trustee, W, that C was to have sole responsibility for administration of the trust’s real estate and W was to have sole responsibility for administration of the trust’s personalty. W embezzled funds from the trust. In an action against C for negligence in failing to prevent W’s devas-tavit the court ruled that, once having undertaken the duty to act as trustee, C could not limit his obligation or divest himself of his fiduciary duty by assigning part of his fiduciary duty to W. Although as a general rule a trustee is responsible only for his own acts or omissions, he is liable for a breach of trust on the part of a co-trustee which he could have prevented through the exercise of reasonable care.

In response to plaintiff’s argument that McKean was also responsible for the misappropriation, the defendants argued that a trustee is not liable for the actions of his co-trustee unless he knowingly permits or acquiesces in the breach of trust. In support of that position the defendants relied on Hinson v. Williamson, 74 Ala. 180 (1883). Although this Court in Hinson did state the general rule that a trustee is not responsible for the acts of his co-trustee, the Court went on in that same opinion to state that “trustees are liable each for the other, if it is mutually- agreed between them that one shall have the exclusive management of one part of the trust property and a loss results which could have been avoided if both trustees had attended to all the assets.” Hinson at 195.

McKean testified that “it was understood” between himself, Robbins, and Koster that Robbins would be responsible for the checking account and that McKean would be responsible for the accounting. Nothing in the trust instrument itself authorized such an arrangement, however. As Attorney Silver pointed out in a letter to the trustees prior to opening the account, “I think that prudence ... would mandate that a checking account be set up exclusively in the name of the Trust and that dual signatures be required on each check.” We agree. If Silver’s advice had been followed, McKean would have been in a position to prevent the misappropriations.

We are aware that the trust instrument provided that the trustees should not be held liable for .mistakes or errors in judgment. While that provision in the trust instrument might prevent the plaintiff from receiving a judgment against McKean based on Robbins’s misappropriations, it does not prevent McKean from sharing in the responsibility for bringing about the litigation.

We affirm in part, reverse in part, and remand. The trust should not be charged with any of the defendants’ litigation expenses. Only the reasonable and necessary fees incurred in the administration of the estate should have been charged against it.

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.

TORBERT, C.J., and ALMON, EMBRY and ADAMS, JJ., concur.


source: Caselaw Access Project

author: ESDALE, Clerk.

license: Public Domain

text:
    OPINION OF THE CLERK, Supreme Court of Alabama.
    Opinion No. 44.
    Supreme Court of Alabama.
    May 15, 1984.
   RULE 7, ALABAMA RULES OF JUDICIAL ADMINISTRATION — FILING FEES — COUNTERCLAIM FOR MODIFICATION OF CHILD SUPPORT

ESDALE, Clerk.

Honorable Paul S. Conger, Jr., Circuit Judge, Sixth Judicial Circuit, Tuscaloosa, Alabama, has made the following request to the Clerk of the Supreme Court for an opinion pursuant to § 12-2-19(d), Ala.Code (1975):

“I’m writing you to request an opinion regarding whether or not a new filing fee is required when a defendant to a domestic complaint for contempt files his answer and counterclaim for modification of child support when the matter will be heard by the court as one proceeding and requiring a single hearing.”

It is my opinion that no new filing fee is required when the complaint for contempt and counterclaim for modification are treated as one proceeding. Opinion of the Clerk, No. 37, 403 So.2d 891 (1981), held that an original filing for cost purposes is the filing of a case. It further held that when a party filed a petition for modification and a citation for contempt in the same pleading, only one docket fee should be charged, since the adjudication of the issues required only one proceeding. In the present situation, the plaintiffs motion for contempt and the defendant’s counterclaim will be heard as one proceeding. Therefore, only one docket fee should be charged.


author: HUBERT TAYLOR, Judge.

text:
    Steve TOLBERT v. STATE.
    1 Div. 723.
    Court of Criminal Appeals of Alabama.
    April 10, 1984.
    Rehearing Denied May 8, 1984.

      Stephen K. Orso, Mobile, for appellant.
    Charles A. Graddick, Atty. Gen., and Patricia E. Guthrie, Asst. Atty. Gen., for ap-pellee.
   HUBERT TAYLOR, Judge.

The appellant in this case, Steve Tolbert, was convicted by a Mobile County jury of theft of property in the first degree and sentenced to twenty years’ imprisonment.

Since a knowledge of the facts is relevant to some of the issues raised, we include the following summary of the State’s evidence:

On August 6, 1981, Salesman Thomas Gebhart of Meyer Ford in Foley, Alabama, showed a Cougar automobile to a man who called himself “Berryhill” and a woman whom he identified as his wife. At trial, Gebhart identified this man as the appellant.

The three of them took a test drive in the car. Tolbert parked the vehicle in a lot near several stores, claiming he wanted to show the car to his brother who worked in one of the stores.

Because of the angle of the parked ear, Gebhart was unable to see where Tolbert went, but he was gone ten or twelve minutes and he took the key to the Cougar with him.

After the three returned to the car lot, a written proposal was entered into for the purchase of the vehicle. Gebhart asked Tolbert for some identification, but Tolbert was unable to produce any. He gave the salesman an address in Loxley. Tolbert and his companion left the lot driving an old model Ford station wagon.

The next day it was discovered the Cougar had been stolen. There was evidence that someone had attempted to drive a vehicle around a chain suspended across the drive-out gate to the car lot and had gotten stuck in a ditch as a result. A quantity of broken glass was found near the scene and police authorities took samples of that glass.

When police officer John Davis of the Foley Police Department went to the Lox-ley address given by Tolbert, he found a Ford station wagon on the premises with a broken window. A sample of that window glass was taken. The inhabitants of the residence at the Loxley address were named Berryhill, and although the evidence was in conflict, it appears they were in some way related to appellant Tolbert.

On August 15, 1981, in Ventura County, California, Police Officer Kenneth Dobbe observed a man later identified as Tolbert pushing a stick through a broken rear window of a parked Cougar automobile. Tol-bert told Dobbe that he had locked his keys in the car with the engine running and was trying to operate the power window to get inside.

A check was run on the car tag and it was discovered that the car tag was not registered to the vehicle and that the vehicle had been stolen from Meyer Ford in Foley, Alabama.

Tolbert and another individual, who was on the scene with the appellant, were taken into custody.

Tolbert was interviewed by police on three occasions that day. Before the first interrogation at about 9:25, appellant was read his constitutional rights from a Miranda card. A tape recording was made of that exchange.

Appellant indicated that he understood his rights. He waived them and said he wanted to talk to the police about the charges against him.

During his first interview, Tolbert told the police he got the Cougar from a man named Berryhill, who was a boyfriend of his sister’s in Texas. During the next interview, which took place about 12:35 that same day, Tolbert said the car had been sold to him by an employee of the Ford agency. Appellant’s last statement was made at approximately 2:15 p.m. At that time, he told the police that the Cougar had been given to him so that he could leave the State for his own protection.

Officer Dobbe testified that the appellant seemed fully coherent when he made his statements, all of which were recorded on tape cassettes.

I

Appellant first contends that the trial court committed reversible error by denying his motions to suppress the conflicting statements he made to California police officers. We find no merit in this contention.

The first time Tolbert was approached by a police officer, he was standing next to a car, pushing a stick through a broken rear window. Although Tolbert was asked several questions at that time, he was not suspected of committing any particular crime, nor was he in custody; thus, it was unnecessary to inform him of his constitutional rights. Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

The testimony of Police Officer Kenneth Dobbe indicates that Tolbert was fully informed o'f his rights and that he waived those rights before his first custodial interrogation. Dobbe also indicated that Tol-bert was in no way pressured or threatened in order to induce these statements; he was not misled in any way and he spoke of his own free will.

Approximately three hours elapsed between the first interrogation of Tolbert and the second. The last statement appellant made was at his own request and took place approximately ninety minutes after his second interrogation. In the interim between the statements, Tolbert was placed in a holding cell.

Appellant himself concedes in brief that he was read his Miranda rights before his first interrogation at the police station. There is certainly no requirement that a suspect be informed of his constitutional rights before each separate interrogation. Love v. State, 372 So.2d 414 (Ala.Cr.App.1979); Davis v. State, 401 So.2d 187 (Ala.Cr.App.), writ denied, Ex parte Davis, 401 So.2d 190 (Ala.1981).

The determination of whether or not Miranda warnings must be repeated is one that should be made on a case-by-case basis. Hollander v. State, 418 So.2d 970 (Ala.Cr.App.1982).

In the case at bar, Tolbert was reminded before his second and third statements that he had already been informed of his Miranda rights. He was asked if he remembered those rights, and he said that he did and that he wanted to talk to Officer Dobbe. Under these circumstances, we find that there was no necessity that appellant be re-informed of his constitutional rights and no error was committed by the trial judge when he denied the motions to suppress the statements.

II

Appellant’s assertion that the trial court erred to reversal in overruling his objection to the introduction of State’s Exhibit 2 is meritless.

The exhibit in question was a carbon copy of a “proposal to buy” that was drawn up after Tolbert test drove the vehicle that was the subject of the theft. The carbon included the signatures of both parties.

Appellant claims that introduction of this instrument violated the best evidence rule since, he asserts, there was no accounting made for the absence of the original.

The rule in such cases has been stated as follows:

“If the conduct of the parties to a bilateral writing shows that all of the parties intended that each of two or more duplicates of the writing should be the equal of each other, then each of such duplicates is an original. Consequently, any of such duplicates may be introduced without producing or accounting for the absence of the others. This is true even though one of the duplicate originals is a top-sheet ... and the others are carbon copy duplicates_” C. Gamble, McElroy’s Alabama Evidence § 225.01(2) (3d ed. 1977).

Witness Thomas Gebhart of Meyer Ford identified State’s Exhibit 2 as the order that he prepared for Tolbert to take to the bank for a loan. He stated the exhibit was a “duplicate original” and he affirmed that that document was the only one of the orders he had in his possession when he turned it over to law enforcement officers in the case.

We find the evidence adduced at trial was sufficient to establish that State’s Exhibit 2 was indeed a duplicate original, and thus, there was no necessity to account for the absence of the original. See also Richardson v. State, 437 So.2d 645 (Ala.Cr.App.1983).

Ill

Appellant claims that the trial court erred in overruling an objection made to testimony given by Police Officer Parnell of the Foley Police Department. That testimony concerned a toxicologist’s report that allegedly compared a sample of broken glass found near Meyer Ford and a sample taken from the broken window of a vehicle found on the Berryhill property. No toxicologist was ever called to testify about the alleged report at trial, nor was a copy of a toxicologist’s report concerning the glass ever introduced into evidence.

The pertinent portion of the transcript reads as follows:

“Q. And you said that you found glass out there on County Road 20?
“A. I did.
“Q. What did you do with that glass?
“A. I put it in a white envelope and sealed it up and wrote the date on it that I found it and where. Then, I put it in the evidence room.
“Q. Do you know now whether or not that glass came from that new vehicle?
“MR. ORSO: And we object. Unless he knows from his own personal knowledge, he couldn’t testify to that.
“BY MR. NORTON:
“Q. That’s what I am asking you.
“A. I know, according to the toxicologist’s report.
“MR. ORSO: And I object. I don’t know what’s forthcoming with a question like that.
“THE COURT: Overrule the objection.
“BY MR. NORTON:
“Q. Do you know whether or not it came from a new car or not?
“A. Not according to the toxicologist’s report.
“MR. ORSO: And I object on the same grounds.
“THE COURT: Yes.
“MR. NORTON: No further questions on that issue. Give me just a minute.
“MR. ORSO: And I object and move to strike that last response.
“THE COURT: Disregard that response, ladies and gentlemen.
“MR. ORSO: We’d like for you to instruct the jury and I would like a further instruction as to why it should be disregarded because there is no way for me to cross-examine him.
“THE COURT: Ladies and gentlemen of the jury, you are to disregard that because it is unreliable and he cannot cross-examine on it.”

We agree with the State that the trial court’s initial action of overruling appellant’s objection was correct since Officer Parnell’s testimony that “I know, according to the toxicologist’s report” contained no improper evidence. We also find that the court’s later instruction to the jury to disregard the officer’s later comment concerning the contents of the report was sufficient to cure the error introduced by the response. See Ala. Digest, Criminal Law, Key No. 1169.5(1), and cases cited therein.

IV

The fourth issue appellant Tolbert raises on appeal is whether the evidence presented at trial was sufficient to sustain his conviction.

It is true that a large portion of the evidence was circumstantial. However, as we have said before, “Circumstantial evidence is in no wise considered inferior evidence and will sustain a conviction as stoutly as will direct evidence, provided it points to the guilt of the accused.” Davis v. State, 418 So.2d 959 (Ala.Cr.App.1982).

The evidence at trial showed that Tolbert went to Meyer Auto Sales and test drove the car shortly before it was stolen. At that time, Tolbert gave the salesman a false name and he refused to produce any identification when asked to do so. Only a few days later appellant was found in possession of the stolen vehicle in California. After his arrest, Tolbert gave the police three confusing and contradictory explanations about his connection with the car.

In the case of Bozeman v. State, 401 So.2d 167, 170 (Ala.Cr.App.), writ denied, 401 So.2d 171 (Ala.1981), cert. denied, 454 U.S. 1058, 102 S.Ct. 606, 70 L.Ed.2d 595 (1981), this court reiterated the standard we must use:

“In reviewing the sufficiency of circumstantial evidence, the test to be applied is ‘ “whether the jury might reasonably find that the evidence excluded every reasonable hypothesis except that of guilt; not whether such evidence excludes every reasonable hypothesis but guilt, but whether a jury might reasonably so conclude. (Citations omitted).” ’ Dolvin v. State, 391 So.2d 133, 137 (Ala.1980); Cumbo v. State, 368 So.2d 871, 874 (Ala.Cr.App.1978), cert. denied, 368 So.2d 877 (Ala.1979).”

We find that the evidence presented in the instant case was sufficient to sustain the verdict.

V

Appellant’s last argument challenges the trial court’s denial of certain requested jury charges. Since no objection was made to this denial and no grounds were stated before the jury retired, we are left with nothing to review. Allen v. State, 414 So.2d 989 (Ala.Cr.App.1981), aff'd, Ex parte Allen, 414 So.2d 993 (Ala.1982).

We conclude that the judgment of the trial court is due to be affirmed.

AFFIRMED.

All the Judges concur.

      . Judge Hubert Taylor resigned from the Court of Criminal Appeals on April 2, 1984. The Judges of the Court of Criminal Appeals had concurred in this decision prior to his resignation.


author: OVERTON, Justice. BOYD, Justice, PER CURIAM.

text:
    THE FLORIDA BAR RE AMENDMENT TO FLORIDA RULES OF CIVIL PROCEDURE (DISSOLUTION OF MARRIAGE).
    No. 62147.
    Supreme Court of Florida.
    Dec. 8, 1983.
    Extension of Effective Date Feb. 17, 1984.
    William O.E. Henry, President, Lakeland, Gerald F. Richman, President-elect, Miami, John F. Harkness, Jr., Executive Director, Tallahassee, Frank D. Newman, Jr., Chairman, Legislation Committee, Miami, and Rayford H. Taylor, Legislative Staff Counsel, Tallahassee, for The Florida Bar, petitioner.
    Wilfred C. Varn, Chairman, Tallahassee, and Henry P. Trawick, Jr., Sarasota, for Civil Procedure Rules Committee, Nancy Y. Smith of Brinson, Smith, Heller & Smith, Kissimmee, for Practice Section of The Florida Bar, and Stephen W. Sessums, Chairman, Tampa, for the Family Law Section of The Florida Bar, responding to proposed amendment.
   OVERTON, Justice.

The Florida Bar has petitioned this Court to amend Florida Rule of Civil Procedure 1.611 (Dissolution of Marriage) to provide a simplified procedure by which dissolution of a marriage of short duration can be obtained by the parties without their having to employ private counsel. This proposed rule amendment has been submitted in response to this Court’s direction that the Bar study the legal needs of Florida citizens and recommend ways of providing accessible, inexpensive legal services to the public. We approve a modified form of the Bar’s proposed amendment, but delay its effective date to afford all interested parties an opportunity to comment.

The suggested simplified dissolution procedure serves several purposes. It makes the courts more accessible and minimizes costs to the parties, while protecting both the interests of the parties in the fair resolution of their case and the interests of the state in this type of proceeding. We find that the suggested rule amendment is a step forward in making Florida’s courts available and affordable. Other jurisdictions have adopted similar simplified dissolution proceedings.

Self-help representation by low income persons in domestic relations matters has been the subject of prior proceedings in this Court. In The Florida Bar v. Brumbaugh, 355 So.2d 1186 (Fla.1978), we considered the matter of secretarial services selling and preparing do-it-yourself divorce kits. In that case, “we took the opportunity to clearly define to non-lawyers the proper realm in which they could operate without engaging in the unauthorized practice of law.” The Florida Bar v. Furman, 376 So.2d 378, 381 (Fla.1979). We held that they could advertise their activities of providing secretarial and notarial services and selling legal forms and general printed information, but directed that they could not “engage in advising clients as to the various remedies available to them, or otherwise assist them in preparing those forms necessary for a dissolution proceeding.” 355 So.2d at 1194. In Furman, we again considered allegations that a secretarial service “engaged in the unauthorized practice of law by giving legal advice and by rendering legal services in connection with marriage dissolutions _” 376 So.2d at 379.

On the basis of the problems raised in these eases, the referee’s report to this Court in Furman urged that “as part of our disposition in ... [that] case we require the bar to conduct a study to determine how to provide effective legal services to the indigent.” Id. at 381-82. We accepted the referee’s suggestion, recognizing that “it is our responsibility to promote the full availability of legal services,” and that “[d]evising means for providing effective legal services to the indigent and poor is a continuing problem.” Id. at 382. Further, we stated that the record in Furman suggested that more attention should be given to the subject and directed “The Florida Bar to begin immediately a study to determine better ways and means of providing legal services to the indigent.” Id.

Pursuant to this Court’s direction, The Florida Bar had prepared a study entitled “The Legal Needs of the Poor and Underrepresented Citizens of Florida: An Overview 1980.” The report, which was filed in this Court on February 1, 1980, stated that there was a need to reduce the complexity of certain litigation and suggested the adoption of a simplified procedure for dissolution of marriages similar to that used in California. The Florida Bar, in part because of the recommendation contained in this report, filed the instant petition under this Court’s rule-making authority, seeking the adoption of a simplified dissolution procedure. The Supreme Court Matrimonial Law Commission, which endorsed the proposal in principle, has recommended certain modifications. These recommendations concern the need for a requirement of corroborative evidence of residence to comply with section 61.052(2), Florida Statutes (1981), and the need for the parties to appear before a judge. The recommendations of the Matrimonial Law Commission concerning corroboration of residency and appearance before a judge are accepted and are incorporated in the modified procedure adopted in this opinion. We have, however, eliminated the limitation suggested by The Florida Bar and the Matrimonial Law Commission that the parties shall have been married for five years or less. Such a limitation, we find, is not necessary when the parties are required to appear before a judge.

In opposition to the proposed simplified dissolution procedure, the Civil Rules Committee of The Florida Bar contends that the determination of whether there should be a summary dissolution of marriage procedure in Florida is a legislative rather than a judicial function. The Civil Rules Committee also raises concerns about the requirement of corroborative evidence of residence as well as the need for testimony that the marriage of the parties to the action is irretrievably broken, as required under section 61.052(2)(a), Florida Statutes (1981).

The General Practice Section of The Florida Bar also opposes the suggested rule amendment and disagrees with the recommendations stated in the “Legal Needs of the Poor” study. The General Practice Section contends that a simplified dissolution procedure will not provide sufficient assistance to the poor. This Court, the section asserts, should not rely on “do-it-yourself procedures” but should instead provide legal consultation so that the rights of the poor are protected. The argument is made that those individuals who would use the simplified dissolution proceedings need legal representation, even where there are no children of the marriage and there is no property dispute.

Increasingly, in many types of legal actions it is neither financially nor economically feasible for litigants to hire attorneys. We have addressed this problem in some areas, including the simplification of small claims type actions, where we have directed court clerks to aid parties in completing the necessary claim forms. We have also adopted simplified probate procedures. The legislature itself has expressly recognized the right of citizens to represent themselves in legal actions. We find that it is this Court’s responsibility to implement simplified court procedures if they reduce legal costs and make courts more accessible to Florida citizens, protect the rights of citizens in the disposition of disputes, protect the public interest in such proceedings, and are consistent with the statutory law in the area addressed. The rule amendment adopted here establishing a simplified dissolution procedure meets these criteria.

In adopting a simplified dissolution procedure, we find that in order to properly protect the interests of the parties and the interests of the state, the parties should personally appear before a judge, who should review the papers filed in the action and make whatever inquiry of the parties necessary to assure that they meet the criteria for the entry of final judgment of dissolution. We also find that, in conformance with section 61.052(2), Florida Statutes (1981), corroboration of residence is necessary from a person not a party to the action. Proof by affidavit, however, is sufficient in a simplified dissolution proceeding unless the presiding judge believes that direct testimony of residence is necessary. To assist the public in using this simplified procedure, we are directing the court clerks to provide the type of assistance which they now provide in small claims matters. Further, we suggest that The Florida Bar prepare an educational pamphlet on this simplified procedure for approval by this Court and for use in each of the clerks’ offices.

In accordance with the views expressed in this opinion, the dissolution of marriage (divorce) rule, Florida Rule of Civil Procedure 1.611, is modified by adding section (c), entitled “Simplified Dissolution Procedure,” which reads as follows:

(c) Simplified Dissolution Procedure.
(1) The parties to the dissolution may file a petition for simplified dissolution if they certify under oath that: There have been no children born to or adopted by the parties during the marriage; the wife is not now pregnant; the parties have made a satisfactory division of their property and have agreed as to payment of their joint obligations; and the other facts set forth in Form 1.943-1 are true.
(2) The clerk shall submit the petition to the court. The parties shall appear before the court in every ease and, if the court so directs, testify. The court, upon examination of the petition and the personal appearance of the parties, shall enter a judgment granting the dissolution, if the requirements of this subsection have been established.
(3) Corroboration of the residency of the parties may be by affidavit in substantially the form provided in Form 1.943-2.
(4) Upon the entry of the judgment, the clerk shall furnish to each party a certified copy of the final judgment of dissolution, which shall be in substantially the form provided in Form 1.995-1.
(5) The clerk shall provide forms for the parties whose circumstances meet the requirements of this subsection and shall assist in the preparation of the petition for dissolution and other papers to be filed in the action.

We have approved the forms to be used in the simplified dissolution procedure. These forms, which include a petition for dissolution of marriage, an affidavit for corroboration of residency, and a final judgment of dissolution, are identified, respectively, as Florida Rules of Civil Procedure Forms 1.943-1, 1.943-2, and 1.995-1. Rule 1.611, as modified, and the approved forms are set out in the appendix to this opinion.

The Florida Bar is directed to publish this rule change in the Florida Bar News by January 15, 1984, so that interested parties may have the opportunity to comment concerning this Court’s modification of this rule and to present their objections or suggestions to this Court on or before February 15, 1984. Barring further amendment or modification as a result of the responses received, the rule shall become effective on March 1, 1984, at 12:01 a.m.

It is so ordered.

ALDERMAN, C.J., and McDONALD and EHRLICH, JJ., concur.

BOYD, J., dissents with an opinion, with which SHAW, J., concurs.

ADKINS, J., dissents.

Appendix

Rule 1.611. Dissolution of Marriage (Divorce)

(a) Financial Statement. Every application for temporary alimony, child support, attorneys’ fees or suit money shall be accompanied by an affidavit specifying the party’s financial circumstances. The affidavit shall be served at the same time that notice of hearing on the application is served. The opposing party shall make an affidavit about his financial circumstances and shall serve it before or at the hearing. If no application for a temporary award is made, the parties shall make and serve the affidavits at least 10 days before the trial if permanent alimony, child support, attorneys’ fees or suit money is sought. If a party is not represented by an attorney, sufficient time will be allowed the party to prepare the required affidavit at hearing or trial. The affidavits shall be in substantially the form approved by the Supreme Court. On the request of either party the affidavits and any other financial information may be sealed.

(b) Payment to Public Officer.

(1) If the chief judge of the circuit by administrative order authorizes the creation of a central governmental depository for the circuit or county within the circuit to receive, record and disburse all support alimony or maintenance payments, as provided in Fla.Stat. (1973) § 61.181, the court may direct that payment be made to the officer designated in the administrative order.

(2) If the court so directs, the payments shall be made to the officer designated. The officer shall keep complete and accurate accounts of all payments received. Payments shall be made by cash, money order, cashier’s or certified check. The officer shall promptly disburse the proceeds to the party entitled to receive them under the judgment or order. Payment may be enforced by the party entitled to it or the court may establish a system under which the officer issues a motion for enforcement and a notice of hearing in the form approved by the Supreme Court. The motion and notice shall be served on the defaulting party in person or by mail. At the hearing the court shall enter an appropriate order based on the testimony presented to it.

(c)Simplified Dissolution Procedure.

(1) The parties to the dissolution may file a petition for simplified dissolution if they certify under oath that: There have been no children born to or adopted by the parties during the marriage; the wife is not now pregnant; the parties have made a satisfactory division of their property and have agreed as to payment of their joint obligations; and the other facts set forth in Form 1.9j3-l are true.

(2) The clerk shall submit the petition to the court. The parties shall appear before the court in every case and, if the court so directs, testify. The court, after examination of the petition and personal appearance of the parties, shall enter a judgment granting the dissolution, if the requirements of this subsection have been established.

(3) Corroboration of the residency of the parties may be by affidavit in sub stantially the form provided in Form 1.943-2.

(4) Upon the entry of the judgment, the clerk shall furnish to each party a certified copy of the final judgment of dissolution, which shall be in substantially the form provided in Form 1.995-1.

(5) The clerk shall provide forms for the parties whose circumstances meet the requirements of this subsection and shall assist in the preparation of the petition for dissolution and other papers to be filed in the action.

Form 1.943-1. Petition for Simplified Dissolution of Marriage

The petition of Husband and Wife shows:

1. This is a petition for dissolution of marriage.

2. The Husband and the Wife or one of them has been a resident of Florida for at least six (6) months immediately prior to filing this petition.

4. The marriage between the parties is irretrievably broken.

5. No children have been born to or adopted by the parties during this marriage and the Wife is not pregnant.

6. The parties have made provisions for the division of their property and the payment of their joint obligations. They are satisfied with those provisions.

7. The parties understand that they may have legal rights against each other arising out of the marital relationship and that by signing this petition they may be giving up those rights.

8. Each party certifies that he/she has not been threatened or pressured into signing this petition. Each understands that the result of signing this petition may be a final dissolution of the marriage with no further relief.

9. The parties understand that they are required to appear before the judge to testify as to the matters contained in this petition.

10. The address of each party is as stated below.

11. The Wife wishes to have her former name restored to her. (Yes _ No _) If “Yes,” state Wife’s former name:

Wherefore, Husband and Wife ask the Court to dissolve the marriage existing between them.

UNDER PENALTY OF PERJURY, WE CERTIFY THE FOREGOING FACTS ARE TRUE.

CLERK OF THE CIRCUIT COURT By-DEPUTY CLERK

Form 1.943-2. Certificate of Corroborating Witness

UNDER PENALTY OF PERJURY I CERTIFY that I am a resident of the State of Florida; I have known (insert name of Husband or Wife) for more than six (6) months preceding this date and I know of my own personal knowledge that such person has resided in the State of Florida for at least six (6) months immediately before filing the petition in these proceedings.

Witness’ Signature

Witness’ Name Typed

Witness’ Residence Address

SWORN TO AND SIGNED before me this_day of_, 19_

CLERK OF THE CIRCUIT COURT

By-DEPUTY CLERK

Form 1.995-1. Final Judgment Dissolving Marriage under Simplified Dissolution Procedure

This action came before the Court upon the petition of the parties for dissolution of their marriage. Upon consideration thereof,

IT IS ADJUDGED that the bonds of marriage between Husband, A.B., and Wife, C.D., are dissolved.

(If applicable) IT IS FURTHER ADJUDGED that the Wife’s former name is restored and she shall hereafter be known as_

ORDERED at_, Florida, on this_day of_, 19_

CIRCUIT JUDGE

BOYD, Justice,

dissenting.

I must respectfully dissent from the Court’s approval of the proposed amendment to Rule of Civil Procedure 1.611. Although I appreciate the efforts of members of the Bar who have participated in formulating the proposal, and I commend them for their efforts, I am compelled to say that their proposal represents unwise policy and does not fulfill the objectives we were trying to achieve when we directed the Bar to find ways to make legal services more available to the public.

I believe it is necessary to make a conceptual distinction between access to judicial processes and access to legal services. Our mandate to the Bar was to recommend ways of providing greater access to legal services. One of the principal means to this end would be, of course, to find ways of making legal services less expensive. The Bar’s proposal instead focuses on the problem of access to judicial processes without professional legal assistance. In making this distinction I am defining “legal services” as the traditionally understood work of lawyers, including legal advice and counsel, representation in judicial proceedings, and representation in negotiations with actual and potential adversaries in judicial proceedings. Access to legal services, then, is a concept clearly distinguishable from access to judicial processes, or, as we commonly express it, “access to courts.” The Bar in proposing the instant amendment, and the Court in approving it, have failed to recognize this distinction, and have therefore failed to see that while the proposal increases the public’s access to courts, it does nothing to increase access to legal services.

The proposed rule sets aside a category of divorce cases (a category which I expect will prove to be numerically insignificant) as suitable for adjudication without the necessity of representation by legal counsel. The proposal carves out this category of cases and determines that in such cases legal representation is not needed. Under the guise of making courts more accessible, the proposal is actually an abdication of the responsibility to make legal assistance more available. As the majority opinion points out, the law already recognizes the right of every person to present his own cause to the court without retaining a lawyer. In effect, therefore, the proposal adds nothing to the rights of litigants to proceed without counsel. It is merely an announcement that in a certain category of cases the organized bar will no longer resist the efforts of citizens to do so.

The proposed rule and forms make reference to satisfactory division of property. Thus the rule contemplates that the parties will have made a separate property division agreement. But there is no requirement that the property division agreement be brought before the court for inspection. Thus it is possible that one of the parties will be harmed by the failure to make the property division agreement in an enforceable form.

As I pointed out above, the limits placed on the category of cases set aside for simplified procedure are likely to make it applicable to only a very small proportion of cases. Thus married couples with children, even though they may be indigent or of very limited means, are not helped by the proposal. The limitation to couples without children will eliminate many of the poor.

The majority opinion points out that the Bar-commissioned study on the legal problems of the poor found that the poor could be helped by reducing the complexity of litigation and adopting a simplified procedure for dissolution of marriage. It is not stretching the concept of judicial notice too much to observe that in general, persons who are literate, somewhat educated, and somewhat knowledgeable about concepts such as legal rights and responsibilities and the enforcement thereof, tend to be more financially able than persons in the less educated, less knowledgeable, and less literate segment of society. Persons in the latter category generally tend to comprise or include “the poor” or “the indigent”— the group which the Bar-commissioned study identified as being in need of relief from the complexity of legal procedures and the lack of access to legal services. Therefore, those persons who are least in need will be in the best position to make use of the simplified procedure without endangering their own rights and vital interests, while those persons identified as being most in need of relief are those least able to intelligently utilize this rule of simplified procedure.

I also agree with the criticism that the proposed rule is an attempt to change substantive law and is therefore beyond the power of the Court. It substantially changes the legal criteria for dissolution of marriage. The Bar initially recognized as much when it included in its proposal a suggested amendment to the statute governing dissolution of marriage.

Therefore I dissent to the promulgation of the rule amendment and would send the matter back to the Bar for further discussion and consideration by interested members.

SHAW, J., concurs.

EXTENSION OF EFFECTIVE DATE

PER CURIAM.

The Florida Bar has suggested that we extend the effective date of the simplified dissolution procedure to afford the Bar sufficient time to prepare an instruction booklet explaining the procedure, as directed in our opinion in this cause, and to assure that

the proper forms are distributed to the circuit court clerks prior to the effective date of this rule amendment. Further, in response to our request for interested parties to comment concerning this new simplified dissolution procedure before February 15, 1984, we have received constructive suggestions for the improvement of the procedures and forms proposed in our opinion.

To provide us an opportunity to modify the rule and forms in accordance with those suggestions, and to assure proper implementation of this simplified dissolution procedure, we hereby extend the effective date of Florida Rule of Civil Procedure 1.611, as directed in our opinion of December 8, 1983, from March 1, 1984, to June 1, 1984.

It is so ordered.

ALDERMAN, C.J, and ADKINS, BOYD, OVERTON, McDONALD, EHRLICH and SHAW, JJ., concur.

      . See Cal.Civ.Code §§ 4550-4556 (Deering 1982), and Colo.Rev.Stat. § 14-10-120.3 (1982); Md.R.P. 610, S74 (1982).

      . See Fla.R.Summ.P. 7.050(c).

      . See Fla.R.P. & G.P. 5.420, 5.520, and 5.530.

      . Section 454.18, Florida Statutes (1981), reads as follows:
      Officers not allowed to practice. — No sheriff or clerk of any court, or deputy of either, shall practice in this stale, nor shall any person not of good moral character, or who has been convicted of an infamous crime be entitled to practice. But no person shall be denied the right to practice on account of sex, race, or color. And any person, whether an attorney or not, or whether within the exceptions mentioned above or not, may conduct his own cause in any court of this state, or before any public board, committee, or officer, subject to the lawful rules and discipline of such court, board, committee, or officer.
      (Emphasis added.)

      . See In the Matter of the Use by the Trial Courts of the Standard Jury Instructions in Criminal Cases and the Standard Jury Instructions in Misdemeanor Cases, 431 So.2d 594 (Fla.1981), in which this Court approved a handbook for grand jurors.

      . Center for Governmental Responsibility, The Legal Needs of the Poor and Underrepresented Citizens of Florida: An Overview (1980).

      . Chapter 61, Florida Statutes (1981).


author: OVERTON, Justice.

text:
    THE FLORIDA BAR RE AMENDMENT TO FLORIDA RULES OF CIVIL PROCEDURE (DISSOLUTION OF MARRIAGE).
    No. 62147.
    Supreme Court of Florida.
    May 3, 1984.
    William O.E. Henry, President, Lakeland, Gerald F. Richman, President-elect, Miami, John F. Harkness, Jr., Executive Director, Tallahassee, Frank D. Newman, Jr., Chairman, Legislation Committee, Miami, and Rayford H. Taylor, Legislative Staff Counsel, Tallahassee, for The Florida Bar, petitioner.
    Wilfred C. Varn, Chairman, Tallahassee, and Henry P. Trawick, Jr., Sarasota, for Civil Procedure Rules Committee; Nancy Y. Smith of Brinson, Smith, Heller & Smith, Kissimmee, for Practice Section of The Florida Bar; and Stephen W. Sessums, Chairman, Tampa, for the Family Law Section of The Florida Bar, responding to Proposed Amendment.
   OVERTON, Justice.

On December 8, 1983, this Court issued a decision approving a simplified procedure by which dissolution of a marriage can be obtained by the parties without having to employ private counsel. 450 So.2d 810. We set the effective .date of the amendment as March 1, 1984, however, to afford all interested parties an opportunity to comment on the rule change and the forms which must be completed pursuant to the simplified dissolution procedure. At the suggestion of The Florida Bar, we extended the effective date of the simplified dissolution procedure to June 1, 1984. The Florida Bar and others submitted to this Court certain suggestions for the improvement of the procedures and forms proposed in our original decision. We have modified the rule to the effect that the reference to children in section (c)(1) pertains only to minor or dependent children. We have also added a provision which permits either the court or the parties to utilize, where appropriate, a property settlement agreement (Form 1.943(c)) and a financial affidavit (Form 1.943(d)). We decline, however, to make the use of the forms mandatory in every case. We also decline to modify the petition for dissolution form to permit the petition to be signed under oath before anyone other than court personnel. We have, however, modified the forms for the affidavit of the corroborating witness and the financial affidavit to permit their execution before either the clerk of the circuit court or a notary public. We have incorporated other nonsubstantive comments and editorial suggestions received from interested parties.

It is our belief that, with these changes, the simplified dissolution procedure will be applicable in a greater number of cases than any other similar procedure in the nation. We request that, after an initial one-year period, the Clerks of the Circuit Courts, the Circuit Judges Conference, and The Florida Bar advise this Court as to any suggested changes necessary to improve the simplified procedure. We adopt Florida Rule of Civil Procedure 1.611 and Forms 1.943(b), (c), (d), (e), and 1.995(b), as modified. The rule and forms are set forth in the appendix to this order. They shall become effective on June 1, 1984, at 12:01 a.m. The Florida Bar may proceed to prepare an instructional pamphlet to aid the parties and clerks in the use of this procedure.

It is so ordered.

ALDERMAN, C.J., and ADKINS, MCDONALD, EHRLICH and SHAW, JJ., concur.

BOYD, J., dissents with an opinion.

Appendix

Rule 1.611. Dissolution of Marriage (Divorce)

(a)Financial Statement. Every application for temporary alimony, child support, attorneys’ fees or suit money shall be accompanied by an affidavit specifying the party’s financial circumstances. The affidavit shall be served at the same time that notice of hearing on the application is served. The opposing party shall make an affidavit about his financial circumstances and shall serve it before or at the hearing. If no application for a temporary award is made, the parties shall make and serve the affidavits at least 10 days before the trial if permanent alimony, child support, attorneys’ fees or suit money is sought. If a party is not represented by an attorney, sufficient time will be allowed the party to prepare the required affidavit at hearing or trial. The affidavits shall be in substantially the form approved by the Supreme Court. On the request of either party the affidavits and any other financial information may be sealed.

(b) Payment to Public Officer.

(1) If the chief judge of the circuit by administrative order authorizes the creation of a central governmental depository for the circuit or county within the circuit to receive, record and disburse all support alimony or maintenance payments, as provided in Fla.Stat. (1983) § 61.181, the court may direct that payment be made to the officer designated in the administrative order.

(2) If the court so directs, the payments shall be made to the officer designated. The officer shall keep complete and accurate accounts of all payments received. Payments shall be made by cash, money order, cashier’s or certified check. The officer shall promptly disburse the proceeds to the party entitled to receive them under the judgment or order. Payment may be enforced by the party entitled to it or the court may establish a system under which the officer issues a motion for enforcement and a notice of hearing in the form approved by the Supreme Court. The motion and notice shall be served on the defaulting party in person or by mail. At the hearing the court shall enter an appropriate order based on the testimony presented to it.

(c) Simplified Dissolution Procedure.

(1) The parties to the dissolution may file a petition for simplified dissolution if they certify under oath that: There are no minor or dependent children of the parties and the wife is not now pregnant; the parties have made a satisfactory division of their property and have agreed as to payment of their joint obligations; and the other facts set forth in Form 1.943(b) are true.

(2) The clerk shall submit the petition to the court. The court shall expeditiously consider the cause. The parties shall appear before the court in every case and, if the court so directs, testify. The court, after examination of the petition and personal appearance of the parties, shall enter a judgment granting the dissolu-

tion if the requirements of this subsection have been established and there has been compliance with the waiting period required by statute.

(3) Corroboration of the residency of the parties may be by affidavit in substantially the form provided in Form 1.343(c). The Financial Affidavit, Form 1.943(d), and the Property Settlement Agreement, Form 1.943(e), may be used when appropriate.

(4) Upon the entry of the judgment, the clerk shall furnish to each party a certified copy of the final judgment of dissolution, which shall be in substantially the form provided in Form 1.995(b).

(5) The clerk shall provide forms for the parties whose circumstances meet the requirements of this subsection and shall assist in the preparation of the petition for dissolution and other papers to be filed in the action.

Form 1.943(a). (No change from previous Form 1.943 — Petition for Dissolution of Marriage)

Form 1.943(b). Petition for Simplified Dissolution of Marriage

The petition of Husband and Wife shows:

1. This is a petition for dissolution of marriage.

2. The Husband and the Wife or one of them has been a resident of Florida for at least six (6) months immediately prior to filing this petition.

4. The marriage between the parties is irretrievably broken.

5. There are no minor or dependent children of the parties and the Wife is not pregnant.

6. The parties have made provisions for the division of their property and the payment of their joint obligations. They are satisfied with those provisions.

[The property settlement agreement entered into by the parties and a financial affidavit from each party are attached.]

7. The parties understand that they may have legal rights against each other arising out of the marital relationship and that by signing this petition they may be giving up those rights.

8. Each party certifies that he/she has not been threatened or pressured into signing this petition. Each understands that the result of signing this petition may be a final dissolution of the marriage with no further relief.

9. The parties understand that they are required to appear before the judge to testify as to the matters contained in this petition.

10. The address of each party is as stated below.

Wherefore, Husband and Wife ask the Court to dissolve the marriage existing between them.

UNDER PENALTY OF PERJURY, WE CERTIFY THE FOREGOING FACTS ARE TRUE.

SWORN TO AND SIGNED before me this _day of_, 19—

CLERK OF THE CIRCUIT COURT

By - DEPUTY CLERK

(NOTE: The property settlement agreement and financial affidavits should be used only when the circumstances are appropriate for their inclusion in the proceeding.)

Form 1.943(c). Certificate of Corroborating Witness

UNDER PENALTY OF PERJURY I CERTIFY that I am a resident of the State of Florida; I have known (insert name of Husband or Wife) for more than six (6) months preceding this date and I know of my own personal knowledge that such person has resided in the State of Florida for at least that period of time.

Witness’ Signature

Witness’ Name Typed

_

-

- Witness’ Residence Address

SWORN TO AND SIGNED before me this _day of_, 19—

CLERK OF THE COURT OR NOTARY PUBLIC

Form 1.943(d). Financial Affidavit for Simplified Dissolution of Marriage STATE OF FLORIDA

COUNTY OF_

Before me, the undersigned authority, personally appeared-, who was sworn and says that the following statement of affiant’s income, assets, and liabilities is true:

Occupation-

Employed by --

Business address -

Pay period -

Item 1: INCOME (Averaged on-Basis):

Average GROSS Wage $_

Less Deductions

Federal Income Tax $_

Social Security $_

Other $_

Total Deductions $_

Average NET Wage $_

Other Income

- $-

- $-

TOTAL NET INCOME $_

Item 2: ASSETS

Cash on hand or in banks $_

Stocks, bonds, notes $_

Real estate

Home $_

Other • $_

Automobiles $_

Other personal property $_

Other assets

$.

TOTAL ASSETS $

Item 3: LIABILITIES

Real estate mortgages $.

Automobile loans $.

Other Notes and Loans $.

Other

$■

_ $.

TOTAL LIABILITIES $.

Affiant

Sworn to and subscribed before me this _day of_, 19_

CLERK OF THE COURT OR NOTARY PUBLIC

(NOTE: A financial affidavit may not be necessary in every case, particularly where the parties have already completed a division of their property. A financial affidavit would be appropriate, however, where there is a continuing obligation of one or both parties because of the property agreement.)

Form 1.943(e). Property Settlement Agreement for Simplified Dissolution of Marriage

We, - (the Husband) and -(the Wife) were married on-Because irreconcilable differences have caused the permanent breakdown of our marriage, we have made this agreement to settle once and for all what we owe to each other and what we can expect from each other. Each of us states that nothing has been held back, that we have honestly included everything we could think of in listing the money and goods that we own; and each of us states that we believe the other one has been open and honest in writing up this agreement. Each of us agrees to sign and exchange any papers that might be needed to complete this agreement.

Division of Property

We divide our property as follows:

1. Husband transfers to Wife as her sole and separate ^property:

A.

B.

C.

D.

E.

F.

G.

2. Wife transfers to Husband as his sole and separate property:

A.

B.

C.

D.

E.

F.

G.

Division of Debts

1. Husband shall pay the following debts and will not at any time hold Wife responsible for them:

A.

B.

C.

D.

E.

2. Wife shall pay the following debts and will not at any time hold Husband responsible for them:

A.

B.

C.

D.

E.

Dated: _ Dated: -

Husband Wife

Form 1.995(a). (No change from previous Form 1.995 — Final Judgment Dissolving Marriage)

Form 1.995(b). Final Judgment Dissolving Marriage under Simplified Dissolution Procedure.

This action came before the Court upon the petition of the parties for dissolution of their marriage. Upon consideration thereof,

IT IS ADJUDGED that the bonds of marriage between Husband, A.B., and Wife, C.D., are dissolved.

(If applicable) IT IS FURTHER ADJUDGED that the Wife’s former name is restored and she shall hereafter be known as_

(If applicable) IT IS FURTHER ADJUDGED that the property settlement agreement filed in this proceeding as Exhibit _ was executed voluntarily after full disclosure and is approved and incorporated in this judgment by reference, and the parties are ordered to comply with it.

ORDERED at_, Florida, on this_day of_, 19_

CIRCUIT JUDGE

(NOTE: This final judgment is subject to the provisions of Fla.Stat. (1983) § 61.19 which relates to a required 20-day waiting period.)

BOYD, Justice, dissenting.

Few experiences in life have greater significance than marriage and divorce. Neither should be entered into in a frivolous manner.

Without legal advice marriage partners do not know their rights and obligations. Certainly, no one should expect busy trial judges to counsel with or advise domestic relations litigants who appear before them.

Society has an interest in preserving marriages for many reasons. The institution of marriage is a cornerstone of civilization and the state should not try to make termination of marriages so easy that it actually invites divorce.

An argument is made that some people who seek divorces are not able to pay legal fees. With lawyers on television offering cut-rate fees of about one hundred dollars and with many lawyers doing free legal work for the poor, surely no truly needy person would be denied access to courts for economic reasons.

Although I greatly appreciate the work done by members of The Florida Bar in proposing this rule, I respectfully dissent.