text:
    Elizabeth L. NUSSBAUMER, Appellant, v. John J. NUSSBAUMER, Appellee.
    No. 83-888.
    District Court of Appeal of Florida, Fifth District.
    Dec. 21, 1983.

      Christopher J. Smith of Williams & Smith, Tavares, for appellant.
    No appearance for appellee.
   COWART, Judge.

This case involves the question of the scope of a Florida court’s jurisdiction to modify a child custody decree of a foreign state.

The parties to this action have been separated since May of 1980. At that time, the appellant-mother moved from New Jersey to Pennsylvania where she and the three minor children of the parties lived until July of 1982. In October of 1981 the mother filed for divorce in Pennsylvania and asked for custody of the three children but there was no valid service of process in the case. In January of 1982 the father moved from New Jersey to Florida. In July of 1982 the father traveled to Pennsylvania and removed the children from Pennsylvania to Florida. On November 3, 1982, the mother filed a habeas corpus petition for custody in the pending Pennsylvania dissolution action. The Pennsylvania court accepted jurisdiction of the cause pursuant to the Pennsylvania version of the Uniform Child Custody Jurisdiction Act. On November 30, 1982, the mother petitioned the Pennsylvania court for service of process by publication on the father in the habeas corpus proceeding alleging that she had unsuccessfully attempted to serve the father by certified mail and that she did not know the father’s whereabouts. On December 3, 1982, the Pennsylvania court entered an order allowing service by publication. Service of process by publication was made. On December 29, 1982, the Pennsylvania court entered an order finding that Pennsylvania had jurisdiction and granting custody of the three minor children to the mother. On January 10, 1983, the mother filed, in the circuit court for Lake County, a petition to enforce the custody judgment of the Pennsylvania court. At a hearing on the mother’s petition the father argued that the children, while in the mother’s custody, had been neglected and subjected to mistreatment and abuse. The trial court held a hearing on the father’s allegations and, after hearing the evidence, assumed jurisdiction to grant permanent custody to the father. We reverse.

The trial court found that it had jurisdiction under section 61.1308(l)(c)2., Florida Statutes (1981), which states:

A court of this state which is competent to decide child custody matters has jurisdiction to make a child custody determination by initial or modification decree if ... it is necessary in an emergency to protect the child because he has been subjected to or threatened with mistreatment or abuse or is otherwise neglected....

This finding of emergency jurisdiction under the Uniform Child Custody Jurisdiction Act was based on testimony from the father and his relatives that the children, while in the mother’s custody, had appeared neglected, i.e., they appeared thin, their clothes were dirty and they suffered from ringworm or impetigo. We recognize the trial court’s concern for the best interests of the minor children but hold that the trial court erred in assuming jurisdiction to make a permanent change of custody. The emergency jurisdiction provision of the Uniform Child Custody Jurisdiction Act is not designed to confer jurisdiction to make a permanent custody decree based upon allegations that a child would be subject to mistreatment or abuse if returned to the custody of the other parent. Nelson v. Nelson, 433 So.2d 1015 (Fla. 3d DCA 1983).

Where a Florida court is presented with substantial evidence of imminent physical or emotional danger to the child upon the child’s return to the custodial parent, it is, under the doctrine of parens patri-ae, empowered to issue a temporary protective order which will preserve the status quo for such limited time as is required to permit the petitioner to apply for a change of permanent custody to the state which has jurisdiction over such a petition under the provisions of the Uniform Child Custody Jurisdiction Act.

Id. at 1019.

Furthermore, section 61.133, Florida Statutes (1981), states that:

If a court of another state has made a custody decree, a court of this state shall not modify that decree unless: (a) it appears to the court of this state that the court which rendered the decree does not now have jurisdiction under jurisdictional prerequisites substantially in accordance with this act or has declined to assume jurisdiction to modify the decree; and (b) the court of this state has jurisdiction.

At the time the father’s petition was filed, the children had been living with the father in Florida for over six months. Therefore, Florida could be considered the “home state” of the children. Nonetheless, the Pennsylvania court had jurisdiction to modify its previous custody order under the Pennsylvania counterpart of section 61.1308(l)(b), Florida Statutes (1981). That section of the Uniform Child Custody Jurisdiction Act confers jurisdiction on a court where it is in the best interest of the child that the court assume jurisdiction because the child and his parents or the child and at least one contestant have a significant connection with the state and there is available in the state substantial evidence concerning the child’s present or future care, protection, training and personal relationships. It is not required that the child be physically present in the state. Since the child had resided in Pennsylvania with their mother for over two years prior to being removed to Florida by the father, and the mother continued to reside in Pennsylvania the Pennsylvania court had subject matter jurisdiction based on the children’s significant connections with Pennsylvania and the presence in Pennsylvania of substantial evidence concerning the children’s present or future care, protection, training and personal relationships. In fact, at the hearing in Florida, two of the father’s witnesses came from New Jersey to testify and two came from Pennsylvania. There is nothing in the record to show that Pennsylvania would not have jurisdiction or would have declined to assume jurisdiction to modify its previous custody order. Under these circumstances, section 61.133, Florida Statutes (1981), applies and mandates that a Florida court shall not make a permanent change in the custody established by the decree of another state. This interpretation of the statute is consistent with the purposes of the Uniform Child Custody Jurisdiction Act.

In conclusion, the trial court should have recognized the Pennsylvania custody decree and should have refused the father’s petition for a permanent change of custody. On remand, the trial court, if it is satisfied that it is necessary in the best interest of the children, may issue a temporary order maintaining custody in the father for a period of time no longer than is reasonably necessary to allow the father to present his allegations of neglect and mistreatment of the children by the mother to the proper Pennsylvania court.

REVERSED and REMANDED for proceedings consistent with this opinion.

ORFINGER, C.J., and COBB, J., concur.

      . 42 Pa.C.S.A. §§ 5341 and 5366. See also §§ 61.1302-61.1348, Fla.Stat. (1981); 9 U.L.A. Uniform Child Custody Jurisdiction Act.

      . In in rem or quasi-in rem actions service of process by publication on missing or unknown persons may be all the notice and opportunity to be heard that the situation permits and creates no constitutional bar to a final decree foreclosing the rights of the person served by publication. Schroeder v. New York, 371 U.S. 208, 83 S.Ct. 279, 9 L.Ed.2d 255 (1962); Mullane v. Central Hanover Bank and Trust Co., 339 U.S. 306, 70 S.Ct. 652, 94 L.Ed. 865 (1950). See also § 61.1312(l)(d), Fla.Stat. (1981), permitting service of process by publication in child custody matters where other means of notification are ineffective.

      . We have considered whether a Florida court must recognize the jurisdiction of the Pennsylvania court to make a custody decree where the foreign court lacks personal jurisdiction over the father and the children were not physically present in the foreign state. We find that recognition is required by section 61.1328, Florida Statutes (1981). This recognition is consistent with principles of comity, Beckwith v. Bailey, 119 Fla. 316, 161 So. 576 (1935), and the full faith and credit clause of the United States Constitution. May v. Anderson, 345 U.S. 528, 73 S.Ct. 840, 97 L.Ed. 1221 (1953). See also 28 U.S.C. § 1738A, The Parental Kidnapping Prevention Act of 1980 enacted pursuant to Art. IV, § 1, United States Constitution. This act, if constitutional, requires that states give full faith and credit to custody decrees of other states entered in accordance with the requirements of the act and has been held to pre-empt state law. See, e.g., Flannery v. Stephenson, 416 So.2d 1034 (AIa.Civ.App.1982); Diane W. v. Norman W., 446 N.Y.S.2d 174, 112 Misc.2d 114 (1982); Tufares v. Wright, 644 P.2d 522, 98 N.M. 8 (1982); State ex rel. Valles v. Brown, 639 P.2d 1181, 97 N.M. 327 (1981). For an excellent discussion of constitutional jurisdictional requirements as they relate to the Uniform Child Custody Jurisdiction Act see In re Marriage of Leonard, 175 Cal.Rptr. 903, 122 Cal.App.3d 443 (1981). For a general discussion of the theories of jurisdiction to award custody of a child having a legal domicile outside the forum state see 4 A.L.R.2d 7. For a discussion of the theories of jurisdiction to award custody of a child domiciled in the forum state but physically outside of it see 9 A.L.R.2d 434. For a discussion of the extraterritorial effect of a valid award of custody in absence of a substantial change in circumstances see 35 A.L.R.3d 520. For related annotations and a discussion of the Uniform Child Custody Jurisdiction Act see 96 A.L.R.3d 968. Generally, see, Uniform Child Custody Jurisdiction Act 6 Fla. State L.Rev. 409 (1978); Frumkes and Elser, Uniform Child Custody Jurisdiction: Florida Experience, 53 Fla.Bar Journal 684 (1979); Cain, Jurisdiction under the Uniform Child Custody Jurisdiction Act: Where does it begin— Where does it end?, The Family Law Commentator, The Florida Bar, section of Family Law, September, 1983.

        .Hegler v. Hegler, 383 So.2d 1134 (Fla. 5th DCA 1980), held that the trial court did not have jurisdiction under the allegations in the pleadings. While Hegler suggested that the trial court might have emergency jurisdiction under § 61.-1308(c), Florida Statutes (1977), Hegler did not hold that this emergency jurisdiction would include jurisdiction to make a permanent change of custody. Indeed, Hegler recognized that the unfavorable circumstances of the children’s Maryland home was “a matter which could be much more appropriately addressed in Maryland." 383 So.2d at 1137.

      . The use of the term "modify” to denote a custody decree which supersedes a decree previously entered by another state is incorrect. Although the effect is to modify the custody arrangement between the parties, a court of one state has no power to modify the decree entered by a court of another state. See Lopez v. Avery, 66 So.2d 689, 693-694 (Fla.1953); Helmick v. Helmick, 436 So.2d 1122 (Fla. 5th DCA 1983) (concurring opinion page 1127).

      . § 61.1306(5), Fla.Stat. (1981).

      . § 61.1308(3), Fla.Stat. (1981).

      . See also 28 U.S.C. § 1738A(f) which prohibits a court of a state from modifying the custody determination of another state's court where the other state has continuing jurisdiction under subsection (d) and the other state has not declined to exercise that jurisdiction:

      . See 9 U.L.A. Uniform Child Custody Jurisdiction Act § 14 and commissioner's note. “For example, if custody was awarded to the father in state one where he continued to live with the children for two years and thereafter his wife kept the children in state two for six and a half months (three and a half months beyond her visitation privileges) with or without permission of the husband, state one has preferred jurisdiction to modify the decree despite the fact that state two has in the meantime become the "home state” of the child.” Id.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    FIRST AMERICAN BANK OF PALM BEACH COUNTY, a Florida Banking Corporation, Appellant, v. Filberto HERNANDEZ and Frances Hernandez a/k/a Frances Navarro, Appellees.
    No. 82-1605.
    District Court of Appeal of Florida, Fourth District.
    Dec. 21, 1983.
    Roger C. Hurd and James E. Copeland of the Law Offices of Roger C. Hurd, North Palm Beach, for appellant.
    David C. Wiitala of Ingalsbe, McManus, Wiitala & Contóle, P.A., North Palm Beach, for appellees.
   PER CURIAM.

Reversed and remanded for a new trial on all issues. We believe the trial court erred in directing a verdict against the creditor bank in the face of an issue of fact as to the status of appellees’ loan payments to the appellant. We also believe the trial court erred in its instructions to the jury on damages. Cf. Mercury Motor Express, Inc. v. Crockett, 422 So.2d 358 (Fla. 1st DCA 1982).

ANSTEAD, C.J., and GLICKSTEIN and WALDEN, JJ., concur.


author: PER CURIAM. ANSTEAD, Chief Judge,

text:
    KUSHNER, INC., d/b/a Hal’s Towing Service, Appellant, v. CITY OF HOLLYWOOD, a municipal corporation, and Mac’s Towing, Inc., Appellees.
    No. 82-2394.
    District Court of Appeal of Florida, Fourth District.
    Dec. 21, 1983.
    Michael W. Ullman of Ullman & Ullman, P.A., North Miami Beach, for appellant.
    Nancy A. Cousins, City Atty. and Leonard Lubart, Asst. City Atty., Hollywood, for appellee City of Hollywood.
    Frank W. Peterman, Dania, for appellee Mac’s Towing, Inc.
   PER CURIAM.

After dismissal of an initial and two amended complaints appellant elected to stand on its third amended complaint and here appeals from its ultimate dismissal. We affirm. Despite allegations which attempted to establish six different causes of action we conclude that the trial court correctly determined that none was adequately pled. On the other hand it appears that a cause of action could be alleged based upon defects in the city ordinance involved here and we specifically do not by our holding, intend to prejudice appellant’s right to pursue its remedies with regard to such defects. With that reservation, we affirm.

HERSEY and DELL, JJ., concur.

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

ANSTEAD, Chief Judge,

specially concurring:

Although I agree with the views expressed in the majority opinion, I would remand this cause with directions to allow the appellant an opportunity to file an amended complaint challenging the validity of the ordinance in question as it applies to the appellant.


text:
    Lois FASSBERG and Sidney Fassberg, Appellants, v. ALBERTSON’S, INC., a Florida corporation, Appellee.
    No. 83-189.
    District Court of Appeal of Florida, Fourth District.
    Dec. 21, 1983.
    Richard A. Kupfer of Cone, Wagner, Nu-gent, Johnson, Hazouri & Roth, P.A., West Palm Beach, for appellants.
    Barbara J. Compiani of Edna L. Caruso,' P.A., and Montgomery, Lytal, Reiter, Den-ney & Searcy, P.A., West Palm Beach, for appellee.
   PER CURIAM.

Reversed and remanded for further proceedings on the authority of Montgomery v. Florida Jitney Jungle Stores, Inc., 281 So.2d 302 (Fla.1973) and Winn-Dixie Stores, Inc. v. Williams, 264 So.2d 862 (Fla. 3d DCA 1972).

ANSTEAD, C.J., and DOWNEY and HERSEY, JJ., concur.


text:
    The CREDIT BUREAU, INC., Appellant, v. Lennard FELDMAN, joined By his wife, Beverly FELDMAN, Appellees.
    No. 83-1366.
    District Court of Appeal of Florida, Fourth District.
    Dec. 21, 1983.
    Earl D. Waldin, Jr., and John H. Hickey of Smathers & Thompson, Miami, for appellant.
    Kimberly V. Barenz of Law Offices of Kimberly V. Barenz, Boca Raton, for appel-lees.
   PER CURIAM.

The trial court denied a motion filed pursuant to Section 47.122, Florida Statutes (1981), to transfer venue from Palm Beach County to Dade County. We find no abuse of discretion and affirm. Hertz v. Rentz, 326 So.2d 216 (Fla. 4th DCA 1976).

AFFIRMED.

ANSTEAD, C.J., and DOWNEY and HERSEY, JJ., concur.


text:
    NEW MARK GLEN, Appellant, v. William T. HART and State of Florida Unemployment Appeals Commission, Appellee.
    No. 83-1380.
    District Court of Appeal of Florida, Fourth District.
    Dec. 21, 1983.
    William H. Kilby, Fort Lauderdale, for appellant.
    Geri Atkinson-Hazelton, Tallahassee, for appellee Unemployment Appeals Com’n.
   PER CURIAM.

Affirmed. Williams v. Florida Department of Commerce, Industrial Relations Commission, 326 So.2d 237 (Fla. 3d DCA 1976).

ANSTEAD, C.J., and DOWNEY and DELL, JJ., concur.


text:
    Stephen Andrew EDMONDS, Appellant, v. Susan J. EDMONDS, Appellee.
    No. 82-2501.
    District Court of Appeal of Florida, Fourth District.
    Dec. 21, 1983.
    Robert V. Romani of Farish, Farish & Romani, West Palm Beach, for appellant.
    Montgomery, Lytal, Reiter, Denney & Searcy, P.A., and Edna L. Caruso of Edna L. Caruso, P.A., West Palm Beach, for appellee.
   PER CURIAM.

AFFIRMED.

HERSEY and DELL, JJ., concur.

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

ANSTEAD, Chief Judge,

concurring specially:

I concur in the affirmance of the trial court’s awards of lump sum and rehabilitative alimony. It appears to me that such awards now occupy a status similar to that of damage awards in other legal settings where there are claims that the awards are inadequate or excessive. Of course, the guidelines for making alimony awards are somewhat more precise than the guidelines utilized, for example, to determine damages in a personal injury case. Nevertheless, it is apparent that the degree of discretion now vested in a trial judge is substantial, and, just as a damage award will not be disturbed as inadequate or excessive in a personal injury case unless it falls outside “a reasonable range” for such awards, similarly an award of alimony will be upheld so long as it can be said that “reasonable men could differ” as to the propriety of the award. See Conner v. Conner, 439 So.2d 887 (Fla.1983); Canakaris v. Canakaris, 382 So.2d 1197 (Fla.1980); Lopez v. Lopez, 438 So.2d 984 (Fla. 3d DCA 1983); Sanders v. Sanders, 435 So.2d 372 (Fla. 5th DCA 1983); School Board v. Taylor, 365 So.2d 1044 (Fla. 4th DCA 1978).


text:
    Etta WHITE, Appellant, v. Thomas GORDON, Jr., D.D.S., Appellee.
    No. 83-445.
    District Court of Appeal of Florida, Fifth District.
    Dec. 22, 1983.
    Nolan Carter, P.A., Orlando, for appellant.
    Walter A. Ketcham, Jr., of Walker, Buck-master, Miller & Ketcham, Orlando, for appellee.
   PER CURIAM.

AFFIRMED. See Johnson v. Szymanski, 368 So.2d 370 (Fla. 2d DCA 1979), cert. den., 378 So.2d 350 (Fla.1979).

COBB, FRANK D. UPCHURCH, Jr. and COWART, JJ., concur.


author:
PER CURIAM.
      SHARP, Judge,

text:
    In re the Expulsion of Jeff PERRY, a student, Appellant, v. The SCHOOL BOARD OF PUTNAM COUNTY, Appellee.
    No. 83-1212.
    District Court of Appeal of Florida, Fifth District.
    Dec. 22, 1983.
    Angus W. Harriett of Harriett & Sproull, P.A., Palatka, for appellant.
    Ned N. Julian, Jr., of Stenstrom, McIntosh, Julian, Colbert & Whigham, P.A., Sanford, for appellee.
   PER CURIAM.

AFFIRMED.

FRANK D. UPCHURCH, Jr. and CO-WART, JJ., concur.

SHARP, J., dissents with opinion.

SHARP, Judge,

dissenting.

Jeff Perry, a thirteen year old former student at the Beasley Middle School, appeals his expulsion from the school for the first six weeks of the 1983-84 school year and his assignment to the alternative school program for the second and third grading periods. He was charged with violating Rule XI of the Putnam County School Board, “conduct subversive to good order at the school,” and was afforded a hearing before the Putnam County School Board. Jeff brought to school a pill, which he was told by a high school student was “speed,” and sold it to another student for $1.00. The nature of the pill was not established, and the parties concede no one knows whether it was actually an illegal drug.

Jeff raises numerous points on this appeal, some of which I think have merit. At the hearing, Jeff’s violation of Rule XI was established in primarily three ways: Jeffs handwritten confession and oral statements made to the school personnel; the transcribed testimony of another student at another hearing; and Jeffs own testimony. There is a serious constitutional problem with each. See Tinker v. Des Moines School District, 393 U.S. 503, 89 S.Ct. 733, 21 L.Ed.2d 731 (1969).

A student faced with disciplinary proceedings is not entitled to Miranda warnings prior to being interrogated by school authorities. However, it appears to me that the voluntary nature of Jeffs statements is highly suspect. See In Re Brendan H., 82 Misc.2d 1077, 372 N.Y.S.2d 473 (N.Y.Fam.Ct.1975). Jeff was not told that his statement would be used against him at the expulsion proceeding, or even that the charges against him could result in his expulsion or suspension. At that time, his parents were not present, nor had they been told of the charges against him. Jeff was only thirteen, and apparently had not been in serious trouble before at school. And finally, the school authority who questioned him, Dean Buckles, told Jeff that if he would sign the written statement, “he would do all he could to help” him. School authorities do stand in loco parentis with the students, and they should deal fairly with them. King v. Dade County Board of Public Instruction, 286 So.2d 256 (Fla. 3d DCA 1973), cert. denied, 294 So.2d 89 (Fla.1974).

When Jeff was called to testify against himself at thé school board hearing, his attorney objected, but failed to specify Jeffs fifth amendment rights as the basis for his objection. One member of the school board said she thought it was unfair to require him to testify. The board also allowed Jeffs mother to object on his behalf, which she did essentially on the ground of lack of fairness. Under these circumstances, I think the board or its counsel should have informed Jeff and his parents of his right not to testify, or they should not have called him as a witness. See C.G.H. v. State, 404 So.2d 400 (Fla. 5th DCA 1981); R.V.P. v. State, 395 So.2d 291 (Fla. 5th DCA 1981); Cochran v. State, 117 So.2d 544 (Fla. 3d DCA 1960).

The final element of proof consisted of another student’s deposition testimony taken at a proceeding to which Jeff was not a party and at which he had no right of cross-examination. It was clearly hearsay and Jeff’s attorney challenged its admission on that basis. He also pointed out he had not been shown the proffered testimony prior to the time it was being read to the school board, and therefore, may have been deprived of an opportunity to raise other objections to its admission, or parts of it. In view of the quality of the other proofs against Jeff at this hearing, the deposition cannot be considered merely cumulative. Alone it cannot sustain a finding against Jeff. See Franklin v. District School Board of Hendry County, 356 So.2d 931 (Fla. 2d DCA 1979).

I would reverse.

      . Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

      . United States v. Parr-Pla, 549 F.2d 660 (9th Cir.), cert. denied, 431 U.S. 972, 97 S.Ct. 2935, 53 L.Ed.2d 1069 (1977); cf. Baxter v. Palmigiano, 425 U.S. 308, 96 S.Ct. 1551, 47 L.Ed.2d 810 (1976).

      . In Re Gault, 387 U.S. 1, 87 S.Ct. 1428, 18 L.Ed.2d 527 (1967); Gonzales v. McEuen, 435 F.Supp. 460, (C.D.Cal.1977); Caldwell v. Cannady, 340 F.Supp. 835 (N.D.Texas 1972); Kozerowitz v. Florida Real Estate Commission, 289 So.2d 391 (Fla.1974); U.S. Const. art. V; Art. I, § 9, Fla. Const.

        .See Hart v. Ferris State College, 557 F.Supp. 1379 (W.D.Mich.1983); Gonzales.


text:
    Ruben SANTANA, Appellant, v. The STATE of Florida, Appellee.
    No. 83-1570.
    District Court of Appeal of Florida, Third District.
    Dec. 27, 1983.
    Humberto J. Aguilar, Miami, for appellant.
    Jim Smith, Atty. Gen., and Richard E. Doran, Asst. Atty. Gen., for appellee.
    Before BARKDULL, DANIEL S. PEARSON and JORGENSON, JJ.
   PER CURIAM.

Ruben Santana filed a motion to correct sentence pursuant to Villery v. Florida Parole & Probation Commission, 396 So.2d 1107 (Fla.1980). The trial court granted the motion and, without the defendant’s being present, resentenced Santana to five years in the state penitentiary, a sentence that was at variance with Santana’s plea agreement. The state candidly and appropriately acknowledges the compound error, see State v. Scott, 439 So.2d 219 (Fla.1983) (defendant has right to be present except in the most exceptional cases); Forbert v. State, 437 So.2d 1079 (Fla.1983) (defendant should be permitted to withdraw a guilty plea if sentence imposed is not contemplated by plea agreement).

Accordingly, in light of the foregoing authorities, we remand to the trial court with directions to vacate the sentence of five years and to resentence the defendant.

Remanded with directions.


text:
    Philip G. STIMPSON, Appellant, v. Anke R. STIMPSON, Appellee.
    No. 83-2174.
    District Court of Appeal of Florida, Third District.
    Dec. 27, 1983.
    Hershoff & Levy, Miami, for appellant.
    Alan Rosenthal, Miami, for appellee.
    Before HUBBART, FERGUSON and JORGENSON, JJ.
   PER CURIAM.

The appellee concedes failure to perfect constructive service of process and failure to comply with chapter 49 or section 61.-1312, Florida Statutes (1981). The trial court erred in denying the appellant’s motion to dismiss the appellee’s petition for dissolution of marriage. See Gelkop v. Gelkop, 384 So.2d 195 (Fla. 3d DCA 1980); Overholser v. Overstreet, 383 So.2d 953 (Fla. 3d DCA 1980).

Accordingly, the trial court’s non-final order granting temporary custody and temporary alimony is reversed, and this action is remanded to the trial court for further proceedings.


text:
    Louis WECHSLER, Appellant, v. BEALL & ASSOCIATES ROOFING CORPORATION, a Florida corporation, and Kent Insurance Company, a foreign corporation, Appellees.
    No. 82-2635.
    District Court of Appeal of Florida, Third District.
    Dec. 27, 1983.
    Scott & Sentner, North Miami, for appellant.
    Kathleen V. McCarthy, Miami, for appel-lees.
    Before SCHWARTZ, C.J., and HUB-BART and DANIEL S. PEARSON, JJ.
   ON MOTION FOR REHEARING

PER CURIAM.

We grant the appellees’ motion for rehearing and withdraw our opinion filed November 8, 1983, and substitute the following:

We affirm the judgment for Kent Insurance Company which determined that Kent’s policy of insurance issued to Beall & Associates Roofing Corporation excluded coverage for the replacement and repair of appellant’s roof. Although such policy of insurance did not exclude coverage for other property damage caused by Beall’s negligence, for example, damages to the walls and interior of appellant’s home, furnishings and objects therein, see La Marche v. Shelby Mutual Insurance Co., 390 So.2d 325 (Fla.1980), the appellant withdrew from the jury’s consideration his claim for such damages.

Affirmed.


text:
    Alvin Tyrone THORNTON, Appellant, v. STATE of Florida, Appellee.
    No. 82-1208.
    District Court of Appeal of Florida, Fourth District.
    Dec. 28, 1983.
    Rehearing Denied Feb. 8, 1984.

      Richard L. Jorandby, Public Defender, and Gary Caldwell, Asst. Public Defender, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Marlyn J. Altman, Asst. Atty. Gen., West Palm Beach, for appellee.
   OPINION ON REHEARING

PER CURIAM.

This opinion supercedes our original opinion in this case.

Between 11:30 a.m. and 12:00 p.m. on January 31, 1982, appellant was arrested for the murder of James Williams. At that time appellant showed a willingness to talk, but was cut off by the police reading him his Miranda rights. Appellant was then transported to the police station and arrived approximately ten minutes after his arrest (i.e., between 11:40 and 12:10). At 12:50 p.m. an interview of appellant began. Officer Ciani asked appellant where the gun was and a few other questions. Appellant did not answer. Appellant was told there were witnesses claiming that “he did it” and that he would feel better if he talked about the incident. Appellant refused to talk until he heard what the witnesses had to say. At 1:00 p.m. appellant signed a waiver of rights form after having been read his Miranda rights again. Appellant then made a statement claiming self defense.

At trial the prosecutor attempted to show that appellant was warned of his constitutional rights, that he waived those rights and voluntarily made a statement in which he admitted killing James Williams but only in self defense. The prosecutor asked Officer Ciani about the first time he read appellant his Miranda rights at the time of his arrest.

Q. Did Mr. Thornton, the first time you read him his rights, give you an indication that he did not understand what you were saying?

Officer Ciani’s answer was not confined to the question asked:

A. No, sir. He replied, “Yes,” that he understood, and he did not answer any questions at the initial time of arrest.

Counsel for appellant timely objected and moved for a mistrial on the ground that the witness commented on appellant’s right to remain silent. The trial judge denied the motion.

Appellant refused to talk to Officer Ciani prior to signing the waiver of rights form and subsequent to the post-arrest Miranda warnings. Thus, the comment volunteered by the police officer witness violated appellant’s right to remain silent (or, more correctly, the correlative and derivative right not to have the state employ the exercise of the right to remain silent as probative of guilt).

In Griffin v. California, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106 (1965), the Court held that the Federal Constitution forbids comment by the prosecution on the accused’s silence. However, a violation of the Griffin rule may be harmless error under federal law if there is no reasonable possibility that the statements contributed to a conviction. Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705, 24 A.L.R.3d 1065 (1967). The burden is on the prosecution to prove this beyond a reasonable doubt. Id.

In Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976), the Court held that post-arrest silence after receiving warnings mandated by Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966) cannot be used for substantive or impeachment purposes because to do so would violate Due Process. A violation of Doyle, however, may or may not be harmless error. See Young v. Rees, 707 F.2d 935 (6th Cir.1983) (where the appellant claimed an abuse of his rights under Doyle, supra. The court affirmed without dealing with the appellant’s claim since the lower court concluded that if appellant’s Miranda rights had been offended, such error was harmless beyond reasonable doubt, citing to Chapman, supra)', and see Sullivan v. Alabama, 666 F.2d 478 (11th Cir. 1982).

In Florida, case law makes it clear that any comment on a defendant’s right to remain silent is reversible error unless the error occurred under one of very limited excepted circumstances. Thus, Florida’s standard is stricter than the federal standard, as illustrated by Clark v. State, 363 So.2d 331 (Fla.1978) where the court said in part:

Finding that the Federal Constitution and the holdings of the United States Supreme Court do not mandate the adoption of an absolute rule requiring reversal in every case where there has been an improper comment on the defendant’s right to remain silent, and concluding that the application of the contemporaneous objection rule in this type of case will promote the administration of justice in the State of Florida, we determine that Bostic and Clark, because of their failure to object at trial, may not for the first time raise this issue on appeal. In reaching this decision, we hold the following:
1. Reversible error occurs in a jury trial when a prosecutor improperly comments upon or elicits an improper comment from a witness concerning the defendant’s exercise of his right to remain silent. Likewise, reversible error occurs when any state, defense or court witness in a jury trial spontaneously volunteers testimony concerning the defendant’s exercise of his right to remain silent.
2. In a non-jury trial, an improper comment concerning the defendant’s exercise of his right to remain silent is not necessarily reversible error, and it may be disregarded by the trial courts; however, it may serve as grounds for appropriate sanctions against the offending prosecutor or witness.
3. No error occurs when defense counsel comments upon or elicits testimony concerning the defendant’s exercise of his right to remain silent. The same is true if defense counsel were to improperly suggest to a friendly witness that he “spontaneously” comment on the defendant’s exercise of his right to remain silent so as to give him a mistrial. A defendant may not make or invite an improper comment and later seek reversal based on that comment.
4. When there is an improper comment, the defendant, if he is offended, has the obligation to object, and to request a mistrial. If the defendant does not want a mistrial, he may waive his objection.

At first blush it might appear that once the defendant comes forward with a statement or takes the stand to testify in his own behalf, he has abandoned the right to remain silent earlier exercised, permitting comment thereon by the state. The fatal illogic of this position is explained in Marshall v. State, 393 So.2d 584 (Fla. 1st DCA 1981) in the following summary:

Precisely because evidence of Marshall's silence when taken into custody was “insolubly ambiguous,” suggesting either that he had not yet formulated his trumped-up story or that he simply chose to exercise the right of silence the police told him he had, the State’s proof of Marshall’s initial silence must be regarded not as probative in the sense first suggested, but as a penalty for the exercise of his constitutional right to be silent.

The standard to be applied in measuring whether a comment impinges upon the constitutionally guaranteed right to remain silent is expressed in our recent opinion of Kinchen v. State, 432 So.2d 586 (Fla. 4th DCA 1983). We apply that standard here and conclude that a transgression occurred. Thus, appellant is entitled to a new trial.

REVERSED and REMANDED for NEW TRIAL.

HERSEY, HURLEY and WALDEN, JJ., concur.


author: LEE, J. CAIL, Associate Judge.

text:
    Melinda M. GARY, Appellant/Cross Appellee, v. T. Jack GARY, III, Appellee/Cross Appellant.
    No. 82-1457.
    District Court of Appeal of Florida, Fourth District.
    Dec. 28, 1983.
    William H. Pruitt of Pruitt & Pruitt, West Palm Beach, for appellant/cross ap-pellee.
    Sidney A. Stubbs of Jones & Foster, P.A., West Palm Beach, for appellee/cross appellant.
   LEE, J. CAIL, Associate Judge.

This is an appeal and cross appeal from a final judgment of dissolution of marriage. The issues are those common to contested domestic relations cases involving relatively long term marriages, and are presented in five points, as raised by the appellant and responded to by appellee, as follows:

Point I Permanent periodic alimony
Point II Rehabilitative alimony
Point III Lump sum alimony
Point IV Child support
Point V Use and occupancy of marital domicile

The trial court’s resolution and disposition of Points IV and V appear to fall well within the exercise of sound judicial discretion, and accordingly, we affirm.

However, as to Points I, II and III, which may be dealt with together, we believe that the court’s determination constituted an abuse of discretion, and we therefore reverse. The wife/appellant contends, and we agree, that she is entitled to a greater amount of periodic alimony than that originally awarded by the trial court and that such award should be permanent, rather than rehabilitative. The record clearly reveals that the parties enjoyed a relatively high standard of living over a number of years. The husband/appellee earns, and for a considerable period of time past has earned, a substantial income. The professional training and experience, employment history and educational background of the wife/appellant are extremely limited as they relate to her earning capability. For these and other reasons disclosed by the evidence, we believe that the wife/appellant is not a proper subject for rehabilitative alimony; that the permanent alimony awarded to the wife is inconsistent with her prior standard of living, less than she realistically needs and also less than the husband/appellee is able to pay. In addition we believe the award of lump sum alimony should not be restricted to the husband’s bonus.

Accordingly, the final judgment herein appealed is modified as follows:

1. The award of rehabilitative alimony is vacated as of the date of this opinion.
2. The award of periodic alimony is increased to $2,000.00 per month as of the date of the opinion.
3. The award of lump sum alimony shall be paid at the rate of $15,000.00 per year until fully paid; it shall not be restricted to the husband’s annual bonus and it shall not terminate sooner in the event of the husband’s death.

DOWNEY and LETTS, JJ., concur.


author: GLICKSTEIN, Judge.

text:
    REBACK REALTY, INC., and Illustrated Properties, Appellants, v. Rosemarie KEARNS, et al., Appellees.
    No. 83-344.
    District Court of Appeal of Florida, Fourth District.
    Dec. 28, 1983.
    L. Louis Mrachek of Gunster, Yoakley, Criser & Stewart, P.A., Palm Beach, for appellants.
    Roger C. Lambert, North Palm Beach, for appellees.
   GLICKSTEIN, Judge.

This conscientious trial judge has appropriately reminded us in the final judgment of a fact about which we often need to be reminded; namely, that he considered the evidence, which was in conflict, and made determinations of the believability of the evidence he heard based upon the demean- or of the witnesses as well as their frankness and interest in the outcome. An able result having been crafted, we should not tamper with it. Accordingly, we affirm.

ANSTEAD, C.J., and WALDEN, J„ concur.


text:
    Larry D. WASHINGTON, Appellant, v. STATE of Florida, Appellee.
    No. 83-511.
    District Court of Appeal of Florida, Fourth District.
    Dec. 28, 1983.
    Richard L. Jorandby, Public Defender, and Anthony Calvello, Asst. Public Defender, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Lydia M. Valenti, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

Reversed and remanded with directions that the appellant be discharged on the authority of R.L.P. v. Korda, 380 So.2d 1329 (Fla. 4th DCA 1980).

ANSTEAD, C.J., and DOWNEY and DELL, JJ., concur.


author: LETTS, Judge.

text:
    AMERICAN FIRE & CASUALTY COMPANY, Appellant, v. Bernard W. BIGGER, Appellee.
    No. 83-664.
    District Court of Appeal of Florida, Fourth District.
    Dec. 28, 1983.
    James T. Walker of Brennan, McAliley, Hayskar, McAliley & Jefferson, P.A., Fort Pierce, for appellant.
    J. Michael Brennan of Brennan & Mus-chott, Fort Pierce, for appellee.
   LETTS, Judge.

The sole question before this court is whether the insured rejected higher uninsured motorist benefits (U.M.) under Section 627.727(1), Florida Statutes (Supp. 1976). The trial judge held he did not. We disagree and reverse.

In 1965, the insurance company issued an automobile policy to the insured under which the latter obtained bodily injury limits of $300,000. In 1973, Section 627.727, Florida Statutes, was enacted to provide that, absent a rejection, all insurance policies must furnish U.M. coverage with limits no less than the liability limits under the policy. Because of this change, by operation of law, the insured was sent a form notifying him of it and requesting him to specify the limits of U.M. coverage. Upon discussing this notification with his insurance agent, the insured decided not to include U.M. coverage equal to the amount of his bodily injury limit and in 1974 signed a rejection of coverage form and elected minimum policy limits for U.M. coverage of $10,000 per person and $20,000 per accident.

In 1975, Section 324.021(7), Florida Statutes (1975), mandated that U.M. limits must be increased to at least $15,000 per person and $30,000 per accident. Pursuant to that statutory change, the insured’s coverage was automatically increased, but the insurance company did not, at that time, require the insured to execute a new rejection form as to U.M. coverage. Nevertheless each year thereafter, the company or its agent sent out forms to the insured fully explaining how to acquire and extend U.M. coverage and defining his right to increase it. Despite these many notices, the insured did not seek to change the amount of coverage.

In 1981, the insured was involved in an automobile accident and made a claim for uninsured motorist benefits. The company argued that he was only entitled to U.M. coverage of 15/30 — the amount specified in the policy. Not surprisingly, the insured maintained that he was entitled to U.M. coverage equivalent to the bodily injury limits because the company failed to send a written rejection of uninsured motorist coverage in 1975, when it was required to amend the policy by operation of law. The trial court determined that the insured was entitled to U.M. coverage in the amount of $300,000 rather than $15,000/$30,000. We disagree.

Only last week, our Supreme Court in American Fire & Indemnity Co. v. Spaulding, 442 So.2d 206 (Fla.1983), held that where an insured is aware of his right to obtain uninsured motorist coverage equal in amount to liability coverage, and decides to maintain his uninsured motorist coverage at the lower limits, the insurance company does not have to offer such coverage at the exact moment of change in the policy. Thus, despite the absence here of an express offer by the company at the moment of the policy change, the insured was obviously aware of the right to higher U.M. coverage because of the repeated notices to that effect and Spaulding specifically holds that such awareness constitutes an election to continue the lower coverage limit.

Accordingly, we reverse and remand in accordance herewith.

BERANEK and HERSEY, JJ., concur.


text:
    Robert A. LIST, Appellant, v. Barbara HAYWOOD, Appellee.
    No. 83-762.
    District Court of Appeal of Florida, Fourth District.
    Dec. 28, 1983.
    Carol C. Monaco of G. Russell Peterson, P.A., Vero Beach, for appellant.
    David A. Cairns of Samuel A. Block, P.A., Vero Beach, for appellee.
   PER CURIAM.

AFFIRMED. See Applegate v. Barnett Bank of Tallahassee, 377 So.2d 1150 (Fla.1979).

ANSTEAD, C.J., and DOWNEY and DELL, JJ., concur.


text:
    George CHRISTOPHER, Appellant, v. Arthur LEVINE, David Seller, Syd Goldsmith, Sadie Shulman, Claire Langfelder, Mike Planer, Sam Fox, and Harwood E. Condominium Association, Inc., Appellees.
    No. 83-770.
    District Court of Appeal of Florida, Fourth District.
    Dec. 28, 1983.
    John B. McCracken of Jones & Foster, P.A., West Palm Beach, for appellant.
    Peter S. Sachs of Sachs & Weiss, P.A., Boca Raton, for appellees.
   PER CURIAM.

We sua sponte dismiss the appeal of the order which dismissed Count II of the “Third Party Complaint” with prejudice. We do so, however, without prejudice to the plaintiff to raise the same issues on plenary appeal after final judgment as to Count I. See Fischer v. Trafalgar Towers Association #2, Inc., 372 So.2d 528 (Fla. 4th DCA 1979).

ANSTEAD, C.J., and GLICKSTEIN and WALDEN, JJ., concur.


author: DOWNEY, Judge.

text:
    Virginia Gail HINTON f/k/a Virginia Gail Reynolds, Appellant, v. Roger Phillip REYNOLDS, Appellee.
    No. 83-772.
    District Court of Appeal of Florida, Fourth District.
    Dec. 28, 1983.

      Gerald Lefebvre of Law Office of Gerald Lefebvre, Okeechobee, for appellant.
    No appearance on behalf of appellee.
   DOWNEY, Judge.

The circuit court dissolved the marriage of the parties in March 1978, and they agreed in October 1978 that the father would make child support payments of $100 per month. The court approved that agreement in an order dated October 26, 1978.

In October 1982 the mother filed a motion asking the court to enforce the order of October 26, 1978, alleging the father was in arrears in the amount of $4,700. At a hearing on that motion the mother admitted that shortly after the entry of the judgment of dissolution she had cashed a check in the amount of $6,087.20 that had been made payable to the joint order of the parties. The circuit court implicitly found the father was in arrears the $4,700 but felt that the mother’s cashing of the check was unauthorized, and so the court credited the father with the face amount of the check as a set-off on his child support payments, and the mother appealed.

As unpaid child support payments accrue they constitute a vested right not subject to modifications absent extraordinary facts justifying refusal to require the defaulting party to pay past due installments. Patterson v. Patterson, 348 So.2d 592 (Fla. 1st DCA 1977). Depending upon the circumstances, payments made for the benefit of the children may constitute a credit or set-off. However, in the present case, the father made no payments; rather, the mother apparently made unauthorized use of some of the father’s funds that were in her possession. Because he did not make child support payments when they were due, he was not entitled to a set-off for the mother’s unauthorized use of his funds. Child support payments are for the benefit of the child, and a custodial parent’s conduct does not estop that parent from enforcing the rights of the child. Dept. of Health & Rehab. Services v. Walker, 411 So.2d 347 (Fla. 2d DCA 1982).

The husband was not represented by counsel in the hearings below and no inquiry was ever made as to whether the wife had actually used all or part of the funds in question for support of the children. Had she done so there might well be demonstrated an equitable basis for some set-off or credit for the husband on his child support obligation.

Accordingly, it appears to us that in the interest of justice further inquiry should be made regarding the use of the $6,087.20 Social Security check so as to more equitably allocate the burden of the unpaid child support. Furthermore, some recognition should be made of the fact that all of the funds represented by the Social Security check did not belong to the husband.

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

REVERSED AND REMANDED with directions.

ANSTEAD, C.J., and DELL, J., concur.


text:
    Joel CHAIT and Paul Aronsky, et al., Appellants, v. CITY OF HOLLYWOOD, Appellee.
    No. 83-919.
    District Court of Appeal of Florida, Fourth District.
    Dec. 28, 1983.
    Alan S. Becker of Becker, Poliakoff & Streitfeld, P.A., Fort Lauderdale, for appellants.
    Andrew DeGraffenreidt III, Deputy City Atty., and Nancy A. Cousins, City Atty., Hollywood, for appellee.
   PER CURIAM.

By a class action complaint for injunctive and declaratory relief, appellants sought, to prevent the City from constructing a public parking lot on property situated between appellants’ condominium and the ocean. The property in question was conveyed to the City as part of a stipulation settling litigation between a predecessor developer and the City. Under the stipulation, the predecessor developer was to build a road on said property within a specified time. However, that time has come and gone and no road was ever built. The trial judge granted appellee a judgment on the pleadings; we think rightly so.

Appellants contended in their complaint that the City was equitably estopped to construct the parking lot because it was aware of misleading statements in the developer’s promotional advertising, which indicated to prospective purchasers that the condominium had an unobstructed view of the ocean. We reject this suggestion of estoppel and hold that the municipality in these circumstances had no duty to monitor the advertising and selling practices of developers of condominiums. The law provides adequate remedies for fraud and misrepresentation in the sale of such property.

Having fully considered all of appellants’ contentions, we find no reversible error demonstrated. Consequently, the judgment appealed from is affirmed.

AFFIRMED.

ANSTEAD, C.J., and DOWNEY and DELL, JJ., concur.


text:
    Larry ORR a/k/a Leon Ricky Bell, Appellant, v. BROWARD COUNTY SHERIFF’S DEPARTMENT and Former Sheriff Robert Butterworth, Appellees.
    No. 83-1044.
    District Court of Appeal of Florida, Fourth District.
    Dec. 28, 1983.
    Larry Orr a/k/a Leon Ricky Bell, Starke, pro se appellant.
    No appearances on behalf of appellees.
   PER CURIAM.

Reversed and remanded for further proceedings on the merits. We believe the existence in the record of an order of the circuit court of March 11, 1982 directing the Sheriffs Department to return appellant’s property precluded the entry of summary judgment in favor of the Sheriff’s Department on the present claim of the appellant for the return of the same property. The appellant should also be given an opportunity for meaningful participation in any further proceedings. Cf. Payne v. Superior Court of Los Angeles County, 17 Cal.3d 908, 132 Cal.Rptr. 405, 553 P.2d 565 (1976).

ANSTEAD, C.J., and DOWNEY and DELL, JJ., concur.


text:
    Rhoda M. SHEPPARD, Appellant, v. STATE of Florida, DEPARTMENT OF LABOR AND EMPLOYMENT SECURITY, and Unemployment Appeals Commission, Appellees.
    No. 83-1035.
    District Court of Appeal of Florida, Fourth District.
    Dec. 28, 1983.

      Mary Anne Robertson, Legal Aid Service of Broward County, Inc., Fort Lauderdale, for appellant.
    John D. Maher, Tallahassee, for appel-lees.
   GLICKSTEIN, Judge.

This is an appeal from an order of the Unemployment Appeals Commission, which affirmed the decision of the appeals referee. We affirm.

Appellant was originally awarded unemployment benefits and received them during the employer’s appeal. By the time her award was reversed by the commission, she had received $949.00. A claims adjudicator subsequently made a determination, charging her with an overpayment in that amount. It was the latter determination which the appeals referee and commission affirmed in due course, prompting the present appeal.

The applicable statutory section is 443.-151(6), Florida Statutes (1981) which provides:

(6) RECOVERY AND RECOUPMENT.—
(a) Any person who, by reason of his fraud, has received any sum as benefits under this chapter to which he was not entitled shall be liable to repay such sum to the division for and on behalf of the trust fund or, in the discretion of the division, to have such sum deducted from future benefits payable to him under this chapter, provided a finding of the existence of such fraud has been made by a redetermination or decision pursuant to this section within 2 years from the commission of such fraud, and provided no such recovery or recoupment of such sum may be effected after 5 years from the date of such redetermination or decision.
(b) If any person, other than by reason of his fraud, has received any sum as benefits under this chapter to which, under a redetermination or decision pursuant to this section, he has been found not entitled, he shall be liable to repay such sum to the division for and on behalf of the trust fund or, in the discretion of the division, shall have such sum deducted from any future benefits payable to him under this chapter. No such recovery or recoupment of such sum may be effected after 2 years from the date of such rede-termination or decision.
(c) No recoupment from future benefits shall be had if such sum was received by such person without fault on his part and such recoupment would defeat the purpose of this chapter or would be against equity and good conscience.
(d) In any case in which under this section a claimant is liable to repay to the division any sum for the fund, such sum shall be collectible without interest by a deduction from benefits pursuant to a redetermination as above provided or by civil action in the name of the division.

Claimant makes two arguments. The first is that the statute is unconstitutional or preempted by federal law. We disagree and do not perceive the necessity of reviewing the briefs’ contents in light of our rejection of appellant’s contentions. The second is that subsection (b) of the above statute compelled consideration of equity and good conscience before requiring repayment by appellant. We disagree with that argument as well, but wish to discuss it because our view expressly conflicts with that of the Third District Court of Appeal in Sagaert v. State of Florida, Department of Labor and Employment Security Unemployment Appeals Commission, 418 So.2d 1228 (Fla. 3d DCA 1982). The court in Sagaert interpreted (b) to include defenses contained in (c), holding:

Section 443.151(6)(c), supra, provides that in the case of a non-fraudulently-obtained overpayment, “[n]o recoupment from future benefits shall be had if such sum was received by such person without fault on his part and such recoupment would defeat the purpose of this chapter or would be against equity and good conscience.” This provision must be read to apply to recovery by repayment as well as by recoupment from future benefits. Recoupment and repayment are the statutorily-authorized methods by which the Division corrects overpayment errors where no fraud has been committed by the claimant. We can discern no logical reason for granting the Section 443.151(6)(c), supra, defenses of statutory purpose and equity and good conscience to someone who will still be receiving benefits, while withholding these defenses from someone whose benefits are terminated and who is required to repay sums to the Division. A statute will not be interpreted to achieve an illogical or absurd result. McKibben v. Mallory, 293 So.2d 48 (Fla.1974); Good Samaritan Hospital Association v. Simon, 370 So.2d 1174 (Fla. 4th DCA 1979).

418 So.2d at 1230 (footnote omitted).

• We respectfully believe the foregoing interpretation is an inappropriate invasion by the judiciary into the legislative arena, contrary to the constitutional mandate which separates the two respective governmental powers. The language in (b) does not compel the division to exercise its discretion by seeking recoupment rather than repayment. It plainly enables the division to proceed with efforts to effect repayment, or, in the alternative, deduct sums already received from future benefits which may become available. In this case the division sought repayment. Had it opted for re-coupment, we could see more easily the applicability of the defenses in (c) to the exercise of the division’s discretion. Repayment is harsh on this economically distressed appellant whose alcoholism occasioned her discharge. However, assuming the correctness of the determination of misconduct, as we must for the present appeal, benefits improperly received by one individual would obviously make those funds unavailable to one legally entitled to same. The public pockets are not endlessly deep and without the omnipresent standard of propriety of payment and similarly watchful implementation of that standard, the entire system must ultimately fail.

WALDEN, J., and DAUKSCH, JAMES C., Jr., Associate Judge, concur.


author: BERANEK, Judge.

text:
    Patricia FRAZIER, Appellant, v. William H. FRAZIER, Appellee.
    No. 83-1433.
    District Court of Appeal of Florida, Fourth District.
    Dec. 28, 1983.

      Lawrence A. Barkett of Gould, Cooksey, Fennell, Appleby, Barkett & O’Neill, P.A., Yero Beach, for appellant.
    Charles A. Sullivan of Sullivan, Cobb, Sullivan & LaJoie, Vero Beach, for appel-lee.
   BERANEK, Judge.

This is an appeal from a non-final order relating to jurisdiction over the person of appellant. Appellant and appellee were formerly married and resided in the State of Connecticut. Appellant secured two money judgments in Connecticut against appellee who subsequently moved to the State of Florida. Appellant filed suit in Florida to enforce the Connecticut judgments, and appellee counterclaimed and filed a separate action asserting the existence of a previous divorce judgment between the same parties. Appellee sought to establish the foreign divorce judgment in the State of Florida and to modify it by eliminating the requirements that he support his minor children and pay alimony. Appellee admitted that he had not been supporting his children. Appellant moved to dismiss asserting that the court lacked jurisdiction over her and her children to determine issues of alimony and support. The trial court denied the motion to dismiss. We reverse.

When the appellant filed suit in Florida to enforce the foreign money judgments, she did not subject herself to the jurisdiction of the Florida courts for the purpose of litigating issues of future alimony and child support. If the appellee wishes to terminate his alimony and child support obligations, he must do so where he can acquire personal jurisdiction in an appropriate forum. This is clearly in the State of Connecticut rather than Florida. Although not specifically applicable, we conclude that Section 61.1316, Florida Statutes (1981), is instructive. The trial court erred in denying the motion to dismiss based on jurisdictional grounds.

REVERSED AND REMANDED FOR FURTHER PROCEEDINGS CONSISTENT HEREWITH.

HERSEY, J., concurs.

ANSTEAD, C.J., dissents without opinion.


text:
    Wayne B. WOODWARD, Appellant, v. Mary K. WOODWARD, Appellee.
    No. 83-1687.
    District Court of Appeal of Florida, Fourth District.
    Dec. 28, 1983.

      Joel L. Kirschbaum of Esler & Kirsch-baum, P.A., Fort Lauderdale, for appellant.
    Alan W. Kaback, Coral Springs, for ap-pellee.
   PER CURIAM.

AFFIRMED. See Faircloth v. Faircloth, 339 So.2d 650 (Fla.1976).

HERSEY, GLICKSTEIN and HURLEY, JJ., concur.


text:
    Wayne B. WOODWARD, Petitioner, v. Mary K. WOODWARD, Respondent.
    No. 83-1860.
    District Court of Appeal of Florida, Fourth District.
    Dec. 28, 1983.
    Joel L. Kirschbaum of Esler & Kirsch-baum, P.A., Fort Lauderdale, for petitioner.
    Alan W. Kaback, Coral Springs, for respondent.
   GLICKSTEIN, Judge.

We have issued today an opinion in another case involving these matters, Woodward v. Woodward, 442 So.2d 1117 (Fla. 4th DCA 1983), wherein we affirmed the trial court’s adjudication of contempt on the part of the former husband because of his non-payment of rehabilitative alimony. In the present case the former husband seeks relief by certiorari from the following portion of the trial court’s order in the pending post-judgment proceeding for modification initiated by the former husband:

Respondent/Husband shall pay Petitioner/Wife’s attorney a fee of $500.00 as a condition precedent to Petitioner/Wife being required to reply to the Respondent/Husband’s Request to Produce, based upon a review of the Court file which reveals the Husband’s Complaint/Supplemental Complaint for Modification filed on or about May 27, 1983 was filed by Respondent/Husband with “unclean hands” because of the numerous Motions For Contempt filed by Petitioner/Wife against Respondent/Husband for non-payment of alimony subsequent to the Final Judgment of Dissolution of Marriage entered June 11, 1981, and the General Master’s Reports and the Court Orders concerning those Motions For Contempt.

We have often denied certiorari when some discovery has been prevented and granted it when permitted. However, in the present case we have discovery of the former wife’s documents being permitted, but on a condition relating to matters extraneous to the modification proceeding; namely, the discoverer’s misconduct in not paying the rehabilitative alimony required by the final judgment which he now seeks to have modified. The choice, then, is whether or not to extend our general rule of thumb by denying certiorari where the trial court uses the above condition to effectively prevent all discovery because of the earlier misconduct. Respondent has not provided this court with any authority derived from the Florida Rules of Civil Procedure which supports the trial court’s order. We are genuinely empathetic to the trial judge’s concern with petitioner’s misconduct, as witnessed by our affirmance of the sobering order in the companion case. Nevertheless, the use of attorneys’ fees as a club must be carefully scrutinized. Bearing in mind that the legislature has never said that in every legal action, the loser shall pay the winner’s attorneys’ fees; and that the judiciary has often expressed that such fees are awardable in certain, defined situations, we have an overview of the subject matter. This court has been particularly sensitive to interlocutory orders in modification proceedings that could ultimately be inconsistent with the ultimate decision on the merits or could cause unnecessary and unforeseen difficulties pen-dente lite. Saulnier v. Saulnier, 425 So.2d 558 (Fla. 4th DCA 1982). Accordingly, we think certiorari is both appropriate under the two prong test and necessary in this case. We grant the relief sought by the petition and quash the quoted portion of the trial court’s order.

HERSEY and WALDEN, JJ., concur.


text:
    Henry Lee DIXON, Appellant, v. STATE of Florida, Appellee.
    No. 83-2596.
    District Court of Appeal of Florida, Fourth District.
    Dec. 28, 1983.
    Henry Lee Dixon in pro. per.
    No appearance required of appellee.
   PER CURIAM.

Appellant filed a motion for post-conviction relief pursuant to Florida Rule of Criminal Procedure 3.850, essentially contending that he pled guilty without knowledge of the consequences thereof, ineffective assistance of counsel and illegal sentence. The trial court denied said motion without stating the grounds for such denial. No portion of any file or record was attached which conclusively showed appellant was not entitled to any relief. Cookish v. State, 416 So.2d 53 (Fla. 4th DCA 1982). Accordingly, the order appealed from is reversed and the cause is remanded with directions to attach the portions of the record that demonstrate appellant is not entitled to any relief or grant appellant an evidentiary hearing.

REVERSED AND REMANDED with directions.

DOWNEY, HERSEY and DELL, JJ., concur.


text:
    HIALEAH, INC., Petitioner, v. STATE of Florida DEPARTMENT OF BUSINESS REGULATION, DIVISION OF PARI-MUTUEL WAGERING, State of Florida Department of Business Regulation, Florida Pari-Mutuel Commission, and Gulfstream Park Racing Association, Inc., Respondents.
    No. 83-3003.
    District Court of Appeal of Florida, Third District.
    Dec. 29, 1983.
    Steel, Hector & Davis and Joseph P. Klock, Jr., Miami, for petitioner.
    Robert Smith and Elliott H. Henslovitz, Miami, Stephen Abramson, Miami, Lande-feld & Romanik, David S. Romanik, Hollywood, Carlton, Fields, Ward, Emmanuel, Smith & Cutler, P.A., Alan C. Sundberg, Tallahassee, for respondents.
    Before SCHWARTZ, C.J., and DANIEL S. PEARSON, and FERGUSON, JJ.
   PER CURIAM.

The petition for writ of mandamus is treated as one seeking review, Section 120.-68(1), Florida Statutes (1981), of the final decision of the Florida Pari-Mutuel Commission. Fla.R.App.P. 9.040(c).

In our view, based upon the briefs and oral presentations before us, and as specifically reflected by the findings and conclusions contained in the order under review, there has been no demonstration of the “strong and compelling reasons” required to justify a departure from the rule of rotation which we deem to remain a part of the pertinent law of Florida. Hialeah Race Course, Inc. v. Board of Business Regulation, 270 So.2d 366, 372 (Fla.1972) (Ervin, J., specially concurring); Gulfstream Park Racing Assn., Inc. v. Board of Business Regulation, 318 So.2d 458 (Fla. 1st DCA 1975); Gulfstream Park Racing Assn., Inc. v. Division of Pari Mutuel Wagering, Department of Business Regulation, 404 So.2d 1119 (Fla. 4th DCA 1981). We therefore reverse the order and direct the Commission to issue a license to Hialeah to operate the middle racing dates in question. § 120.68(13)(a)l, Fla.Stat. (1981); Hialeah Race Course, Inc. v. Board of Business Regulation, supra, at 270 So.2d 371.

Pursuant to Art. V, Sec. 3(b)(4), Florida Constitution, we certify to the Supreme Court of Florida that this decision passes upon questions of great public importance concerning the standards applicable to the award of racing dates in Florida, including the viability and application of the “rotation rule” in making that determination.

No motion for rehearing will be considered.


text:
    Derek LIDDLE and A.S. Liddle, his wife, Appellants, v. George M. SHERBO and Paul Sherbo, his wife, Appellees.
    No. 83-1203.
    Circuit Court of Appeal of Florida, Third District.
    Dec. 20, 1983.
    Abney, Diliberto, Sibley & Guttieres and Charles J. Sibley, Miami, for appellants.
    George, Hartz, Burt & Lundeen and Clinton D. Flagg, Miami, for appellees.
    Before HUBBART, FERGUSON and JORGENSON, JJ.
   PER CURIAM.

Affirmed. See Ten Associates v. McCutchen, 398 So.2d 860 (Fla. 3d DCA 1981), review denied mem., 411 So.2d 384 (Fla. 1981); Whelan v. Dacoma Enterprises, 394 So.2d 506 (Fla. 5th DCA 1981).


text:
    STATE of Louisiana v. Virginia FOAT.
    No. 83-KK-1947.
    Supreme Court of Louisiana.
    Sept. 15, 1983.
   In Re: VIRGINIA FOAT, applying for Supervisory and Remedial writ and STAY ORDER to the Fifth Circuit Court of Appeal, Number 83-K-568, Parish of Jefferson; 24th Judicial District Court, Number 83-169

Granted and remanded to the Court of Appeal for expedited argument and opinion on the merits. A pre-trial application for supervisory writs, which presents, on a complete record developed at a well-tried hearing, a serious, potentially meritorious issue that may be dispositive of the case, should be entertained on the merits. We have not followed the federal policy against review of pre-trial rulings in criminal cases expressed in United States v. MacDonald, 435 U.S. 850, 98 S.Ct. 1547, 56 L.Ed.2d 18 (1978) and relied on by the Court of Appeal herein. Rather, prompted by a desire to bring criminal cases to a conclusion as expeditiously as possible, this Court has adopted a policy favoring the exercise of supervisory jurisdiction and interlocutory appellate review of pre-trial rulings on issues which may be dispositive of the case. This procedure promotes the fair, prompt and efficient administration of justice. For a case indicative of this Court’s policy, see State v. Nowell, 363 So.2d 523 (La.1978).


author:
CALOGERO, J., DENNIS, J.,
      WATSON, Justice,

text:
    STATE of Louisiana v. Virginia FOAT.
    No. 83-KK-2041.
    Supreme Court of Louisiana.
    Sept. 30, 1983.
   In re: Virginia Foat applying for Supervisory and Remedial Writs and Stay Order. Parish of Jefferson, 24th Judicial District Court No. 83-169; Court of Appeal, Fifth Circuit No. 83-K-568

Denied.

CALOGERO, J.,

would grant this writ, docket the case for briefing and oral argument and decide this issue finally at this time.

DENNIS, J.,

would grant the writ and set the case for argument and an opinion by this Court. By simply denying the writ the majority neither approves nor disapproves of the court of appeal’s judgment. The question of whether the delay was constitutionally unacceptable is a close one which is ripe for decision and should be resolved by this Court.

WATSON, J., dissents and assigns reasons. (attached)

WATSON, Justice,

dissenting.

I would grant the writ to decide pre-trial the question of whether defendant, Virginia Foat, has been denied her constitutional right to a speedy trial.

This constitutional guarantee is one of the most fundamental, being found not only in the Sixth Amendment to the Constitution of the United States (“the accused shall enjoy the right to a speedy and public trial”), but also in our state Constitution of 1974 (“every person charged with a crime is presumed innocent until proven guilty and is entitled to a speedy, public and impartial trial”). In fact, this principle has been embeddied in the law of Louisiana since the Constitution of 1812 which provided at Art. 6, § 18 as follows:

“§ 18. In all criminal prosecutions, the accused have the right of being heard by himself or counsel, of demanding the nature and cause of the accusation against him, of meeting the witnesses face to face, of having compulsory process for obtaining witnesses in his favour, and prosecutions by indictment or information, a speedy public trial by an impartial jury of the vicinage, nor shall he be compelled to give evidence against himself.”

There are many reasons for this basic precept of American law; obviously, with the passage of time, witnesses die, they disappear, and their memories dim. In the present case, a contention is made that the passage of time has seriously prejudiced defendant’s ability to present her case. I do not know whether this is right or wrong. No member of this court, in my opinion, knows whether this is right or wrong. And the only way to find out is to grant the writ, bring up the record already made in the trial court, and decide the issue.

However, I strongly suggest that the basic facts, namely that the alleged murder is supposed to have occurred in 1965, some eighteen years ago and that the arrest warrant charging Virginia Foat with the 1965 murder was issued on March 28, 1977, over six years ago, go á considerable distance toward making a showing that the defendant’s right to speedy trial has been prejudiced. The time factor, coupled with the admission by the state that there is really no reason for six years of delay, makes a prima facie showing which cries out for a writ grant to consider the question pre-trial.

Counsel for defendant asks, incisively, if it is difficult for the state to account for what happened in 1977, how much more difficult is it for the defendant to defend against the charge of a crime which may or may not have occurred in 1965?

In a case involving merely the possession of one marijuana cigarette, this court rejected the notion of not considering 'pretrial the question denial of a speedy trial:

“The state contends that a defendant may not raise his denial of speedy trial claim by a motion to quash. We disagree. An accused must be afforded a remedy by which he may effectively assert his fundamental right guaranteed by the Due Process Clause of the Fourteenth Amendment, the Louisiana Constitution, and our Code of Criminal Procedure. See Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972); La. Const.1074, art. 1, § 16; La.C.Cr.P. art. 701. The legislature has not specifically provided a method for raising speedy trial violations, but it has instituted the motion to quash, an all embracive plea, whereby an accused may urge all pleas or defenses to be raised before trial, other than those relating on the merits of the charge. La.C.Cr.P. art. 531, and Official Revision Comment; State v. Rembert, 312 So.2d 282 (La.1975); State v. Patterson, 301 So.2d 604 (La.1974). A speedy trial claim logically falls within this category because it is a defense which, if successful, requires dismissal of the indictment regardless of the merits of the charge, Barker, supra, and which by its nature must be available before trial_” State v. Reaves, 376 So.2d 136 at 137-138 (La., 1979).

It is not important that Reaves suffered only a brief delay and that his charge was dismissed; what is important is the recognition of the right to pre-trial consideration of the speedy trial issue. Cf. State ex rel Miller v. Craft, 337 So.2d 1191 (La., 1976); and State v. Nowell, 363 So.2d 523 (La., 1978).

There is small doubt that the speedy trial issue in Virginia Foat’s case is close. Why should the state be put to the expense of expending thousands of dollars, bringing witnesses from all over the country, consuming prosecutorial and judicial time and otherwise slowing the wheels of justice in many other cases if the motion to quash has merit? Why should the defendant be put through the expense and agony of defending a murder charge if the motion has merit? It is in the interest of the state (and by the state I mean the people of Louisiana and even the people of the United States because of the notoriety of this case), as well as the defendant, to put the speedy trial issue to rest now, one way or the other.

If the motion does not have merit, this court should so declare and not be faced with the task of possibly facing this serious constitutional issue post-trial when the focus of appellate review, if the defendant is convicted, should be on the issue of whether she received a fair and impartial trial.

I respectfully suggest that we are doing an injustice to both the state and the defendant by declining to grant the writ application and make the decision. We required the Court of Appeal to address the issue, 442 So.2d 1122. Merely on the bare-bone facts of the ease, this court should bite the bullet and do its duty.

The writ should be granted.

      . The state is to be complimented on its candor, writing in a brief:
      “The passage of time: the verbal communications that took place almost exclusively in this matter rather than any written confirmation of decisions; changes in personnel both at the sheriffs office and the district attorney’s office; all these factors make it extremely difficult for the state to pinpoint a specific reason or specific reasons for deciding not to move forward with prosecution in November of 1977." State v. Foat, 442 So.2d 1146 at 1150 (La.App. 5 Cir.1983).


author: MARCUS, Justice.

text:
    LOUISIANA TANK, et al. v. LOUISIANA PUBLIC SERVICE COMMISSION and Well-Vac, Inc.
    No. 83-CA-0914.
    Supreme Court of Louisiana.
    Nov. 28, 1983.

      Harold R. Ainsworth, New Orleans, Janet Boles Chambers, Boles & Mounger, Baton Rouge, for plaintiff-appellee.
    Marshall B. Brinkley, Baton Rouge, for defendant-appellee.
    Burton P. Guidry, Baton Rouge, for in-tervenor-appellant.
   MARCUS, Justice.

This case involves the Louisiana Public Service Commission’s grant of a certificate of public convenience and necessity to Well-Vac, Inc., conferring statewide authority as a common carrier to transport certain special commodities over irregular routes.

An application for the aforesaid certificate was filed by Well-Vac with the Commission on April 8, 1981. As amended on April 22, 1981, the application sought a common carrier of special commodities certificate authorizing transportation “by vacuum truck of any and all commodities used in, produced or demanded by industrial operations, oil and gas field operations, and marine and pipeline operations, specifically including any waste products, from, to and between all points in the State of Louisiana.” After publication of notice of hearing by the Commission, an opposition and protest was filed by the Vacuum Truck Carriers of Louisiana, its individual member carriers, and certain non-member carriers. A hearing was held before Commissioner Thomas E. Powell and Examiner James W. Henderson on September 1,1981. Subsequent to this hearing, application was considered at an open session of the full Commission held September 21, 1981. The Commission, by a 3-2 vote with Commissioners Powell and George J. Ackel dissenting, found that in view of the evidence present in the record, “the public convenience and necessity require, and would be materially promoted by the granting of the authority sought.” Accordingly, by order dated September 30, 1981, the application was approved conditioned upon the grantee’s compliance with the “laws and rules and regulations of the Commission bearing thereon.” Commissioner Powell, in his written reasons for dissenting, stated:

I respectfully dissent because there is no evidence whatsoever in the record to prove that the public convenience and necessity would be served by the grant of this authority. The two witnesses testifying in support of applicant who utilize vacuum truck common carriers confirmed that adequate service is provided by the several authorized carriers domiciled in the area and the third witness is a lease operator to a regulated motor carrier who had only hearsay testimony. To the contrary, the 13 authorized carriers appearing in opposition expressed concern over the lack of business with some carriers realizing only 20% to 25% utilization of equipment.
Additionally, there was no testimony at all in support of transportation of industrial waste.

After the order became effective, Louisiana Tank, Inc. and eleven other vacuum truck carriers with certificates of authority from the Commission filed a petition in the district court pursuant to La.R.S. 45:1192 setting forth their cause of objection to the order of the Commission. The petition alleged that the decision of the Commission was arbitrary and capricious and that no showing was made that the public convenience and necessity would be materially promoted by the granting of the certificate. The Commission answered generally denying the allegations of the petition. Well-Vac intervened uniting with the Commission in resisting Louisiana Tank’s action. After a pre-trial conference on July 7,1982, Judge Doherty complied with a request by Well-Vac and remanded the matter to the Commission to take additional evidence. Pursuant to this order, a second hearing ' was held before Examiner Henderson alone on September 1, 1982. By order dated November 12, 1982, the Commission found no evidence was introduced at the second hearing that would alter its initial order of September 30, 1981. Accordingly, over the dissents of Commissioners Powell and Ack-el, the Commission’s original order was affirmed.

The matter was again brought before Judge Doherty who, after considering all of the testimony adduced at both hearings, reversed the orders of the Commission. According to the court, “the evidence produced before the Commission ... is wholly inadequate to justify the issuance of a certificate to the applicant.” The Commission and Well-Vac appealed to this court pursuant to La. Const, art. 4, § 21(E).

On appeal to this court, Well-Vac’s primary contention is that the district court erred in holding that there was insufficient evidence to support the Commission’s finding that the public convenience and necessity would be materially promoted by the granting of the certificate sought by Well-Vac.

La.R.S. 45:164 provides in pertinent part: No motor carrier shall operate as a common carrier without first having obtained from the commission a certificate of pub-lie convenience and necessity, which shall be issued only after a written application made and filed, a public hearing, due notice given to applicant and all competing common carriers, and a finding by the commission that public convenience and necessity require the issuance of a certificate. No new or additional certificate shall be granted over a route where there is an existing certificate, unless it be clearly shown that the public convenience and necessity would be materially promoted thereby.

The principles are well settled for judicial review of Commission orders granting certificates of public convenience and necessity under this provision. The applicant has the burden of clearly showing that the public convenience and necessity would be materially promoted by the issuance of a certificate to it. The orders of the Commission and of other administrative bodies exercising discretionary authority are accorded great weight and will not be overturned in the absence of a showing that the administrative action is arbitrary and capricious. Upon judicial review, a court will not upset Commission orders unless, after looking at the evidence, it concludes that the Commission could not have reasonably concluded that the applicant has “clearly shown that the public convenience and necessity would be materially promoted” and that the Commission’s action was therefore arbitrary and capricious. Florane v. Louisiana Public Service Commission, 433 So.2d 120 (La.1983); Dreher Contracting & Equipment Rental, Inc. v. Louisiana Public Service Commission, 396 So.2d 1265 (La.1981).

The record reflects that, at the original hearing on September 1, 1981, Well-Vac presented the testimony of three supporting witnesses. The first was Mr. Robert Cornell, the secretary/treasurer of Drew Cornell, Inc., a Lafayette-based independent producer and consultant in the oil and gas industry. Mr. Cornell testified that Drew Cornell regularly requires the services of vacuum trucks to transport salt water and drilling mud in the southwest Louisiana area. He stated that, although he is not personally responsible for obtaining transportation during normal operations, he does acquire vacuum trucks on an emergency basis. The certified vacuum truck services with which Mr. Cornell was familiar are Holston, Guillory and Pru-dhomme. • He testified that he did not know whether Drew Cornell had utilized any of the other carriers. When asked if the carriers with whom Drew Cornell dealt had provided adequate service, Mr. Cornell’s response was, “Yes.” His testimony about alleged service failures consisted merely of vague references to difficulty obtaining a truck “from time to time.” He was unable to provide documentary evidence of these failures or give specific instances or dates.

Well-Vac’s second supporting witness was Mr. Carl Martin, a production foreman employed by Conoco, Inc. He testified that he was responsible for securing vacuum trucks for use in the southwest Louisiana area to haul salt water and work over fluids such as mud. When asked to name the carriers he had used, he named approximately seven certified vacuum truck services. As Mr. Cornell had done previously, Mr. Martin testified that the carriers he had been using have been providing completely adequate service. When asked on direct examination if he knew of any “specific service failures that you have had, or problems when you couldn’t acquire any trucks,” he responded, “None that I can document.”

The final witness in support of the application was Mr. Larry Gautreau of Larry’s Trucking Service, Inc. Mr. Gautreau stated that he does not “have anything to do with the vacuum truck business.” He later qualified this statement by adding that he frequently refers people to vacuum truck services, but he is not personally involved in utilizing or soliciting these services. Mr. Gautreau then described several instances in which he had been told that the vacuum carriers to whom he had referred customers could not provide service. This testimony was only on a proffer because Commissioner Powell ruled that it was inadmissible hearsay testimony. Additionally, it should be noted that his contract carrier authority from the Commission had been suspended for about two years and he had been fined $20,000 for violations of Commission rules.

In protest to the application, thirteen certified vacuum truck carriers were present and testified through authorized representatives against Well-Vac’s application. All of these witnesses stated that they needed more business; in fact, most of the carriers were operating below 50% utilization. The testimony was unanimous that either the carriers have never had any problems handling the business tendered to them or, if there was a temporary shortage of trucks when a customer needed one quickly, service has always been immediately provided by a competitor after referral from the original carrier. Seven of the carriers had provided service for Conoco and four had worked for Drew Cornell; none had received complaints about their service and all expressed a desire to do further business with Conoco and Drew Cornell.

At the second hearing before Examiner Henderson, Well-Vac offered the testimony of two additional supporting shippers. The first was Ivan West, president of Harris Well Service, Inc. of Eunice. Mr. West testified at the first hearing as a representative of the applicant because, at that time, he owned 25% of the stock of Well-Vac. By the second hearing, Mr. West was no longer a stockholder in Well-Vac.

Mr. West testified that Harris Well Service frequently required the use of vacuum trucks and that he has utilized practically everyone in the business. On the issue of alleged service failures, Mr. West recounted three instances. The first was in the middle of July 1981 when a customer for whom Harris Well Service was working called him and instructed him to call Guillo-ry for a vacuum truck. The call was received at approximately 2:30 p.m. and the truck was needed by 6:00 p.m. Mr. West testified that Guillory could not immediately provide a truck and could not guarantee that one would be available before 6:00 p.m. Therefore, he recontacted the customer, told him of Guillory’s inability to provide a truck immediately, and left him with the phone numbers of other carriers. On cross-examination, Mr. West admitted that he did not attempt to contact other carriers and that service was eventually obtained that day. The second and third instances of alleged service failures described by Mr. West occurred in the middle of 1981 and in August of 1982. He was unable to provide specifics about either incident.

The final supporting shipper to testify at the second hearing was Mr. John Cornell, assistant secretary/treasurer and field foreman for Drew Cornell, Inc. Mr. Cornell’s brother, Mr. Robert Cornell, testified for the applicant at the first hearing. The only alleged service failure Mr. John Cornell could recall occurred approximately two years prior to his testimony. He stated that he called Prudhomme who was unable to provide a truck. On cross-examination, Mr. Cornell stated that service has been adequate, but not 100%. When asked if, as' a general rule, he could obtain the necessary services from other carriers if one particular carrier is unable to provide a truck, he responded in the affirmative.

Fourteen certified carriers testified in opposition to the application at the second hearing. All of these witnesses stated that they are willing and able to handle the business of the supporting shippers. In fact, all testified that they need additional business. According to their testimony, none of the carriers has received a complaint from any of the supporting shippers.

After reviewing the foregoing testimony, we conclude that there was no clear showing that the public convenience and necessity would be materially promoted by the issuance of the certificate to Well-Vac. The evidence in support of the applicant consisted merely of vague and undocumented accounts of isolated instances in which a carrier was not immediately available. . But, there was no effort made in any of these instances to contact a competing carrier. Additionally, there was no evidence showing a dissatisfaction by a shipper with the quality of the services performed by any of the existing carriers. Furthermore, there was no evidence to justify the issuance of a certificate granting statewide authority to transport almost any type of special commodity. Well-Vac’s testimony was limited to the need for carriers in the southwest Louisiana area, and this testimony related merely to two commodities, salt water and mud. In contrast, the testimony in opposition demonstrated that the existing carriers were operating at less than 50% average utilization and that none of the carriers received a single complaint from the supporting shippers about the quality of their services.

In sum, there was no showing that the services provided by the existing carriers was inadequate either in quality or quantity. Therefore, after reviewing the evidence presented to the Commission, we conclude that the Commission could not have reasonably concluded that it was clearly shown that the public convenience and necessity would be materially promoted by the approval of Well-Vac’s application for a certificate of public convenience and necessity. Hence, the issuance of the certificate to Well-Vac was arbitrary and capricious and the district court’s judgment reversing the Commission’s orders was correct.

DECREE

For the reasons assigned, the judgment of the district court is affirmed.

      . La.R.S. 45:1192 provides:
      If any of the persons, mentioned in R.S. 45:1191, or other party in interest, shall be dissatisfied with any order entered by the commission, adopting, fixing, changing, altering, or modifying, any rate, classification, rule, charge, or general regulation, the dissatisfied person may, within three months after the order made by the commission becomes effective, file in a court at the domicile of the commission, a petition setting forth the particular cause of objection to the order or regulation of the commission complained of. All such cases shall be tried in the same manner as civil cases and shall be given precedence over all other civil cases in the court, and shall be heard and determined as speedily as possible. The court may affirm the order of the commission complained of, or it may change, modify, alter, or set it aside, as justice may require.

      . La. Const, art. 4, § 21(E) provides:
      Appeal may be taken in the manner provided by law by any aggrieved party or interve-nor to the district court of the domicile of the commission. A right of direct appeal from any judgment of the district court shall be allowed to the supreme court. These rights of appeal shall extend to any action by the commission, including but not limited to action taken by the commission or by a public utility under the provisions of Subparagraph (3) of Paragraph (D) of this Section.

      .Well-Vac raises three additional assignments of error. First, Well-Vac maintains that the protest filed by Vacuum Truck Carriers of Louisiana, Inc., an association of individual member carriers, should be stricken because, under the rules of the Commission, an association has no justiciable interest in the proceedings. This argument ignores that the individual member carriers were also protesting the application and that the Commission instructed counsel for these carriers to file one letter in the name of the Association to perfect the rights of all members to protest. Hence, this contention is without merit.
      In the second assignment of error, Well-Vac contends that the opposition testimony of certain carriers at the second hearing should have been excluded because the witnesses were not listed on the pre-trial order. There is no merit to this contention. The pre-trial order was prepared solely for trial before Judge Doherty and was not relevant to the further hearing on remand before the Commission.
      Well-Vac’s final assignment of error states that the lack of a provision regarding pre-hear-ing discovery prejudiced its interests in the matter. Due to Rule 39 of the Rules of Practice and Procedure of the Louisiana Public Service Commission on depositions, this contention is without merit.