Bosem v. Bosem

269 So. 2d 758
CourtDistrict Court of Appeal of Florida
DecidedNovember 14, 1972
Docket71-498 to 71-500
StatusPublished
Cited by13 cases

This text of 269 So. 2d 758 (Bosem v. Bosem) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Bosem v. Bosem, 269 So. 2d 758 (Fla. Ct. App. 1972).

Opinion

269 So.2d 758 (1972)

Arie Lionel BOSEM et al., Appellants,
v.
Ellen Rochelle BOSEM, Appellee.

Nos. 71-498 to 71-500.

District Court of Appeal of Florida, Third District.

November 14, 1972.
Rehearing Denied December 20, 1972.

*760 Sibley, Giblin, Levenson & Ward, Miami Beach, for appellants.

Miller & Podell, Miami Beach, for appellee.

Before PEARSON, CHARLES CARROLL and HAVERFIELD, JJ.

PER CURIAM.

We are presented with these several appeals assigning errors concerning the financial provisions of a final judgment of divorce. Separate appeals were filed from the judgment, from the order taxing costs, and from the order granting plaintiff's attorney's fee. In addition the appellee has cross-assigned errors in regard to certain portions of the judgment. The separate appeals were consolidated for all appellate purposes.

The divorce was awarded the wife, Ellen Rochelle Bosem, who is the appellee here. She was awarded the custody of the two minor children of the parties, Sanford David Bosem, born December 9, 1963, and Marc Emery Bosem, born December 20, 1964. No point on appeal is presented which seeks a reversal of that portion of the judgment dissolving the marriage or that portion which awarded custody of the children to the appellee. The defendant husband by a "supplemental" answer counterclaimed against the wife alleging that she was guilty of adultery. The trial court found that the charge of adultery was not proved. This finding is made the subject for appellant's first point on appeal.

We hold that error has not been demonstrated upon the trial court's finding that: "... the defendant-husband has failed to sustain the burden of proof of the affirmative defense of adultery alleged in his supplemental answer." The husband urges specifically that the trial judge erred in failing to apply the principle followed by this court in Benson v. Benson, Fla.App. 1958, 102 So.2d 748. In that case, we set out the applicable law as follows:

* * * * * *
"`To prove adultery the law does not require that specific acts be attested by eyewitnesses. The rule approved by the weight of authority is that if the circumstances proven are such as to lead the guarded discretion of a reasonable and just man to the guilt of the participants that is sufficient... . if desire and opportunity were proven adultery would be presumed.'"

We adhere to that principle but conclude that it does not require reversal of the trial court's finding in this case. The husband produced only one witness, a paid investigator, on the issue of the wife's alleged adultery. The testimony of such a witness must of necessity be accepted with caution. See cases collected at 24 Am.Jur.2d, Divorce and Separation § 390. In this case, the wife was under the surveillance of *761 the paid investigator for approximately one month after the separation of the parties. He observed the wife on five dates. She had dates with three different men in that period. The wife testified at great length and in specific detail about each of the five evenings. She denied adultery or any emotional attachment to the persons involved. Two of the men testified to the occasions in which they were concerned. Each denied the charge. The investigator's testimony concerning these incidents does not compel the conclusion that adultery was committed. Therefore, this case is distinguished from McMillan v. McMillan, 120 Fla. 209, 162 So. 524 (1935); Heath v. Heath, 103 Fla. 1071, 138 So. 796 (1932); and Benson v. Benson, supra.

The facts of the instant case bring it within the purview of the rule that where a decision of a trial judge sitting as a trier of fact is based upon conflicting evidence and there is substantial evidence to support the finding of the judge, then the finding will not be disturbed upon appeal unless it is clearly against the manifest weight of the evidence or is based upon a mistaken application of established law. Cowen v. Cowen, Fla. 1957, 95 So.2d 584; O'Dell v. O'Dell, Fla.App. 1967, 204 So.2d 734; Ames v. Ames, Fla.App. 1963, 153 So.2d 737.

Appellant's second point urges that the monetary allowances to the wife are excessive. As stated in the judgment, the trial judge found the financial situation to be as follows:

* * * * * *
"e) That the defendant husband has an admitted net worth in the sum of $2,210,388.41, and that his true annual income is in excess of the sum of $100,000.00.
"f) That the plaintiff's only assets are certain securities in the sum of $30,000.00 held in her name in trust for the minor children, clothing, furs and jewelry worth several thousand dollars, and the house and furniture, furnishings and fixtures contained therein, located at 554 Lakeview Drive, Miami Beach, Florida, purchased by the defendant-husband as a gift to the plaintiff subsequent to the sale of another house, which the plaintiff had solely owned, and which was also a gift from the defendant-husband. That the plaintiff's title to the said property located at 554 Lakeview Drive, Miami Beach, Florida, is encumbered by a mortgage in the original principle amount of $40,000.00.
"g) That the plaintiff is entitled to the ownership, legal and equitable, and sole possession of the said house and personalty contained therein, located at 554 Lakeview Drive, Miami Beach, Florida.
"h) That the plaintiff has no income, and has no assets other than those hereinabove described, and that she and the two minor children of the parties are wholly dependent upon the defendant-husband for their support."
* * * * * *

Based upon these findings the trial judge: (1) granted the wife periodic alimony of $1,500 per month; (2) granted support for the two minor children of $500 per month for each child; (3) granted the wife lump sum alimony in the amount of $100,000;[1] (4) required the husband to pay all future medical and dental expenses of the wife and children;[2] (5) required the husband to pay *762 for all private and religious schooling of the children;[3] (6) required the husband to maintain a life insurance policy of $100,000.00 for the benefit of the children;[4] (7) confirmed the wife's title to the marital home;[5] and, (8) denied the husband's claim to a special equity in the wife's property.

The appellant points out that the allowances to the wife and children are generous, but that of itself does not make them excessive. The key to appellant's argument is his contention that the trial judge misapprehended the legal effect of the evidence before the court concerning the issue of appellant's financial worth. We should not attempt to reassess the evidentiary weight given by the trier of fact to the testimony of the witnesses, the documentary evidence, and the expert conclusions of the court-appointed auditor.

The trial judge made a direct finding of the financial worth and the annual income of the appellant (see section "e" of the final judgment which is quoted above). It is true that the husband's evidence would indicate a smaller amount of annual income but the evidence before the court is sufficient to support the court's finding.

An examination of the elements of the total awards reveals that not all the elements are supported in the record by the needs of the wife and children. In addition, some of the elements of the award are not proper under the facts of this case. We must therefore discuss the amounts awarded separately.

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Bluebook (online)
269 So. 2d 758, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bosem-v-bosem-fladistctapp-1972.