Kalmutz v. Kalmutz

299 So. 2d 30
CourtDistrict Court of Appeal of Florida
DecidedJuly 26, 1974
Docket73-508, 73-1101
StatusPublished
Cited by45 cases

This text of 299 So. 2d 30 (Kalmutz v. Kalmutz) 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
Kalmutz v. Kalmutz, 299 So. 2d 30 (Fla. Ct. App. 1974).

Opinion

299 So.2d 30 (1974)

Carol King KALMUTZ, Appellant,
v.
Sheldon E. KALMUTZ, Appellee.
Sheldon E. KALMUTZ, Appellant,
v.
Carol King KALMUTZ.

Nos. 73-508, 73-1101.

District Court of Appeal of Florida, Fourth District.

July 26, 1974.
Rehearing Denied September 19, 1974.

*31 Patrick W.E. Gillen, Jr., of Law Offices of James P. O'Flarity, West Palm Beach, for appellant.

L. Martin Flanagan of Jones, Paine and Foster, P.A., West Palm Beach, for appellee.

MAGER, Judge.

This is a consolidated appeal by both parties from an Order on Master's Report and Final Judgment and from an Order of Modification.

Subsequent to the wife filing a petition for dissolution of marriage and upon agreement of both the husband and wife, the lower court (chancellor) appointed a special master "to hear the evidence, to rule upon its admissibility, determine trial procedure and to exercise all other authority *32 according to the applicable provisions of rule 1.490, including the hearing of all pending motions and final hearing in this cause and thereupon to report his findings of fact, conclusions of law and recommendations to the court". Pursuant to such order the special master conducted hearings and submitted a report containing findings of fact and recommendations. The husband filed exceptions to the special master's report. Ultimately, upon consideration of the master's report and the exceptions thereto, the trial court entered an order and final judgment modifying and vacating in several respects some of the recommendations made by the special master. It is from this order that the wife appeals.

While the appeal from the final judgment was pending the wife applied for and received an order for temporary relief which had the effect of requiring the husband to comply with those portions of the final judgment pertaining to the payment of alimony and the making of mortgage payments during the pendency of the appeal. Subsequently, the husband filed a petition to modify the order granting the wife temporary relief pending appeal. The chancellor granted the husband's petition, reducing the alimony payments and vacating the requirement that the husband make mortgage payments.[1] It is from this order that the husband seeks interlocutory review.

The nature of the master's report, the final (and amended) judgment thereon and order on modification (and their relationship to and effect upon each other) are hereinafter summarized. The master recommended (a) payment by the husband of periodic alimony plus mortgage payments;[2] (b) payment by the husband of lump sum alimony or in the alternative that the husband convey his interest in the marital homeplace and pay and satisfy the mortgage thereon;[3] (c) that the wife be awarded a special equity in the amount of 25% in the husband's peach farm; (d) that the husband be held in contempt for failure to comply with an earlier order of the court pertaining to the second mortgage on the marital homeplace and the making of necessary repairs to restore the homeplace to a reasonable livable condition.

Upon the filing by the husband of exceptions to the master's report the chancellor entered his order and final judgment; and upon motion for clarification filed by the *33 wife the trial court entered an amended final judgment all of which had the effect of modifying the master's recommendations as follows: (a) changing the award of periodic alimony to rehabilitative alimony for a period of 12 months and reducing the monthly award;[4] (b) deleting the award of lump sum alimony in its entirety; (c) directing that the wife's special equity in the amount of 25% of respondent's peach farm be subject to any encumbrances on said property and any indebtedness of the (peach) business". The court made no reference whatsoever to the master's recommendation that the husband be held in contempt. It is from this order that the wife maintains the instant appeal.

The testimony before the master of the witnesses and parties with regard to the financial positions or transactions by and between the parties is not a model of clarity. The master performed a most difficult task in wading through a myriad of statements and representations before making his findings of fact and recommendations to the trial court. In determining the correctness of the chancellor's order and final (amended) judgment it is necessary to consider certain general principles applicable to the master-chancellor proceedings.

In Harmon v. Harmon, 40 So.2d 209 (1949), the Supreme Court of Florida was confronted with the propriety of a chancellor's action in overruling a master. Although recognizing the numerous decisions holding that every presumption favors the correctness of the rulings of the chancellor and that a final decree based largely on questions of fact will not be reversed unless the evidence clearly shows that it has been erroneous, the court nonetheless was clear to point out that this presumption loses its strength and weight "where all the testimony was actually heard by the master selected by the chancellor, and none of it was heard by the latter". In this regard the court stated:

"It is our view that the presumption of the correctness of the chancellor's ruling in overriding his master is overcome, for in this case he was in no better vantage point to judge the weight of the testimony on material questions of fact than is a member of this court."

The court in Harmon then discussed the relationship of the master to the chancellor and the circumstances under which a master's findings may be modified:

"While it cannot be questioned that in a case where the chancellor has appointed a master and empowered him to make findings he may override or modify them in any manner consistent with the justice of the case, he may not do this except for good cause. We interpret `good cause' to mean a showing that the findings of fact by the master were clearly erroneous.
"From our study of the subject it seems to us logical, if the master has heard all the testimony, that an exceptant to his findings undertakes the burden of showing that the master has clearly made a mistake — in other words, the same burden as an appellant who challenges in this court the conclusions of fact reached by the chancellor who has heard the witnesses. After all the master acts as an agent of the chancellor, and what he does in the capacity is in effect done by the court. These recommendations should be set aside only upon good cause, even though the findings were, as we held in Burns v. Burns, supra, 153 Fla. 73, 13 So.2d 599, advisory. Federal Equity Practice, Street, Vol. 2, page 910.
"In fine, we have the view that where, as in this case, a competent master is selected by the chancellor and attentively conducts the hearings, thoroughly digests the testimony of the witnesses, and arrives at conclusions which are logical and well supported, his findings, although advisory, should not be set aside *34 arbitrarily or capriciously (of which there is no claim in this case) nor should they be disregarded or overruled by the chancellor simply because of an opinion of the chancellor at variance with that of the master. As we have said, the master was acting as an accredited agent of the chancellor and was at the time performing a service which would have been performed by the chancellor himself but for the appointment.

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Bluebook (online)
299 So. 2d 30, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kalmutz-v-kalmutz-fladistctapp-1974.