Quackenbush v. Quackenbush

47 Fla. Supp. 66
CourtCircuit Court of the 15th Judicial Circuit of Florida, Palm Beach County
DecidedJanuary 12, 1978
DocketNo. 75-1634-CA(D)03-B
StatusPublished

This text of 47 Fla. Supp. 66 (Quackenbush v. Quackenbush) is published on Counsel Stack Legal Research, covering Circuit Court of the 15th Judicial Circuit of Florida, Palm Beach County primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Quackenbush v. Quackenbush, 47 Fla. Supp. 66 (Fla. Super. Ct. 1978).

Opinion

DANIEL T. K. HURLEY, Circuit Judge.

Order confirming in part and disapproving in part report and' recommendations of special master and modifying final decree of dissolution: This cause came on before the court upon the former-wife’s and the former-husband’s exceptions to the report and [67]*67recommendations of the special master. At the outset it should be noted that a final judgment was entered in this cause by the Honorable W. C. Williams on June 3, 1976. Thereafter the former-wife filed, a motion for rehearing on June 14, 1976; said motion was denied on June 17, 1976 and it appears that these orders were not appealed. Thus on August 18, 1976 and again on September 20,

1976, when the former-wife filed a petition for modificiation, and on November 12, 1976, when the former-husband filed a counter-petition for modification, each party assumed the burden of demonstrating that there had been “a substantial change in circumstances,” Taplin v. Taplin, 341 So.2d 1064 (Fla. 3d DCA 1977) since the entry of the June 3rd final judgment.

On January 10, 1977, the Honorable Culver Smith, referred the amended petition and counter-petition to the Honorable Stanley J. Narkier as special master. Pretrial proceedings were conducted and the matter came on for hearing before the master on May 3rd and 4th, 1977. His report and recommendations were filed on July 12,

1977, and exceptions by both parties were duly noted thereafter. In considering these exceptions the following principle must be borne in mind — “The findings of fact and recommendations of a special master should be approved and adopted by the chancellor unless clearly erroneous or it appears that the master has misconceived the legal effect of the evidence.” Claughton v. Claughton, 347 So.2d 437 (Fla. 3d DCA 1977). The master’s findings should not be disregarded or overruled by the chancellor simply because of an opinion bv the chancellor at variance with that of the master. Happing v. Lovejoy, 53 So.2d 704 (Fla. 1951).

I

Increase of child support

Turning now to the issues at hand, the master recommended that the final judgment be modified to permit a $50 increase per month for the support of the minor child Stephen. The June 3rd final judgment required a payment of $250 per month; the master recommended an increase up to $300 per month for Stephen. The thrust of the former-husband’s exception to this recommendation is that (1) there has been no substantial change in the child’s circumstances since June 3, 1976 and (2) the child’s physical condition was fully presented to and considered by the trial court prior to the entry of the final decree. In essence, the former-husband argues that the former-wife is attempting to utilize a motion to modify in lieu of an appeal from the final decree.

The facts as presented to the special master indicate that the child, Stephen, suffers from portal hypertension — pressure resulting from a scarring and blocking of the vein system in the liver and [68]*68spleen. (Tr. March 31, 1976 p.51.) This necessitated hospitalization, testing and major and minor surgery prior to the entry of the final decree. Without question, these are matters which were brought to the trial court’s attention prior to the entry of its final judgment on June 3, 1976. (See Tr. March 31, 1976 pp.47-57 and 63.) However, on July 19, 1976, following the entry of the final judgment, Stephen was taken to Gainesville for an operation involving the splenetic vein (Tr. March 31, 1976 at 53) which is referred to as a portal shunt. (Tr. p.234.) While the possibility of this operation had been foreseen by the trial judge, (Tr. March 31, 1976 p.53) it was not anticipated that it would occur in the immediate future (Tr. March 31, 1976 p.53.) Though the former-husband’s insurance covers the major costs involved (Tr. pp.67-71 and p.74), there are numerous, continuing incidental expenses which must be borne by the former-wife (1) travel and her accomodations while the child is in the hospital (Tr. March 31, 1976 p.53 and Tr. p.73); and ((2) frequent trips for medical and clinical checkups. (Tr. p.53.)

Reviewing the facts and testimony presented to the master, I conclude that his finding with respect to the necessity for increased child support is logical, well supported in the record, and accordingly merits confirmation by this court.

II

Rehabilitative alimony

The final decree of June 3, 1976, made the following provision for rehabilitative alimony —

Husband shall additionally pay rehabilitative alimony of $200 per month commencing June 1, 1976, and to continue for one year up to and including May 1, 1977. At the end of this period upon proper motion the court will review the circumstances of the parties to determine whether further rehabilitative alimony is needed.

In response to the former-wife’s petition of August 18, 1976, and her amended petition for modification of September 20, 1976, the special master found —

That the former-wife is in need of further rehabilitative alimony and that the former-wife has demonstrated an actual and substantial change of circumstances as of the date of filing the amended petition for modification and continuing as it relates to the child support for the youngest child bom to the marriage, Stephen Quackenbush.

The master then recommended —

That the final judgment entered herein on June 3, 1976, be modified to require the former-husband to pay rehabilitative alimony of $200 [69]*69per month commencing August 1, 1977, and to continue for a period of two years up to and including July 1, 1979. At that time, it is recommended that the court again review the circumstances of the parties to determine whether further rehabilitative alimony is needed upon proper motion to the court.

The record before the special master reflects that the former-wife continues to be unemployed (Tr. p.13) and that this situation is necessitated by the special needs (Tr. pp.57-60) and condition of Stephen (Tr. p.53). As such, the master’s finding and recommendation are well supported by the record.

The former-wife has excepted to the master’s recommendation of a commencement date of August 1, 1977. She contends that her needs have been constant since the filing dates of her petition (August 18, 1976.) and amended petition (September 20, 1976) and that it was error for the master to allow a two month hiatus without rehabilitative alimony. (Under the June 3rd decree, alimony terminated on May 1, 1977. Under the master’s recommendation it would recommence on August 1, 1977.) The former-wife relies upon Romona v. Romona, 244 So.2d 547 (Fla. 3d DCA 1971) for the proposition that the master could have made the alimony retroactive to the filing date of the petition for modification.

In that the court has previously determined that the master’s findings of fact fully justify a continuance of rehabilitative alimony, the question is whether the master’s recommendation of August 1, 1977 as a commencement date is “clearly erroneous” or whether in establishing this date, the master “has misconceived the legal effect of the evidence.” Frank v. Frank, 75 So.2d 282, 285 (Fla. 1954).

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Related

Frank v. Frank
75 So. 2d 282 (Supreme Court of Florida, 1954)
Claughton v. Claughton
347 So. 2d 437 (District Court of Appeal of Florida, 1977)
Mills v. State
280 So. 2d 35 (District Court of Appeal of Florida, 1973)
Williams v. State
264 So. 2d 106 (District Court of Appeal of Florida, 1972)
Taplin v. Taplin
341 So. 2d 1064 (District Court of Appeal of Florida, 1977)
Vaughn v. Mandis
53 So. 2d 704 (Supreme Court of Florida, 1951)
Dumas v. State
350 So. 2d 464 (Supreme Court of Florida, 1977)
Ramona v. Ramona
244 So. 2d 547 (District Court of Appeal of Florida, 1971)
Angell v. State
271 So. 2d 37 (District Court of Appeal of Florida, 1972)
Goldberg v. Goldberg
327 So. 2d 828 (District Court of Appeal of Florida, 1976)

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Bluebook (online)
47 Fla. Supp. 66, Counsel Stack Legal Research, https://law.counselstack.com/opinion/quackenbush-v-quackenbush-flacirct15pal-1978.