Opinion
January 24, 1950.
Appeal from the Circuit Court, Dade County, Stanley Milledge, J.
Harold Ungerleider, Miami Beach, and Harold B. Bickow, Miami Beach, for appellant.
Schonfeld Greenberg and Martin Greenbaum, Miami Beach, for appellee.
On December 30, 1948, the Circuit Court of Dade County, Florida, entered its final decree and awarded: (1) a divorce to the parties hereto; (2) the custody of their minor child to the mother; and (3) decreed that the father pay weekly the sum of $35.00 for the support of the child. The terms of the decree were observed by the parties approximately four months, when the father of the minor filed in the court below his petition for a modification, in part, of the final decree previously entered. It was represented that changed conditions had occurred in the four months' period as (a) to his health and (b) his income or monthly earning capacity had diminished approximately one-half.
An answer was filed and the Chancellor heard evidence on the issues made and thereafter reached the conclusion and so decreed that there were no changes in the condition of the parties and that the points emphasized by the appellant-plaintiff existed, as shown by the record, at the time the original decree was entered on December 30, 1948. We have examined the record and find sufficient testimony to sustain the conclusions reached. This Court will not on appeal interfere with the findings of the Chancellor on factual matters unless an abuse of judicial discretion affirmatively appears, and on this point we fail to find error. See Kennard v. Kennard, 131 Fla. 473, 179 So. 660, and similar cases.
The decree appealed from was entered below on July 6, 1949. One of the provisions thereof was that the husband should pay to the wife as counsel fees the sum of $75.00 incurred by her in defending the husband's petition for a modification of the final decree dated December 30, 1948. It is contended here that the allowance of counsel fees under Chapter 25037, Acts of 1949, Laws of Florida, F.S.A. § 65.16, was erroneous because the petition for modification was filed in the court below on May 2, 1949, and Chapter 25037 became effective May 12, 1949. It is not disputed that the Act was in effect on July 6, 1949, when the decree appealed from was entered. We are not impressed with the contention.
The defendant-appellee filed in this court her petition for allowance of counsel fees incurred in defense of the decree entered below. It is our view that the petition should be granted, but because of the low earning capacity of the husband the amount of the fee should not exceed $100.00, which is hereby allowed.
Affirmed.
ADAMS, C.J., HOBSON, J., and REGISTER, Associate Justice, concur.