Defendant in Error, as Complainant, exhibited her bill of complaint in the Circuit Court of Dade County praying for separate maintenance and other relief. Appellant, as defendant, filed his answer and counter claim in which he admitted the marriage and other material allegations of the bill but prayed for divorce on various and sundry statutory grounds. Complainant moved to dismiss the counter claim and for maintenance and attorneys' fees pendente lite. On final hearing, the counter claim was dismissed, the complainant was awarded thirty dollars per week for support and maintenance and was permitted to occupy the residence located at 555 North east 57th Street, Miami, Florida, as her home and abode. Defendant was required by the decree to keep the mortgage encumbering said property paid and in good standing and in default thereof, plaintiff was given leave without additional showing, to apply for an increase of the weekly allowance. The decree also awarded Complainant $400 attorneys' fees and court costs incurred by her in the litigation. This appeal is from that incurred by her in the litigation. This appeal is from that decree.
It is first contended that the residence located at 555 North east 57th Street is the property of a third party; to-wit, Miami Baking Company, not a party to this cause, and being so, the court was without power to decree the Complainant the right to reside therein as part of her maintenance and support. *Page 624
This contention is unquestionably true as to property actually owned and controlled by third parties or as to property in which third parties have a dominant or controlling interest but in this case, while the record disclosed that Miami Baking Company is the nominal owner of the residence located at 555 North east 57th Street, it is also shown that the major portion of the stock in Miami Baking Company is owned by Appellant and that consequently he owns the major interest in said residence. For this reason, the position of Appellant on this point is not well taken as to the interest of appellant but as to the interest of others, the decree cannot operate.
We think that the alternative feature of the decree in this case was erroneous in that it leaves Appellant in doubt as to his status. The court should have taken into consideration all factors affecting the rights of the parties and indicated what he considered a reasonable amount which should have been added to the weekly allowance in lieu of the occupancy of the residence by Appellee.
Considered in the light of the record and the briefs, the judgment appealed from has the appearance of being extremely liberal to the Appellee. She is given thirty dollars per week, a comfortable home in which to live, and four hundred dollars attorneys' fees with cost of the litigation. The home is encumbered with a $4600 mortgage with other charges which Appellant is required to carry and there is only one child in the family which he takes to rear and educate. It appears further that the home awarded the Appellee is large enough to and that she is actually taking care of several of her family connections which Appellant is in no sense responsible for. It is shown that Appellant has a contract for a substantial salary but the contract is contingent and the extent to which it is paid is not certain. *Page 625
All these factors should be considered and judgment rendered accordingly. If the judgment is in the alternative, it should be definite and certain as to both alternative and leave neither party in doubt as to his status. The decree against defendant should be clear and specific in all respects as to what is required of him. The judgment appealed from is therefore affirmed but with directions that it be modified to accord with the views expressed in this opinion.
Affirmed with directions.
WHITFIELD, BROWN and CHAPMAN, J.J., concur.
ELLIS, C.J., and BUFORD, J., concur specially.