Mirle F. GOODE, Appellant, v. Mollye B. GOODE, Appellee, 76 So. 2d 794

SEBRING,. Justice. Mirie F. Goode brought suit for divorce against his wife, Mollye B. Goode. The defendant filed her answer and counterclaim in which she prayed for a divorce against the plaintiff.

In her counterclaim she also prayed “that this court will decree to her alimony * * * and counsel fees * * * and will make such orders and decrees touching the payment of said alimony, costs, charges and expenses for attorney’s fees, and will protect the interest of claimant in this cause.” The plaintiff failed to file a reply to the counterclaim and, thereafter, pursuant to notice, the trial court entered a decree pro confesso against him.

The attorney for the defendant mailed a copy of the decree pro confesso to the attorneys for the plaintiff and thereafter moved the court for an order appointing an examiner to take and report the testimony in respect to the matters set forth in the counterclaim. Pursuant to the motion an examiner was appointed and testimony was taken. Based upon the testimony the trial court found and adjudicated that the equities of the cause were with the counterclaimant and that a divorce decree should be entered in her favor as prayed.

Included in the decree was an award to the counterclaimant of all the right, title, interest, equity or estate which the husband held and owned in certain real and personal property of which the parties were seized and possessed during their marriage, “in lieu of alimony, suit money, attorney’s fees and costs.” On this appeal the plaintiff below questions the final decree on the grounds that the evidence was not sufficient to sustain the allegations of the counterclaim for divorce and that under the allegations and proof the court was not warranted in awarding to the wife the husband’s interest in the property, in lieu of alimony, attorney’s fees and costs.

The appellee makes no contention that the appellant, having suffered the entry of a decree pro con-fesso upon the counterclaim, is not entitled to present these issues, and consequently that point is not decided. But see Matthews v. Wilkerson, 132 Fla. 753, 182 So. 439; Minick v. Minick, 111 Fla. 469, 149 So. 483. The evidence in the cause is sufficient to support the decree granting divorce to the wife.

Therefore the only real question on the appeal is in respect to the award to the wife, in lieu of alimony, attorney's fees and costs, of the husband’s undivided one-half interest in certain property owned by the parties as tenants in common. As has already been noted, the counterclaim filed by the wife prayed for the allowance of alimony, attorney’s fees and costs.

It did not pray that in lieu of such allowance there be a division of property between the parties, or that the wife be given a lump sum award from the husband’s property; nor did it allege any facts that on their face would have justified such an award. There is no proof that the wife assisted the husband in the accumulation of money or property during the marriage, or that she contributed any money or property of her own to the venture. The parties lived together for less than one year. Prior to the marriage the wife was employed and earned her income.

She is ten years younger than the husband and is not physically incapacitated. The husband is a disabled veteran in poor health with an income of $141 per month derived from the United States government in the form of a pension. As a result of an agreement entered into between the parties prior to the divorce proceedings the wife became the owner of a half-interest in all of the husband’s accumulations and property. We gain the impression from the record that by the terms of the final decree the husband has been stripped of virtually all of the remainder of his property.

While we do not suggest that the husband should not be required to pay alimony, attorney’s fees and costs of suit, it does appear to us that the decree went too far in respect to the award granted; particularly in view of the fact that the counterclaim did not contain a prayer for an award of that nature but only that alimony, attorney’s fees and court costs be decreed and that the court “make such orders and decrees touching the payment of [the same] as will protect the interest of claimant * * *." “We are constrained to the view that * * * a lump sum award should be made only in those instances where some special equities might require it or make it advisable; for instance, where the wife may have brought to the marriage, or assisted her husband in accumulating, property and where it is clearly established that the husband has assets sufficient in amount to pay the gross award. * * * There may be other situations which might justify or possibly require a lump sum award, but it should never be made unless the husband is in a financial position to make payment of such gross award without endangering or actually impairing his economic status.” Yandell v.

Yandell, Fla., 39 So.2d 554, 556. The cause should be reversed for such further proceedings with reference to the claim for alimony as may conform with law and the principles herein stated. It is so ordered. THOMAS, HOBSON, MATHEWS and DREW, JJ., concur. ROBERTS, C. J., and TERRELL, J., dissent.