Fairall v. Fairall , 1965 Fla. App. LEXIS 4081 ( 1965 )

LILES, Judge.

This is an appeal by the plaintiff, Lawrence M. Fairall, from a final decree denying his divorce.

Plaintiff husband brought suit for divorce against defendant wife and alleged the grounds therefor to be conduct amounting to habitual indulgence in a violent and ungovernable temper and desertion. Defendant answered the complaint by filing a general denial but sought no affirmative relief. After hearing the testimony of several witnesses for both sides, the chancellor entered his final decree denying plaintiff a divorce and finding that plaintiff’s conduct was the producing cause of defendant’s demeanor.

Plaintiff on appeal asserts that the chancellor erred in denying the divorce on the stated ground that plaintiff’s conduct was the producing cause of defendant’s behavior. We find substantial competent evidence in the record to support this finding and we affirm that portion of the chancellor’s decree denying the divorce.

In addition, plaintiff attacks the chancellor’s award to defendant of attorney’s fees and expenses. Defendant did not request these items in her answer but filed a petition praying for them. After hearing on the petition prior to the final hearing, the chancellor denied defendant’s petition. At the time of the final hearing there were no pleadings seeking .these items, nor was any evidence presented relative to an award to defendant for attor-ny’s fees and expenses. Nonetheless, the chancellor made such an award. We must therefore reverse that part of the decree awarding defendant attorney’s fees and expenses.

Affirmed in part and reversed in part.

SMITH, Acting C. J., and ANDREWS, J., concur.