Linda v. Linda 352 So. 2d 1208

LETTS, Judge.

This interlocutory appeal comes to us from an order denying discovery in a dissolution of marriage proceeding. The question presented is whether an adulterous wife must disclose the actual name of her lover. We affirm.

The so called “no fault” divorce law was enacted, in part, to get rid of emotional and financial blackmail made possible by the continued threat of mental torture by way of embarrassing harassment through public washing of dirty linen.

Unfortunately, the appellate courts have chipped away at it and much of the fault concept has returned. Yet, in our opinion the appellate courts are not to blame for this retrogression because the Florida Statute § 61.08(2) (1973) as enacted, provides in part:

In determining a proper award of alimony, the court may consider any factor necessary to do equity and justice between the parties, (emphasis supplied).

Pursuant to this provision, this very court in Oliver v. Oliver, 285 So.2d 638 (Fla. 4DCA 1973) held that evidence of the wife’s gross misconduct was admissible. Subsequently, in Pro v. Pro, 300 So.2d 288 (Fla. 4DCA 1974), we required the husband to answer the question as to whether or not he had committed adultery upon the same premise stated in Oliver. However, in both of these cases the courts were careful to note that the extent to which such evidence would be admitted would be left to the trial judge’s discretion. In that regard we would repeat what we said recently in McAllister v. McAllister, 345 So.2d 352 (Fla. 4DCA 1977), at 354-355,

At all events, we would urge that evidence of misconduct be limited to gross situations such as existed in Oliver, with no mitigating circumstances, otherwise, as was conceded in that case, we will return to the very type of “. often sordid and provocative testimony of fault . . . that lead to the enactment of the so-called no-fault dissolution of marriage chapter.”

In the case now before us, the trier of the fact exercised that discretion and ruled that the name of the wife’s lover need not be revealed. In order to overturn that, we must find that the judge abused his discretion and we see nothing in the record to establish that he did.

The question of whether or not the wife actually committed adultery would be proper where, as here, she is claiming alimony. However, the record does not suggest why it is important to know the name of the person she committed it with. If the record revealed, for example, that her acts involved an incestuous relationship with her brother rendering her unfit for custody of the children, then we might be otherwise disposed. Yet, the record here is silent as to why this particular question is important. This being so, we cannot find the honorable trial judge to be in error.

AFFIRMED.

CROSS, J., concurs.

DAUKSCH, J., dissents with opinion.

DAUKSCH, Judge,

dissenting.

I respectfully dissent. The question presented is whether an admitted adulterous wife must disclose the name of her lover(s) when asked in discovery proceedings in a case in which the wife seeks alimony and child custody. I would answer in the affirmative.

Section 61.08, Florida Statutes (1975), provides:

“The court may consider the adultery of a spouse and the circumstances thereof in determining whether alimony shall be awarded to such spouse and the amount of alimony, if any, to be awarded such spouse.” (Emphasis added.)

Section 61.13(f), Florida Statutes (1975), provides, inter alia, that the moral fitness *1210of a parent is relevant to child custody determination. Here, the wife has denied committing adultery in the marital home and the husband has sought to find the name or names of the persons with whom the wife committed adultery. While I would not limit the holding, it is quite relevant to a child custody issue whether the wife has made her small children aware of her immoral conduct and the husband does not have to accept on its face her bare assertion that her adultery only occurred outside her home. Therefore, the names of any witnesses to the adulterous conduct, especially the participants, are relevant to issues in the dissolution case or at least might lead to relevant evidence. Fla.R. Civ.P. 1.280(b)(1) provides:

“Parties may obtain discovery regarding any matter, not privileged, that is relevant to the subject matter of the pending action, whether it relates to the claim or defense of the party seeking discovery or the claim or defense of any other party, including the existence, description, nature, custody, condition and location of any books, documents or other tangible things and the identity and location of persons having knowledge of any discoverable matter. It is not ground for objection that the information sought will be inadmissible at the trial if the information sought appears reasonably calculated to lead to the discovery of admissible evidence.”

See Pro v. Pro, 300 So.2d 288 (Fla. 4th DCA 1974), and Oliver v. Oliver, 285 So.2d 638 (Fla. 4th DCA 1973). McClelland v. McClelland, 318 So .2d 160 (Fla. 1st DCA 1975).

In the most recent and well reasoned opinion of Judge LETTS in McAllister v. McAllister, 345 So.2d 352 (Fla. 4th DCA 1977), it was held that the trial court should consider a party’s misconduct when determining alimony. Therefore the details of misconduct, even if admitted as in McClel-land, supra, may be admissible at trial and certainly are discoverable as mentioned above.