Herzog v. Herzog, 346 So. 2d 56 (Fla. 1977). · Go Syfert
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Herzog v. Herzog, 346 So. 2d 56 (Fla. 1977). Cases Citing This Book View Copy Cite
“even if the appellate court disagrees with the trial court and would have reached a different conclusion had it been in the shoes of the trial court, barring a lack of substantial evidentiary support for the findings of the trial court, the judgment should be affirmed.”
143 citation events (8 in the last 25 years) across 3 distinct courts.
Strongest positive: Statewide Guardian ad Litem Office v. C.C. & Department of Children and Families v. C.C. (fla, 2024-03-07)
Treatment trajectory · 1977 → 2026 · click a year to view as-of
1977 2001 2026
Top citers, strongest first. 29 distinct citers.
examined Cited as authority (verbatim quote) Statewide Guardian ad Litem Office v. C.C. & Department of Children and Families v. C.C.
Fla. · 2024 · signal: see · quote attribution · 1 verbatim quote · confidence high
even if the appellate court disagrees with the trial court and would have reached a different conclusion had it been in the shoes of the trial court, barring a lack of substantial evidentiary support for the findings of the trial court, the judgment should be affirmed.
examined Cited as authority (verbatim quote) Statewide Guardian ad Litem Office v. C.C. & Department of Children and Families v. C.C.
Fla. · 2024 · signal: see · quote attribution · 1 verbatim quote · confidence high
even if the appellate court disagrees with the trial court and would have reached a different conclusion had it been in the shoes of the trial court, barring a lack of substantial evidentiary support for the findings of the trial court, the judgment should be affirmed.
discussed Cited as authority (rule) Spires v. State
Fla. Dist. Ct. App. · 2015 · confidence medium
Instead of telling Tyra that he shot the victim in self-defense, he told her that “[I]f I would’ve knew you was there man that shit wouldn’t even never took place then and there.” The State also introduced the defendant’s text messages to his brother the night before the homicide, wherein the defendant informed his brother about his dispute with the victim and told his brother that he intended to “flip” the victim (which the defendant stated at the eviden-tiary hearing means to “kill” in street talk), and that “this dude [will] get what he[’s] looking for.” *1180 As the…
discussed Cited as authority (rule) Schwartz v. Schwartz
D.C. · 1999 · confidence medium
Although certainly such a conclusion would be within the court’s discretion where supported in the record, see Herzog v. Herzog, 346 So.2d 56, 58 (Fla.1977), here, the record reflects only that MAS had an obligation to Ellen, which was memorialized by the employment termination agreement.
discussed Cited as authority (rule) Ellis v. Ellis
Fla. Dist. Ct. App. · 1997 · confidence medium
As stated in Herzog v. Herzog, 346 So.2d 56, 58 (Fla.1977), "Even if the appellate court disagrees with the trial court and would have reached a different conclusion had it been in the shoes of the trial court, barring a lack of substantial evidentiary support for the findings of the trial court, the judgment should be affirmed." [1] FRANZ KAFKA, "Before the Law," from THE TRIAL, DEFINITIVE EDITION (Willa Muir and Edwin Muir trans., Alfred A. Knopf 1984).
cited Cited as authority (rule) Hill v. Jackson
Fla. Dist. Ct. App. · 1986 · confidence medium
Herzog v. Herzog, 346 So.2d 56, 58 (Fla.1977).
cited Cited as authority (rule) Karlan v. Karlan
Fla. Dist. Ct. App. · 1986 · confidence medium
Herzog v. Herzog, 346 So.2d 56, 58 (Fla.1977); Shaw v. Shaw, 334 So.2d 13, 16 (Fla.1976).
cited Cited "see" State v. Vino
Fla. Dist. Ct. App. · 2012 · signal: see · confidence high
See Herzog v. Herzog, 346 So.2d 56 (Fla.1977).
discussed Cited "see" Seijas v. Seijas
Fla. Dist. Ct. App. · 1990 · signal: see · confidence high
See Herzog v. Herzog, 346 So.2d 56 (Fla. 1977) (the finding by trial court that oral agreement in a dissolution of marriage was entered into due to duress was upheld even where the appellate court disagreed with the trial court and would have reached a different conclusion).
discussed Cited "see" Bird v. Bird
Fla. Dist. Ct. App. · 1983 · signal: see · confidence high
See Herzog v. Herzog, 346 So.2d 56 (Fla. 1977); Shaw v. Shaw, 334 So.2d 13 (Fla. 1976); Baker v. Baker, 394 So.2d 465 (Fla. 4th DCA 1981); Storer v. Storer, 353 So.2d 152 (Fla. 3d DCA), cert. denied, 360 So.2d 1250 (Fla. 1978).
cited Cited "see" Tibbs v. State
Fla. · 1981 · signal: see · confidence high
See Herzog v. Herzog, 346 So.2d 56 (Fla. 1977); Shaw v. Shaw, 334 So.2d 13 (Fla. 1976); Westerman v. Shell's City, Inc., 265 So.2d 43 (Fla. 1972).
cited Cited "see" Stoler v. Stoler
Fla. Dist. Ct. App. · 1979 · signal: see · confidence high
See Herzog v. Herzog, 346 So.2d 56 (Fla. 1977); Shaw v. Shaw, 334 So.2d 13 (Fla. 1976); Koeppel v. Koeppel, 351 So.2d 766 (Fla. 3d DCA 1977); and Peacock v. Carter, 315 So.2d 214 (Fla. 1st DCA 1975).
cited Cited "see" Smith v. Smith
Fla. Dist. Ct. App. · 1979 · signal: see · confidence high
See Herzog v. Herzog, 346 So.2d 56 (Fla.1977); Shaw v. Shaw, 334 So.2d 13 (Fla.1976).
cited Cited "see" Thompson v. Thompson
Fla. Dist. Ct. App. · 1979 · signal: see · confidence high
See Herzog v. Herzog, 346 So.2d 56 (Fla.1977); Shaw v. Shaw, 334 So.2d 13 (Fla.1976), and Krischer v. Krischer, 337 So.2d 1011 (Fla.3d DCA 1976).
cited Cited "see" Avidor v. Avidor
Fla. Dist. Ct. App. · 1979 · signal: see · confidence high
See Herzog v. Herzog, 346 So.2d 56 (Fla.1977); and Shaw v. Shaw, 334 So.2d 13 (Fla.1976).
cited Cited "see" Veiner v. Veiner
Fla. Dist. Ct. App. · 1978 · signal: see · confidence high
See Herzog v. Herzog, 346 So.2d 56 (Fla. 1977); and Shaw v. Shaw, 334 So.2d 13 (Fla. 1976).
cited Cited "see" Taplin v. Taplin
Fla. Dist. Ct. App. · 1978 · signal: see · confidence high
See Herzog v. Herzog, 346 So.2d 56 (Fla.1977); and Shaw v. Shaw, 334 So.2d 13 (Fla.1976).
cited Cited "see" Schwab v. Quitoni
Fla. Dist. Ct. App. · 1978 · signal: see · confidence high
See Herzog v. Herzog, 346 So.2d 56 (Fla. 1977); Shaw v. Shaw, 334 So.2d 13 (Fla. 1976); Tyrrell v. Tyrrell, 281 So.2d 221 (Fla.1st DCA 1973).
cited Cited "see" Krischer v. Krischer
Fla. Dist. Ct. App. · 1978 · signal: see · confidence high
See Herzog v. Herzog, 346 So.2d 56 (Fla.1977); and Shaw v. Shaw, 334 So.2d 13 (Fla.1976).
cited Cited "see" Rothenberg v. Rothenberg
Fla. Dist. Ct. App. · 1978 · signal: see · confidence high
See Shaw v. Shaw and Herzog v. Herzog, supra. Affirmed.
cited Cited "see" Plant v. Plant
Fla. Dist. Ct. App. · 1978 · signal: see · confidence high
See Herzog v. Herzog, 346 So.2d 56 (Fla.1977).
cited Cited "see" Josephs v. Josephs
Fla. Dist. Ct. App. · 1978 · signal: see · confidence high
See Herzog v. Herzog, 346 So.2d 56 (Fla.1977); Shaw v. Shaw, 334 So.2d 13 (Fla.1976); and Krischer v. Krischer, 337 So.2d 1011 (Fla. 3d DCA 1976).
discussed Cited "see, e.g." State of Florida v. Reginald Jackson
Fla. Dist. Ct. App. · 2025 · signal: see also · confidence medium
This [c]ourt does not reweigh the evidence or second-guess the circuit court’s findings as to the credibility of witnesses.” Haliburton v. State, 331 So. 3d 640 , 646 (Fla. 2021) (quoting State v. Herring, 76 So. 3d 891, 895 (Fla. 2011)) (cleaned up); see also Spires v. State, 180 So. 3d 1175, 1180 (Fla. 3d DCA 2015) (“As the Florida Supreme Court stated in Herzog v. Herzog, 346 So. 2d 56, 57 (Fla. 1977) . . . so long as there is competent substantial evidence to support the trial court’s findings, the reviewing court must yield.”).
discussed Cited "see, e.g." Anthony Q. Lizzmore, Husband v. Tonia E. Lizzmore, Wife
Fla. Dist. Ct. App. · 2019 · signal: see also · confidence medium
See Gray v. Gray, 103 So. 3d 962, 966 (Fla. 1st DCA 2012); Askegard v. Askegard, 584 So. 2d 47, 50 (Fla. 1st DCA 1991); see also Herzog v. Herzog, 346 So. 2d 56, 57 (Fla. 1977) (declaring that in divorce cases, it is not the function of the appellate court to re-evaluate the testimony and evidence).
cited Cited "see, e.g." Severs v. Severs
Fla. Dist. Ct. App. · 1983 · signal: see also · confidence low
See also Herzog v. Herzog, 346 So.2d 56 (Fla. 1977); Shaw v. Shaw, 334 So.2d 13 (Fla. 1976).
discussed Cited "see, e.g." Morgan v. Morgan
Fla. Dist. Ct. App. · 1979 · signal: see, e.g. · confidence low
See, e. g., Herzog v. Herzog, 346 So.2d 56 (Fla.1977); Shaw v. Shaw, 334 So.2d 18 (Fla.1976); Corvison v. Corvison, 362 So.2d 323 (Fla.3d DCA 1978); Demaso v. Demaso, 345 So.2d 391 (Fla.3d DCA 1977); and McAnespie v. McAnespie, 200 So.2d 606 (Fla.2d DCA 1967).
cited Cited "see, e.g." Kuntz v. Kuntz
Fla. Dist. Ct. App. · 1979 · signal: see, e.g. · confidence low
See, e. g., Herzog v. Herzog, 346 So.2d 56 (Fla.1977); and Shaw v. Shaw, 384 So.2d 13 (Fla.1976).
cited Cited "see, e.g." Cambest v. Cambest
Fla. Dist. Ct. App. · 1979 · signal: see, e.g. · confidence low
See, e.g., Herzog v. Herzog, 346 So.2d 56 (Fla. 1977).
discussed Cited "see, e.g." Adler v. Adler
Fla. Dist. Ct. App. · 1978 · signal: see, e.g. · confidence low
See, e. g., Herzog v. Herzog, 346 So.2d 56 (Fla.1977); Faircloth v. Faircloth, 339 So.2d 650 (Fla.1976); Sisson v. Sisson, 336 So.2d 1129 (Fla.1976); Shaw v. Shaw, 334 So.2d 13 (Fla.1976); Bosem v. Bosem, 279 So.2d 863 (Fla.1973); Firestone v. Firestone, 263 So.2d 223 (Fla.1972); Bowen v. Bowen, 347 So.2d 675 (Fla.3d DCA 1977); Goldin v. Goldin, 346 So.2d 107 (Fla.3d DCA 1977); Hazelwood v. Hazelwood, 345 So.2d 819 (Fla. 4th DCA 1977); Hawkesworth v. Hawkesworth, 345 So.2d 359 (Fla.3d DCA 1977); Long v. Long, 304 So.2d 483 (Fla. 1st DCA 1974); Kalmutz v. Kalmutz, 299 So.2d 30 (Fla. 4th DCA 197…
Flora HERZOG, Petitioner,
v.
Gerald Joseph HERZOG, Respondent.
49498.
Supreme Court of Florida.
Mar 10, 1977.
346 So. 2d 56
Adkins.
Cited by 129 opinions  |  Published

[*57] Alan R. Dakan of High, Stack, Davis & Lazenby, Miami, for petitioner.

John W. Prunty of Prunty, Ross, DeLoach & Olsen, Miami, for respondent.

ADKINS, Acting Chief Justice.

By petition for certiorari, we have for review a decision of the District Court of Appeal, Third District (Herzog v. Herzog, 330 So.2d 116), which allegedly conflicts with a prior decision of this Court (Shaw v. Shaw, 334 So.2d 13 (Fla. 1976)), as well as a prior decision of the District Court of Appeal, First District (Tyrrell v. Tyrrell, 281 So.2d 221), and the District Court of Appeal, Second District (Hobbs v. Hobbs, 136 So.2d 363) on the same point of law. We have jurisdiction, pursuant to Article V, Section 3(b)(3), Florida Constitution.

Petitioner wife filed suit for dissolution of marriage. The trial court entered judgment of dissolution granting (wife) petitioner permanent alimony, the marital home and attorney fees. In so holding, the court found in part:

"That, if the Wife entered into an oral agreement with the Husband, it was done under duress and without advice of independent counsel for the Wife, and therefore, is of no force and effect. That any money paid by the Husband to the Wife since their separation by virtue of the purported agreement would normally have been the amount he would have been obligated to pay for her support, or which he should have paid for the use of her home."

The court further found that the husband had disposed of the jointly owned personal property from the residence of the parties, and also assets of Gerald J. Herzog, Inc., of which petitioner was a majority owner.

Upon appeal, the District Court affirmed the award of permanent alimony and reversed the award of the home and one-half of the attorney's fees. In reversing the award of the home the court determined that it was to be held as tenants in common, since respondent gave good and valuable consideration in keeping with his agreement to purchase a one-half interest. Concerning the attorney fees, the District Court said:

"As to the third point relating to attorneys fees, we find no clear abuse of discretion in the award of attorneys fees in this case... . However, due to the relative financial status of each party, we find that it was error to order the husband to pay the entire amount of the attorneys fee." 330 So.2d at 118.

The District Court's opinion does not point to any legal error committed by the trial court, but instead finds error based upon an apparent re-evaluation of the evidence.

In Shaw, supra, this Court said:

"It is clear that the function of the trial court is to evaluate and weigh the testimony and evidence based upon its observation of the bearing, demeanor and credibility of the witnesses appearing in the cause. It is not the function of the appellate court to substitute its judgment for that of the trial court through re-evaluation of the testimony and evidence from the record on appeal before it. The test, as pointed out in Westerman, supra [Westerman v. Shell's City, Inc., 265 So.2d 43 (Fla. 1972)], is whether the judgment of the trial court is supported by competent evidence. Subject to the appellate court's right to reject `inherently incredible and improbable testimony or evidence,' it is not the prerogative of an[*58] appellate court, upon a de novo consideration of the record, to substitute its judgment for that of the trial court." 334 So.2d at 16.

This was essentially what the First District Court held in Tyrrell, supra:

"The trial court's judgment is clothed with a presumption of correctness and we do not think the appellant has overcome this presumption. It is not the province of this Court to substitute its judgment for that of the trier of facts in the absence of a clear showing of error." 281 So.2d at 221.

The Second District Court in Hobbs, supra, stated in part:

"[T]he criterion is not that we would have ruled differently had we been in the position of the chancellor but whether we conclude, with requisite assurance, that the chancellor's ruling constituted a palpable abuse of discretion." 136 So.2d at 365.

There is conflict and we have jurisdiction.

The tenancy in common ordered by the District Court based upon the agreement of the parties flies in the face of the findings of fact of the trial court. The finding by the trial court that any oral agreement made was "of no force and effect" due to duress and lack of independent counsel should not be dispensed with so summarily. Generally, in appellate proceedings, the trial court's findings of fact are shielded from attack and are clothed with a presumption of validity. Even if the appellate court disagrees with the trial court and would have reached a different conclusion had it been in the shoes of the trial court, barring a lack of substantial evidentiary support for the findings of the trial court, the judgment should be affirmed. Greenwood v. Oates, 251 So.2d 665 (Fla. 1971); Glass v. Parrish, 51 So.2d 717 (Fla. 1951); Trobaugh v. Trobaugh, 81 So.2d 629 (Fla. 1955). A review of the record of trial discloses sufficient grounds for the findings of fact issued by the trial court.

As the District Court noted in its opinion:

"[W]e [can] find no clear abuse of discretion in the award of attorneys fees in this case." 330 So.2d at 118.

We agree with this analysis and would reaffirm the trial court on this point, since absent a showing of an abuse of discretion the finding should stand.

Therefore, the decision of the District Court of Appeal is quashed, with instructions to reinstate the final judgment of the trial court.

It is so ordered.

ENGLAND, SUNDBERG and HATCHETT, JJ., concur.

BOYD, J., dissents.