WESLEY JAMES, APPELLANT,
v.
SHIRLEY JAMES, APPELLEE
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In this family law appeal, the Florida District Court of Appeal reversed a trial court's award of permanent alimony to the wife in a dissolution of marriage, finding that the alimony issue was never raised in the pleadings and was not tried by the parties' express or implied consent.
The court held that it could not. Because alimony was neither pleaded nor tried by the parties' express or implied consent, the award was improper and was vacated. The court affirmed all other aspects of the judgment.
[1] A judgment based upon a matter entirely outside of the issues made by the pleadings cannot stand.
[2] Issues not raised by the pleadings may be treated as if they had been raised if tried by the expressed or implied consent of the parties.
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Join FLexlaw to unlock all legal intelligence“The crucial question is whether the alimony issue was raised in the pleadings or tried by the expressed or implied consent of the parties. We find that it was not.”
States the central issue and the court's conclusion that alimony was neither pleaded nor tried by consent
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Join FLexlaw to unlock all legal intelligenceIn her petition for dissolution of marriage, the wife requested a dissolution, child custody, child support, exclusive use of the residence, a restrai…
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MITCHELL, HENRY CLAY, Jr., Associate Judge.
Appellant-Husband, appeals from a final judgment of dissolution of marriage awarding the Appellee-Wife permanent alimony.
The crucial question is whether the alimony issue was raised in the pleadings or tried by the expressed or implied consent of the parties. We find that it was not.
In the wife’s petition for dissolution of her marriage, she demanded the following relief: a dissolution of her marriage, child custody, child support, exclusive use of the residence, restraining order and attorney’s fees and costs.
The general rule is that a judgment based upon a matter entirely outside of the issues made by the pleadings cannot stand. Cortina v. Cortina, 98 So. 2d 334 (Fla.1957) and Chandler v. Chandler, 330 So. 2d 778 (1st DCA 1976).
Appellee-Wife claims that the issue of alimony was tried by the expressed or implied consent of the parties. Rule 1.190(b) of the Rules of Civil Procedure provides that when issues not raised by the pleadings are tried by the expressed or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings. An examination of the record reveals that this issue was not tried by the expressed or implied consent of the parties. In addition, we find that the evidence presented would not support an award of permanent alimony.
Accordingly, that part of the final judgment awarding alimony to the wife is vacated, and the final judgment is otherwise affirmed.
Appellee’s motion for attorney’s fees is denied.
Affirmed in part, reversed in part.
MILLS, J., concurs.
ROBERT P. SMITH, Jr., J., concurs specially. (Associate Judges, sitting by assignment pursuant to Supreme Court administrative order filed July 17, 1979).
ROBERT P. SMITH, Jr., Judge,
specially concurring:
I conceive that the wife’s petition for dissolution fairly alleged her inability to provide reasonable support for herself, and that the prayer may be considered as for relief consistent with that allegation, including alimony. I agree that the wife’s entitlement to permanent periodic alimony was not demonstrated, but would reverse without prejudice to the court’s consideration of rehabilitative alimony.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
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Cooper v. Cooper, 406 So. 2d 1223 (Fla. 4th DCA 1981)…, a judgment based upon a matter entirely outside the issues made by the pleadings cannot stand. Cortina v. Cortina, 98 So. 2d 334 (Fla.1957); Chandler v. Chandler, 330 So. 2d 778 (Fla. 1st DCA 1976). This general rule was applied in James v. James, 374 So. 2d 1085 (Fla. 5th DCA 1979), which is directly on point. There, the Fifth District Court of Appeal vacated that part of a final judgment of dissolution of marriage which awarded the wife permanent alimony where her petition for dissolution did not raise the…
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Carole v. Knecht, 629 So. 2d 883 (Fla. 3d DCA 1993)…o substitute the following for paragraph one on page five: HUBBART, BASKIN and COPE, JJ., concur. . The husband did not assert the constructive trust theory in any pleadings. See Cortina v. Cortina, 98 So. 2d 334 (Fla.1957); James v. [*886] James, 374 So. 2d 1085 (Fla. 5th DCA 1979); Teta v. Teta, 297 So. 2d 642 (Fla. 1st DCA 1974). . There is no evidence to demonstrate that the wife's misconduct justifies the denial of a permanent alimony award. Noah v. Noah, 491 So. 2d 1124 (Fla.1986); Eckroade v. Eckroad…
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Kratzer v. Reimiller, 552 So. 2d 1188 (Fla. 5th DCA 1989)…ent is of no matter. It is wrong to give what is not properly pleaded. See Hines v. Hines, 494 So. 2d 297 (Fla. 3d DCA 1986); Massey v. Massey, 478 So. 2d 478 (Fla. 2d DCA 1985); Cooper v. Cooper, 406 So. 2d 1223 (Fla. 4th DCA 1981); James v. James, 374 So. 2d 1085 (Fla. 5th DCA 1979). Those portions of the judgment awarding alimony and fees are reversed; otherwise, the judgment is affirmed. AFFIRMED in part; REVERSED in part. COWART, J., concurs. SHARP, J., dissents with opinion.…1 / 2
Previewing 3 of 6 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Cortina v. Cortina, 98 So. 2d 334 (Fla. 1957)
- Harrington Chandler and Altamease Chandler v. Chandler, 330 So. 2d 778 (Fla. 1st DCA 1976)