JUDITH TURNER FINE, APPELLANT,
v.
TERESA E. FINE, APPELLEE
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Judith Fine appealed an order granting Teresa Fine's petition for a writ of attachment against an escrow fund held from a real property sale. The court dismissed the appeal, holding that Judith lacked standing because the attachment order was legally ineffective to affect her property rights, and that attachment was not the proper remedy to enforce the judgment against the escrow fund.
Judith lacked standing to appeal because the attachment order was legally ineffective to adjudicate title to the escrow fund and thus did not affect her property rights. Attachment was not available because the escrow fund was money, not goods and chattels or real property, and because no allegations were made that the property would soon be unavailable or that the debtor would be unavailable.
[1] A party cannot make themselves a party to an action by merely appearing and defending on behalf of a named party when the pleadings do not state a claim against them.
[2] A writ of attachment is available to enforce a creditor's rights only against the goods and chattels, lands, and tenements of the debtor, not a fund of money.
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Join FLexlaw to unlock all legal intelligence“The jurisdiction of the court can be exercised only within the scope of the pleadings in the action and, since these pleadings did not state a claim as against Judith, she cannot make herself a party to the action by merely appearing and defending on Robert's behalf.”
Establishes that Judith could not become a party to the divorce action by mere appearance and defense without being named in the pleadings.
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Join FLexlaw to unlock all legal intelligenceRobert Fine owed child support arrearages to his ex-wife Teresa Fine, and she obtained a judgment that became a lien on real property held by Robert a…
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COWART, Judge.
Teresa Fine obtained a judgment for child support arrearages against her ex-husband, Robert Fine. The judgment was recorded and became a lien against real property, which Robert and his second wife, Judith, held as tenants by the entirety, subsequent to Robert’s and Judith’s execution of a contract by which they agreed to sell the property to third parties. To facilitate closing of the sale, a portion of the proceeds sufficient to satisfy the judgment was placed in escrow with the buyers’ attorney.
Teresa became aware of the existence of this fund and attempted to obtain execution of her judgment against the fund by filing a “petition for writ of attachment” in the original divorce action. This petition sought a court order requiring the buyers’ attorney to pay the money to Teresa. Robert’s wife, Judith, filed an answer to the petition and contested issuance of the order. The court rejected Judith’s arguments and issued the requested order. Judith appeals this order, and Teresa moves to dismiss the appeal, contending that Judith has no standing to appeal because she was not a party to the action below.
Judith contends that she became a party to the action, an action between Teresa and Robert for dissolution of marriage, by “subjecting herself to the jurisdiction of the court.” The jurisdiction of the court can be exercised only within the scope of the pleadings in the action and, since these pleadings did not state a claim as against Judith, she cannot make herself a party to the action by merely appearing and defending on Robert’s behalf.
Judith also contends that she has standing to appeal the order because it affects her property rights in the fund. This is not so because we have determined that the order is ineffective to adjudicate title to the escrow fund.
Attachment is available to enforce a creditor’s rights only against “the goods and chattels, lands and tenements of his debtor,” language which does not include a fund of money. § 76.01, Fla.Stat. (1979). It further requires allegations that there is some danger that the property will be soon unavailable for levy of execution, or that the debtor is or will be unavailable; no such allegations were made here. See §§ 76.04, 76.05, Fla.Stat. (1979).
Teresa may enforce her judgment against the fund if she properly proceeds to obtain a writ of garnishment under chapter 77, Florida Statutes. In such event Judith will be able to assert her rights to the fund by becoming a party to the garnishment action under § 77.16, Florida Statutes (1979).
Since we have determined that the attachment order can give Teresa no rights against the escrow fund, and since Judith’s rights to the fund are not therefore affected by the order, her appeal is hereby dismissed.
ORFINGER and COBB, JJ., concur.
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Freeman v. Freeman, 447 So. 2d 963 (Fla. 1st DCA 1984)…So. 2d 746 (Fla. 2nd DCA 1969). The award of relief not sought by the pleadings is error. Hernandez v. Hernandez, 444 So. 2d 35 (Fla. 3rd DCA 1983). The jurisdiction of the court can be exercised only within the scope of the pleadings. Fine v. Fine, 400 So. 2d 1254 (Fla. 5th DCA 1981). Stephen’s out-of-court agreement did not excuse Glenda’s failure to plead facts justifying the court’s exercise of jurisdiction over the child. Nothing in the agreement placed the uncounselled husband on notice that a court ord…
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Mullne v. Sea-Tech Constr., Inc., 84 So. 3d 1247 (Fla. 4th DCA 2012)…ect the dots.” The judgment was void not because the complaint failed to state a cause of action as the defendant argued, but because the trial court was without jurisdiction to award relief that was not requested by the complaint. See Fine v. Fine, 400 So. 2d 1254, 1255 (Fla. 5th DCA 1981) (“The jurisdiction of the court can be exercised only within the scope of the pleadings in the action.... ”); Sterling Factors Corp. v. U.S. Bank Nat’l Ass’n, 968 So. 2d 658, 665 (Fla. 2d DCA 2007) (“A trial court’s lack of…
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In re The Est. of Helena Hatcher v. Dodd, 439 So. 2d 977 (Fla. 3d DCA 1983)…24 (Fla. 5th DCA 1982). Florida law clearly holds that a trial court lacks jurisdiction to hear and to determine matters which are not the subject of proper pleading2 and notice. Bartolucci v. McKay, 428 So. 2d 378 (Fla. 5th DCA 1983); Fine v. Fine, 400 So. 2d 1254 (Fla. 5th DCA 1981); Defreitas v. Defreitas, 398 So. 2d 991 (Fla. 4th DCA 1981). In short: If a court should render a judgment in a case where it had jurisdiction of the parties, upon a matter entirely outside of the issues made, it would, of neces…
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