WILLIE LEE COOPER, SR., APPELLANT,
v.
MAE FRANCE COOPER, APPELLEE
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In this dissolution of marriage appeal, the court reversed the trial court's award of permanent alimony and attorney's fees to the appellee wife because neither issue was properly pleaded or supported by adequate evidence, while affirming the remainder of the judgment.
The court held that judgments cannot be rendered on matters entirely outside the issues raised by the pleadings, and therefore the award of permanent alimony must be vacated. Additionally, an attorney's fee award requires substantial competent evidence including testimony from the attorney and expert testimony regarding the value of services, and the court vacated the $250 fee award due to insufficient predicate evidence.
[1] A judgment awarding alimony cannot stand if the pleadings do not contain allegations or a prayer for alimony.
[2] A trial court cannot award alimony when the issue has not been raised in the pleadings and no motion to amend the pleadings to conform to the evidence has been made.
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Join FLexlaw to unlock all legal intelligence“To be sure, a judgment based upon a matter entirely outside the issues made by the pleadings cannot stand.”
Establishes the fundamental rule that judgments must be confined to matters raised in pleadings
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Join FLexlaw to unlock all legal intelligenceAppellee Mae France Cooper's counterpetition in the dissolution action did not allege alimony or include a prayer for alimony. During trial opening st…
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PER CURIAM.
Appellant seeks reversal of those portions of a final judgment of dissolution whereby appellee was awarded permanent alimony and a reasonable attorney’s fee.
He first argues that permanent alimony should not have been awarded because appellee’s Answer and Counterpetition contain neither any allegation upon which an award of alimony could be made nor a prayer therefor. The record supports appellant’s contention. Appellee’s counsel first made reference to a claim for alimony during his opening statement: [W]e will request the Court award a lump sum alimony of the home to the wife.
In response to this claim appellant’s counsel, during his opening statement, objected.
MR. BOSWORTH: I would just like to point out, counsel has not pled any basis for alimony, whatsoever; nor has he requested it in his prayer for relief, answer, or his counterclaim, any award of lump sum alimony.
MR. BERKOWITZ: I have, Your Honor. MR. BOSWORTH: He has requested adjudication of property rights, not—
MR. BERKOWITZ: Well, paragraph seven, that the property is located as follows — the respondent asserts a certain equity in the real property. She has made all payments, maintenance and upkeep on the real property.
MR. BOSWORTH: When you are talking alimony, you are talking ability to pay and need. That’s not alleged.
MR. BERKOWITZ: We have asked for the Court to award the respondent alimony in this action.
THE COURT: Where is it? I am looking at your counter-petition. I don’t see any request of alimony.
MR. BERKOWITZ: Well, Your Honor, if the situation arises, I would make an ore tenus motion at the close of the evidence and amend my pleadings to conform with the evidence. However, at this point, I would just allege the special equity in the house.
MR. BOSWORTH: I would note a continuing objection at this point, then, to any evidence that is going to be coming in to show the need or ability to pay alimony. Obviously, we are going to have to investigate these issues, as far as child support is concerned; but when we are talking about alimony, I am not prepared to defend alimony. I would have taken depositions if I would have known alimony is being requested.
THE COURT: I will sustain the objection.
At the close of the evidence appellee’s counsel made no motion to amend the pleadings to conform to the evidence. Notwithstanding the foregoing, the trial court awarded the wife $100 per month as permanent alimony.
To be sure, 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 issue of alimony. Accordingly, we vacate that portion of the final judgment which awarded appellee permanent alimony.
Appellant’s second point is that there is no predicate in the record for the trial court’s award of a reasonable attorney’s fee in the sum of $250 to appellee’s counsel. We agree.
The only testimony presented was that of appellee when examined by her counsel:
Q. Mrs. Cooper, you have agreed to pay me a reasonable attorney’s fee, is that correct?
A. Right.
Q. Have you paid anything?
A. No. Q. Can you pay me anything?
A. Not today, I can’t.
An award of an attorney’s fee requires a predicate of substantial competent evidence in the form of testimony by the attorney performing services and by an expert as to the value of those services, Cohen v. Cohen, 401 So. 2d 463 (Fla. 4th DCA 1981). In the absence of such evidence, we vacate that part of the final judgment which awarded an attorney’s fee to be paid by appellant.
The remainder of the final judgment is affirmed.
AFFIRMED IN PART; REVERSED IN PART.
DOWNEY and GLICKSTEIN, JJ., and PEARSON, DANIEL S., Associate Judge, concur.
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Citator
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Rodriguez v. David Campbell, M.D., 720 So. 2d 266 (Fla. 4th DCA 1998)…vidence. [*268] Generally, when an attorney’s fee or cost order is appealed and the record on appeal is devoid of competent substantial evidence to support the order, the appellate court will reverse the award without remand. E.g., Cooper v. Cooper, 406 So. 2d 1223 (Fla. 4th DCA 1981); Warner v. Warner, 692 So. 2d 266, 268 (Fla. 5th DCA 1997). However, when the record contains some competent substantial evidence supporting the fee or cost order, yet fails to include some essential evidentiary support such as t…
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Tutor Time Merger Corp. v. MeCABE, 763 So. 2d 505 (Fla. 4th DCA 2000)…ce to support the attorney’s fee award, the appellate court will reverse the award without remand for additional evi-dentiary findings. Rodriguez, 720 So. 2d at 268 (citing Warner v. Warner, 692 So. 2d 266, 268 (Fla. 5th DCA 1997); Cooper v. Cooper, 406 So. 2d 1223 (Fla. 4th DCA 1981)). Here, the record contains no evidence whatsoever regarding the number of hours reasonably expended as a result of the discovery violations or a reasonable hourly rate; it contains only the trial judge’s response, when he was qu…
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Todaro v. Todaro, 704 So. 2d 138 (Fla. 4th DCA 1997)…sdiction to “hear and determine matters which are not the subject of appropriate pleadings and notice.” Defreitas v. Defreitas, 398 So. 2d 991, 992 (Fla. 4th DCA 1981); see Johnson v. Johnson, 546 So. 2d 97, 98 (Fla. 4th DCA 1989); Cooper v. Cooper, 406 So. 2d 1223, 1224 (Fla. 4th DCA 1981). However, when issues not raised by the pleadings are tried by implied consent, they are to be treated as if they had been raised in the pleadings. Fla. R. Civ. P. 1.190(b); see Hemraj v. Hemraj, 620 So. 2d 1300, 1301 (Fla.…
Previewing 3 of 25 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)
- James v. James, 374 So. 2d 1085 (Fla. 5th DCA 1979)