JOSEPH HORACE WRIGHT, APPELLANT,
v.
ISABEL ANITA WRIGHT, APPELLEE

Fla. 4th DCA | 1982-03-17
No. 81-283
LETTS, C. J., and BERANEK, J., concur.
411 So. 2d 1334 Florida District Court of Appeal, Fourth District (1982) Positive Treatment
Cited by 34 cases

AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.


Holding

A foreign divorce judgment that dissolves the marriage but does not have personal jurisdiction over a party cannot preclude a Florida court from adjudicating alimony, child support, and property rights.


Headnotes

[1] A foreign divorce judgment obtained without personal jurisdiction over a party does not preclude a Florida court from adjudicating alimony, child support, and property ri…

[2] A foreign divorce judgment that dissolves the marriage but leaves other issues unresolved does not bar a Florida court from adjudicating those remaining issues.

Previewing 2 of 5 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.

Join FLexlaw to unlock all legal intelligence

Facts & Procedural History

The parties divorced in Nevada, which only had constructive service over the wife. The wife then filed for divorce in Florida, seeking alimony, child …

The full statement of facts, procedural history, and disposition for this case are member content.

Join FLexlaw to unlock all legal intelligence

© FLexlaw, Inc. — AI-generated enrichments are proprietary. All rights reserved.


Opinion of the Court
DOWNEY, Judge.

DOWNEY, Judge.

Joseph H. Wright, respondent in a domestic relations case, seeks review of a final judgment awarding the appellee, Isabella A. Wright, alimony, child support, and the division of certain property.

The parties initially lived in Maryland, where they owned a home by the entireties. They also had a home in Pompano Beach where they spent time during the winter. Eventually, the appellee became ill and she, her mother, and the minor daughter of the parties came to live permanently in Florida in 1976. The appellant commuted from Maryland until April 1977, when the parties ceased living together. In May 1977, the appellee filed in the Broward County Circuit Court this suit for dissolution of marriage and for alimony, child support, and a division of the property owned by the parties. The appellant successfully evaded service of process until December 1977, when personal service of process was obtained upon him in Broward County. In the interim, however, the appellant had brought a suit for divorce in Nevada and had process served upon the appellee in Florida. The appellee did not appear in the Nevada proceedings and the judgment entered therein simply dissolved the marriage.

In the final judgment entered in the present proceedings the trial court found that the Nevada judgment dissolved the marriage between the parties but left unresolved all other questions pertaining to alimony, child support, and the existing property rights. Accordingly, the court awarded the wife alimony and child support retroactive to the date suit was filed in Florida and title to the Pompano Beach home. Appellant was awarded title to the Maryland home.

Appellant contends the trial court erred in entering the judgment for appellee in that the court lacked jurisdiction over the parties and the questions raised were res judicata in view of the Nevada judgment. The appellant further contends the amount awarded as alimony was error because the trial court made a distribution of the parties’ property under the auspices of Canakaris v. Canakaris, 382 So. 2d 1197 (Fla.1980), which, in fact, “short changed” appellant.

We reject the appellant’s first two points. Appellant’s reliance upon Overly v. Overly, 66 So. 2d 706 (Fla.1953), is misplaced. In that case Mr. Overly was served with process in the Wisconsin divorce action and filed an answer therein before he instituted a divorce action in Florida. The Wisconsin trial court entered final judgment before the Florida trial court did; thus the Florida Supreme Court held the Wisconsin judgment precluded an adjudication by the Florida trial court of matters already adjudicated in the Wisconsin forum.

Appellee was served in the Nevada proceedings by means of constructive service; she was never personally served with process in Nevada, nor did she ever participate in the Nevada proceeding. Thus, we hold that Nevada never had in personam jurisdiction over appellee and could not (and did not) adjudicate the alimony, child support, and property rights between the parties. See, e.g., Vanderbilt v. Vanderbilt, 354 U.S. 416, 77 S.Ct. 1360, 1 L.Ed.2d 1456 (1957); Pawley v. Pawley, 46 So. 2d 464 (Fla.1950); Storer v. Storer, 305 So. 2d 212 (Fla. 3d DCA 1975). Recognizing this to be the law, the learned trial judge proceeded to adjudicate the property rights of the parties in the Broward County litigation.

During the progress of this case appellant never paid appellee any alimony, and he paid only $50 per week pursuant to a Maryland Uniform Reciprocal Enforcement of Support Act (URESA) order. Appellant contends the trial court erred in awarding the wife child support and periodic alimony retroactive to the date appellant filed suit because the Nevada action and the URESA order barred such awards.

We hold the Nevada judgment and the URESA order do not preclude the award of retroactive alimony and child support. URESA by its terms has no effect upon such an award made by a court of this state. See Section 88.281, Florida Statutes (1979). Furthermore, as above indicated, the Nevada court had no jurisdiction to, and did not, adjudicate the issue of alimony and child support. But the appellant argues that there is no Florida authority for a court to award alimony and child support retroactively to the time of filing suit. We recognize that there is no such authority; we also recognize that there is no Florida authority prohibiting such an award. Moreover, courts of other states have spoken approvingly of awards of alimony that are retroactive to the date suit is filed. See Lowe v. Lowe, 28 A.D.2d 212, 284 N.Y.S.2d 227 (1967); Brown v. Brown, 34 A.D.2d 907, 311 N.Y.S.2d 467 (1970); Abrusci v. Abrusci, 79 A.D.2d 980, 434 N.Y.S.2d 722 (1981); Guy v. Guy, 27 N.C.App. 343, 219 S.E. 2d 291 (1975). On balance, we can see no reason not to allow a court in an appropriate case to make an award of alimony and child support retroactive. The failure to obtain a temporary award pendente lite may constitute a waiver or create an estoppel because of circumstances that transpire in the interim. However, absent such reasons we believe the trial court has that power. Appellant also complains that the award of alimony was excessive and beyond his ability to pay. The trial court relied to some extent upon appellant’s life style both prior to and during the litigation to make that award. We cannot say the amount set by the court constituted an abuse of discretion.

Finally, appellant does not attack the distribution of property as being beyond the trial court’s authority; he simply contends the distribution was not equitable in that it gave appellee too much. We disagree.

In view of the foregoing, the judgment appealed from is affirmed.

AFFIRMED.

LETTS, C. J., and BERANEK, J., concur.


Cases With Similar Vibessemantic neighbors from the corpus


Citator

Cited By (18 total)

  • Davis v. Rosman Charles Dieujuste, 496 So. 2d 806 (Fla. 1986)
    ….08(4), Florida Statutes (1977).2 If that was indeed the nature of the service of process in the original dissolution proceeding, the trial court was without jurisdiction to adjudicate the property rights of the parties. See, e.g., Wright v. Wright, 411 So. 2d 1334 (Fla. 4th DCA 1982); Lahr v. Lahr, 337 So. 2d 837 (Fla. 2d DCA 1976); Nethery v. Nethery, 212 So. 2d 10 (Fla. 1st DCA 1968); Hennig v. Hennig, 162 So. 2d 288 (Fla. 3d DCA), cert. denied, 166 So. 2d 754 (Fla.1964); Webb v. Webb, 156 So. 2d 698 (Fla.…
  • Alpert v. Alpert, 886 So. 2d 999 (Fla. 2d DCA 2004)
    …ncome during this twenty-one-month period. “A trial court may award retroactive alimony when appropriate.” Cleary v. Cleary, 872 So. 2d 299, 303 (Fla. 2d DCA 2004); see also Askegard v. Askegard, 584 So. 2d 47 (Fla. 1st DCA 1991); Wright v. Wright, 411 So. 2d 1334 (Fla. 4th DCA 1982). An award of retroactive alimony must be based on the receiving spouse’s need for alimony and the paying spouse’s ability to pay. See Schellhammer v. Schellhammer, 687 So. 2d 987, 989 (Fla. 5th DCA 1997); Hodge v. Hodge, 607 So.…
  • Helmick v. Helmick, 436 So. 2d 1122 (Fla. 5th DCA 1983)
    …tatutes (1981), provides: Effect of participation in proceedings. — Participation in any proceeding under this act does not confer jurisdiction upon any court over any of the parties thereto in any other. proceeding. . See, e.g., Wright v. Wright, 411 So. 2d 1334 (Fla. 4th DCA 1982); Grosse v. Grosse, 347 So. 2d 1099 (Fla. 2d DCA 1977). . See, e.g., Vecellio v. Vecellio, 313 So. 2d 61 (Fla. 4th DCA 1975); Clark v. Clark, 139 So. 2d 195 (Fla. 2d DCA 1962). . Clark v. Clark, 139 So. 2d 195 (Fla. 2d DCA 1962)…
    1 / 2

Previewing 3 of 18 citing cases — full citator treatment, depth of discussion, and citing context are member features.

Join FLexlaw to unlock all legal intelligence

Authorities Cited

Full citator, related cases, and AI research tools

Open in FLexlaw