WILLIAM THOMAS CONNOLLY, APPELLANT,
v.
LIZABETH CONNOLLY, APPELLEE
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.
A husband appealed from orders granting his wife temporary restraining orders, alimony, child support, and de facto child custody in a proceeding that was not anchored to a dissolution of marriage action. The court reversed, holding that such family law relief cannot be granted without proper pleadings requesting relief and that an injunction affecting property owned as a tenancy by the entirety cannot be issued outside a dissolution context.
The court held that it was error to award alimony, child support, de facto child custody, and to determine visitation rights without a pleading or prayer requesting such relief. The court also held that a court cannot grant an indefinite injunction affecting property owned as a tenancy by the entirety outside the context of a dissolution of marriage or appropriate independent action, as such property rights should remain equal during the continuation of the marriage.
[1] A court cannot award alimony, child support, custody, or determine visitation rights absent a pleading or prayer for such relief.
[2] A court commits fundamental error by granting an indefinite injunction that awards sole possessory or beneficial rights to property held as a tenancy by the entirety when…
Previewing 2 of 4 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“It was error to award the wife alimony, child support, de facto child custody, and to determine visitation rights when there was no pleading, prayer, or other predicate requesting such relief.”
Establishes the core holding that family law relief cannot be granted without proper pleadings requesting it.
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceHusband and wife owned a marital residence as a tenancy by the entirety and had a minor child. The husband filed a Motion for Temporary Restraining Or…
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.
Explore caselaw by topic → Browse Motion For Temporary Restraining Order cases and more on FLexlaw
WALDEN, Judge.
While the errors reflected are serious, and, in part, fundamental, we are of the opinion that they are not such as to merit a detailed discussion of law.
The dispute is between husband and wife with the husband being the appellant. The matter is exacerbated by the fact that the wife never filed any pleadings or prayers for relief in the trial court. Moreover, she has not filed a brief or participated in the appellate proceeding.
It appears that the parties owned a marital residence owned as a tenancy by the entirety. They had a minor child.
Things began when the husband filed his initial pleading in the trial court, his Motion for Temporary Restraining Order Without Notice. It was not ancillary, then or thereafter, to a dissolution of marriage action or any other cognizable independent action. Ultimately, an order was entered which enjoined the wife, until further order of the court, from coming on the marital domicile; from harassing the husband; and from removing any personalty jointly owned or owned by the husband. The husband, again without any pleadings or prayers for relief on the part of the wife, was ordered to pay the wife $100 weekly as child support and $100 weekly as temporary alimony. The wife never filed a financial affidavit or testified as to needs. Later this order was approved with the addition that the wife was prohibited from removing the minor child from the boundaries of the 17th Judicial Circuit (Broward County) and the husband was accorded specific visitation privileges. There was no pleading as concerns the child or visitation. Finally, the husband was adjudged in contempt of court because of his failure to pay certain sums for child support and alimony. This appeal ensued.
We hold the following:
1. It was error to award the wife alimony, child support, de facto child custody, and to determine visitation rights when there was no pleading, prayer, or other predicate requesting such relief. Zuckerman v. Professional Writers of Florida, Inc., 398 So. 2d 870 (Fla. 4th DCA 1981); Fla.R.Civ.P. 1.140(b); Tomasello, Inc. v. de Los Santos, 394 So. 2d 1069 (Fla. 4th DCA 1981); Fickle v. Adkins, 394 So. 2d 461 (Fla. 3d DCA 1981). The error was compounded when the husband was found in contempt of such order. 2. Although not raised, it was a fundamental error of which we choose to take sua sponte notice for the court to grant an indefinite injunction under Florida Rule of Civil Procedure 1.610 which, in effect, awarded the sole possessory or beneficial rights of property owned as a tenancy by the entirety to the husband when it was not ancillary to a dissolution of marriage or some other appropriate independent action. First, a court should not intrude into the marriage relationship and dictate the conduct of the marital partners toward each other and adjudicate their marital disputes unless and until such time as there is a proceeding instituted designed to terminate the marriage. Second, the attributes of an estate by the entireties are well known. See 12 Fla.Jur.2d Cotenancy and Partition §§ 10-24. It is predicated on the concept that husband and wife are one person in law. It is dependent on the marital relation for continuance, both spouses being considered equally interested in the res. So, while the marriage continues, as here, an interference with the estate or alteration is unfounded and the parties should be allowed to continue equally with their rights of ownership under such tenancy. Clawson v. Clawson, 54 So. 2d 161 (Fla.1951); Zook v. Zook, 63 So. 2d 642 (Fla. 1953); Junk v. Junk, 65 So. 2d 728 (Fla. 1953); Field v. Field, 68 So. 2d 376 (Fla. 1953); and Naurison v. Naurison, 108 So. 2d 510 (Fla. 3d DCA 1959).
We reverse the orders appealed and remand with instructions to dismiss the cause.
REVERSED and REMANDED with instructions.
HURLEY and DELL, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
-
Hart v. Hart, 458 So. 2d 815 (Fla. 4th DCA 1984)…2d 901, 903 (Fla.1981). Thus, the general rule is that a court cannot determine “matters not noticed for hearing and not the subject of appropriate pleadings.” Fickle v. Adkins, 394 So. 2d 461, 462 (Fla. 3d DCA 1981). See also Connolly v. Connolly, 448 So. 2d 641, 642 (Fla. 4th DCA 1984) (error to award alimony, child support, de facto child custody, and to determine visitation rights where there was no prayer, or other predicate requesting such relief). In Lentz v. Lentz, 414 So. 2d 292 (Fla. 3d DCA 1982),…
-
Bryan v. Bryan, 765 So. 2d 829 (Fla. 1st DCA 2000)…Additionally, given 'the nature of her pleadings and the rulings by the trial court, the appellee could not reasonably claim that the subject of determining a proper child-support amount was not raised and considered below. Cf. Connolly v. Connolly, 448 So. 2d 641, 642 (Fla. 4th DCA 1984) (trial court erred in awarding former wife alimony, child support, de facto child custody, and in determining visitation rights, absent a pleading, prayer, or other predicate requesting such relief). It was the appellee hers…
-
Allegra Enters., Inc. v. Fairchild, 455 So. 2d 1073 (Fla. 4th DCA 1984)…owing of irreparable harm or lack of an adequate remedy at law. Ranaghan v. Sullivan, 432 So. 2d 641 (Fla. 4th DCA 1983). 2. The injunction provided mandatory features not requested by movants, such as the return of the yacht. Connolly v. Connolly, 448 So. 2d 641 (Fla. 4th DCA 1984); Zuckerman v. Professional Writers of Florida, Inc., 398 So. 2d 870 (Fla. 4th DCA 1981). 3. The injunction order did not specify adequate reasons for its entry. Fla.R. Civ.P. 1.610(d). REVERSED and REMANDED. DOWNEY, DELL and W…
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
- Zuckerman v. Prof'l Writers OF Fla., Inc., 398 So. 2d 870 (Fla. 4th DCA 1981)
- Naurison v. Naurison, 108 So. 2d 510 (Fla. 3d DCA 1959)
- Tomasello, Inc. v. Santos, 394 So. 2d 1069 (Fla. 4th DCA 1981)
- Allstate Ins. Co. v. Anderson, 394 So. 2d 461 (Fla. 3d DCA 1981)
- Fickle v. Adkins, 394 So. 2d 461 (Fla. 3d DCA 1981)
- Clawson v. Clawson, 54 So. 2d 161 (Fla. 1951)
- Field v. Field, 68 So. 2d 376 (Fla. 1953)
- Zook v. Zook, 63 So. 2d 642 (Fla. 1953)
- Junk v. Junk, 65 So. 2d 728 (Fla. 1953)