JAMES GALLO, APPELLANT,
v.
LINDA A. GALLO APPELLEE
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In this dissolution of marriage appeal, the husband challenged a $2,000 award to the wife as compensation for lost interest on unpaid lump sum alimony. The court vacated the award, holding that the trial court lacked authority to modify the final judgment through a contempt proceeding without proper notice and an opportunity for both parties to be heard.
The court held that the $2,000 award was beyond the trial court's authority and constituted an improper modification of the final judgment. A contempt motion does not form a basis for modifying a final judgment, and modification can only occur in appropriate proceedings with proper notice and opportunity for both parties to be heard.
[1] A trial court cannot modify a final judgment of dissolution of marriage based solely on a motion for contempt.
[2] A court cannot modify a final judgment unless the issue of modification is presented in appropriate proceedings and each party is afforded an opportunity to be heard.
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Join FLexlaw to unlock all legal intelligence“A mere motion for contempt does not form the basis for modification of a final judgment.”
Establishes the core legal principle that contempt proceedings cannot be used to modify final judgments.
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Join FLexlaw to unlock all legal intelligenceThe final dissolution judgment awarded the husband the marital home and primary physical custody of the child, while granting the wife lump sum alimon…
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FRANK, Judge.
The appellant, the husband in this dissolution of marriage proceeding, has appealed from an order modifying the final judgment of dissolution of marriage and from a subsequent order in which the trial court refused to find him in contempt but did impose upon him the obligation to pay his former wife, the appellee, $2,000.00 as interest upon the unpaid lump sum alimony. We vacate the award of $2,000.00 to the appellee as “interest” on the unpaid lump sum alimony. The trial court was without authority to fashion such an award.
The final order dissolving the marriage directed shared parental responsibility for the child whose primary physical residence is with the appellant. The appellant was awarded the marital home and the appellee was granted lump sum alimony in an amount equalling one-half of the mortgage payments paid during the period of joint occupancy. The appellee was ordered to pay $150.00 per month to the appellant as her portion of the child support. Subsequently, the trial court decreased the lump sum alimony awarded the appellee to $10,-000.00. The appellant defaulted in the payment of the $10,000.00 and the appellee moved the trial court for an order adjudicating him in contempt. Ultimately, the appellant and the appellee agreed to an arrangement in which the appellee’s $150.00 per month child support payments would be credited against the $10,000.00 until the total of that amount is satisfied.
The trial court further determined “that since respondent [appellee] will not receive the alimony award in a lump sum and therefore [will] lose the income such lump sum could earn, that Respondent is entitled to an additional $2,000.00 to compensate for the loss of such income.”
Although the appellant has only contested the amount of the $2,000.00 award as excessive, we hold that such an award was beyond the trial court’s authority and hence, an improper modification of the final judgment. “A mere motion for contempt does not form the basis for modification of a final judgment.” Kordak v. Williams, 404 So. 2d 1137 (Fla. 4th DCA 1981).
There is no indication in the record before us that the appellee ever sought modification of the final order or that the appellant was aware that the contempt proceeding would result in a modification of the judgment. “A court cannot modify a decree unless the issue of modification is presented in appropriate proceedings and each party is afforded an opportunity to be heard on such issue.” Wallace v. Wallace, 413 So. 2d 1261 (Fla. 2d DCA 1982).
See also Sardinas v. Sardinas, 401 So. 2d 909 (Fla. 4th DCA 1981). Accordingly, we remand this case to the trial court to vacate that portion of its order awarding $2,000.00 to the appellee for lost interest upon the unpaid lump sum alimony. The appellee, of course, is not barred from seeking the trial court’s revisi-tation of this issue in an appropriate proceeding. In all other respects the trial court’s orders are affirmed.
SCHOONOVER, A.C.J., and LEHAN, J., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Authorities Cited
- Elida Pauline Sardinas v. Sardinas, 401 So. 2d 909 (Fla. 4th DCA 1981)
- Wallace v. Wallace, 413 So. 2d 1261 (Fla. 2d DCA 1982)
- Kordak v. Williams, 404 So. 2d 1137 (Fla. 4th DCA 1981)