BEVERLY HEMRAJ, APPELLANT,
v.
GOORDIAL HEMRAJ, APPELLEE
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Florida appellate court reversed a dissolution judgment because the trial court failed to provide required findings of fact regarding alimony and used incorrect income figures in calculating child support. The court held that alimony was properly tried by implied consent despite not being specifically pleaded, requiring the trial court to address it on remand.
The trial court erred by denying alimony without required findings of fact. Although not specifically pleaded, alimony was properly tried by implied consent under Florida Rule of Civil Procedure 1.190(b) and must be addressed on remand. The child support award must also be reconsidered using correct income percentage figures.
[1] Issues not raised by the pleadings may be treated as if they had been raised if tried by express or implied consent of the parties.
[2] A trial court must make the findings of fact mandated by section 61.08(1), Florida Statutes, when denying alimony.
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Join FLexlaw to unlock all legal intelligence“when issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings.”
Establishes the legal principle allowing alimony to be tried despite not being explicitly pleaded, based on the parties' trial conduct.
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Join FLexlaw to unlock all legal intelligenceBeverly and Goordial Hemraj were parties to a dissolution of marriage proceeding. The wife's pretrial statement identified alimony as a disputed issue…
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STONE, Judge.
We reverse a final judgment of dissolution. In denying alimony, the trial court omitted the findings of fact mandated by section 61.08(1), Florida Statutes.
Although the pleadings do not contain a specific demand for alimony, that issue was clearly tried by implied consent. The wife’s pretrial statement provided for “nondeductible, non-reportable permanent periodic alimony,” as a disputed issue to be tried. That statement also listed “security” for alimony as an issue. The husband raised objections to portions of the wife’s pretrial statement, but none were directed to the alimony claim. In opening statements at trial, the wife’s lawyer argued for alimony and the husband’s lawyer argued against it on grounds of her alleged misconduct, but no question was raised concerning whether it was an issue before the court. In closing, the wife requested $800-$1,000 per month alimony and the husband’s attorney asserted that she was not entitled to it because she had chosen a low earning career and was guilty of adultery. Again, no question was raised concerning alimony as an issue.
Florida Rule of Civil Procedure 1.190(b) provides:
when issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings. Such amendment of the pleadings as may be necessary to cause them to conform to the evidence and to raise these issues may be made upon motion of any party at any time, even after judgment, but failure to so amend shall not affect the result of the trial of these issues....
We do note that in Cooper v. Cooper, 406 So. 2d 1223 (Fla. 4th DCA 1981), this court vacated an alimony award because no such relief was requested in the pleadings. However, in that case an objection to considering the issue was raised at trial, along with a claim of prejudice due to the absence of any notice. Obviously, these factors are not present in this case..
We also reverse the child support award for further consideration as the record reflects that the wrong percentage figures with respect to the wife’s income were used applying the child support guidelines. Additionally, on remand the trial court may review the alimony award with respect to the impact of the subsequent sale of the parties’ home. in As to all other issues raised, we find no error or abuse of discretion. The judgment is reversed and remanded for further proceedings.
GLICKSTEIN, C.J., and POLEN, J., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By (18 total)
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Todaro v. Todaro, 704 So. 2d 138 (Fla. 4th DCA 1997)…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. 4th DCA 1993). In Johnson, the former husband’s petition for modification requested a reduction in the amount of child support paid to the former wife and an elimination of the automatic annual adjustment of his annual gross income sinc…
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Smith v. Smith, 971 So. 2d 191 (Fla. 1st DCA 2007)…note that issues not raised by the pleadings nevertheless [*195] can be tried by express or implied consent and, in such instances, may be treated by the trial court as if they had been properly pled. See Fla. R. Civ. P. 1.190(b); Hemraj v. Hemraj, 620 So. 2d 1300, 1301 (Fla. 4th DCA 1993) (finding alimony issue was tried by implied consent in dissolution action, despite absence of pleadings specifically demanding alimony, where former wife’s pretrial statement listed alimony as a disputed issue to be tried,…
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Byers v. Callahan, 848 So. 2d 1180 (Fla. 2d DCA 2003)…se Former Wife raised a proper objection.”); Todaro, 704 So. 2d at 189 (“[I]t cannot be said that this issue was tried by implied consent where Former Wife objected to the trial court hearing matters that were not properly pled.”); Hemraj v. Hemraj, 620 So. 2d 1300, 1301 (Fla. 4th DCA 1993). Here, Byers consistently and repeatedly objected to any argument or evidence on the issue of the transitional alimony. Therefore, this issue was not tried by implied consent. Because the alleged error in the transitional…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Cooper v. Cooper, 406 So. 2d 1223 (Fla. 4th DCA 1981)