GEORGE R. PACE, JR., APPELLANT,
v.
IDA BELLE PACE, APPELLEE
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This case concerns a modification of an alimony decree in a divorce proceeding. The Florida Supreme Court affirmed the chancellor's authority to modify a final divorce decree that provided for alimony in a lump sum ($15 per week for 100 weeks) by treating the modification petition as a bill of review and finding the original allowance was not fair and equitable.
The court held that while final decrees cannot ordinarily be changed except through recognized equity processes, a petition to modify an alimony decree may be treated as a bill of review, and the chancellor has authority to modify an alimony allowance upon proper showing that it is not fair and equitable, even if expressed as a lump sum.
“A final decree predicated on a decree pro confesso becomes absolute under Chancery Rule 45 and Section 3158, Rev. Gen. Stats. 1920... After the lapse of time as thus provided by rule and statute final decrees cannot be changed, added to, nor taken from, except as to the correction, nunc pro tunc of mere clerical errors or misprisions, without resorting to the recognized processes of equity, based upon appropriate grounds.”
Establishes the general rule that final decrees become absolute and cannot be modified except through proper equity procedures.
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Join FLexlaw to unlock all legal intelligenceThe appellee obtained a final divorce decree on July 11, 1928, which included alimony of fifteen dollars per week for one hundred weeks. On January 10…
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Terrell, C. J.
On July 11, 1928, appellee here, being complainant below, secured a final decree divorcing her from the appellant. The said final decree also provided alimony for the complainant in “the sum of fifteen dollars ($15.00) per week for one hundred weeks.” On January 10, 1929, appellee filed her petition praying for a modification of that part of the final decree granting alimony. On February 6, 1929, the chancellor entered his decree striking the words “for one hundred weeks” from that part of the final decree providing alimony and inserting in lieu thereof the words, “from date of this decree.” Appeal is taken from the latter decree.
A final decree predicated on a decree pro confesso becomes absolute under Chancery Rule 45 and Section 3158, Rev. Gen. Stats. 1920 (Section 4945, Comp. Gen. Laws 1927). Other final decrees become absolute under Chancery Rule 90 and Sections 3164 and 3165 Rev. Gen. Stats. 1920 (Sections 4956 and 4957, Comp. Gen. Laws of 1927). After the lapse of time as thus provided by rule and statute final decrees cannot be changed, added to, nor taken from, except as to the correction, nunc pro tunc of mere clerical errors or misprisions, without resorting to the recognized processes of equity, based upon appropriate grounds. Mabson v. Christ, 96 Fla. 756, 119 So. R. 131.
A bill or review predicated on errors apparent on the face of the record, must ordinarily be brought within the statutory period provided for taking an appeal. Zewadski v. Barksdale, 86 Fla. 552, 98 So. R. 590; Hall v. Hall, 93 Fla. 709, 112 So. R. 622.
It appears from the record that the bill of complaint herein was brought to correct and modify the final decree in so far as it related to alimony. It was brought within one day of the expiration of the time allowed for filing a bill of review in such causes. The chancellor found that the final decree providing for the payment of fifteen dollars per week for one hundred weeks, was an allowance in gross not conformable to the law of this State, that the same was not a fair and equitable allowance' for alimony and is contrary to public policy.
It is certain that the final decree cannot be reached and corrected on motion for rehearing because of the rule announced in Mabson v. Christ, supra, but we think the bill to correct and modify the final decree may be treated as a bill of review and since the chancellor found as a matter of fact that the allowance of fifteen dollars per week for one hundred weeks was not a fair and equitable allowance as alimony it was within his power to alter and modify said allowance on the proper showing. Mattair v. Card, 19 Fla. 455,-; Mitchell v. Mason, 90 Fla. 201, 106 So. R. 430. If fair and equitable, as a matter of law, we are aware of no reason why an allowance in gross as alimony should not stand. In the instant case, however, the chancellor on more mature consideration concluded that' a misapplication of the rule of law had been made to the facts in this case. He corrected his decree and it' is not made to appear that he committed error in doing so.
Affirmed.
Ellis and Brown, J. J., concur. Whitfield, P. J., and Strum and Buford, J. J., concur in the opinion and judgment.
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Cortina v. Cortina, 98 So. 2d 334 (Fla. 1957)…Civ.Proc., a divorce decree providing support for children is just as final as any other decree, as to all conditions and circumstances that existed as of the date of the decree. Sec. 65.15, Fla.Stat.1955, F.S.A. And as stated in Pace v. Pace, 1930, 99 Fla. 859, 128 So. 488, 489, “After the lapse of time as thus provided by rule * * *, final decrees cannot be changed, added to, nor taken from, except as to the correction, nunc pro tunc, of mere clerical errors or misprisions, without resorting to the recog…
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The Kippy Corp. v. Sherwood Colburn, 177 So. 2d 193 (Fla. 1965)…rules for corrective action in that court, we think the decision of the district court is also in conflict with Ramagli Realty Co. v. Craver, Fla.1960, 121 So. 2d 648; Cortina v. Cortina, Fla.1957, 98 So. 2d 334; Pace v. Pace, Fla.1930, 99 Fla. 859, 128 So. 488; Morrison v. Morrison, Fla.App.1960, 122 So. 2d 199; Batteiger v. Batteiger, Fla.App.1959, 109 So. 2d 602, and likes cases. In all of these cases the court either held that the trial court had no power to do anything to extend the time for taking ap…
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Rosalind Kranis v. Kranis, 313 So. 2d 135 (Fla. 3d DCA 1975)…divorce decree providing support for children is just as final as any other decree, as to all conditions and circumstances that existed as of the date of the decree. Sec. 65.15, Fla.Stat.1955, F.S.A. And as stated in Pace v. Pace, 1930, 99 Fla. 859, 128 So. 488, 489, ‘After the lapse of time as thus provided by rule * * *, final decrees cannot be changed, added to, nor taken from, except as to the correction, nunc pro tunc, of mere clerical errors or mis-' prisions, without resorting to the recognized proc…
Previewing 3 of 7 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Mabson v. Christ, 96 Fla. 756 (Fla. 1928)
- Hall v. Hall, 93 Fla. 709 (Fla. 1927)
- Mattair v. Card, 19 Fla. 455 (Fla. 1882)
- Zewadski v. J. M. Barksdale for Clyde Watkins and Clara Watkins, 86 Fla. 552 (Fla. 1923)
- Mitchell v. Mason, 90 Fla. 201 (Fla. 1925)