BESSIE VIRGINIA PARRISH, APPELLANT,
v.
C. E. PARRISH, APPELLEE
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Appellant sought to enforce delinquent alimony and support payments under a 1950 divorce decree. The trial court awarded a money judgment for the arrearages but also modified the monthly payment amount without giving the appellant notice and opportunity to be heard on the modification issue. The appellate court affirmed the judgment for arrearages but reversed the modification for lack of procedural fairness.
The trial court did not abuse its discretion in awarding a money judgment for the arrearages, which is affirmed. However, the trial court erred in modifying the alimony and support payments without giving the appellant notice and opportunity to be heard on that issue, which is reversed.
“There can be no doubt that a Chancellor cannot modify a support decree, or any other decree, unless the issue of modification is presented to him in appropriate proceedings and each party is given an opportunity to be heard on such issue.”
Establishes the procedural requirement that a party seeking modification must receive notice and an opportunity to be heard
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Join FLexlaw to unlock all legal intelligenceA divorce decree entered October 26, 1950, provided for alimony and support payments to the appellant-wife. The appellee-husband became delinquent on …
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HORTON, Judge.
This is an appeal from an order awarding a money judgment in the sum of $6,-550 to the appellant for delinquencies or arrearages in alimony, and support pay ments provided for in a prior decree of divorce entered on October 26, 1950, and reducing the alimony and support allowance provided under said decree to $100 per month, and assessing costs and attorney’s fees against the appellee-husband.
The appellant complains of the entry of the decree appealed from upon two principal grounds: (1) that the lower court should have enforced payment of the delinquent alimony and support payments rather than entering a money judgment for the same; and (2) that the appellant was denied the opportunity to be heard upon the appellee’s amended answer seeking the modification where the same was filed after the testimony was concluded and the cause under advisement.
On the first point, there has been no abuse of discretion shown on the part of the chancellor in entering judgment for the appellant, and we hasten to point out that we are unable to see where she has been prejudiced in any respect by the entry of such judgment. The burden being upon the appellant to show wherein the lower court has committed error, and failing so to do, we must conclude that that portion of the decree appealed from is without error. The second question posed we feel has been conclusively answered by the Supreme Court of Florida in the case of Cortina v. Cortina, Fla.1957, 98 So. 2d 334, 336, where the court observed:
“There can be no doubt that a Chancellor cannot modify a support decree, or any other decree, unless the issue of modification is presented to him in appropriate proceedings and each party is given an opportunity to be heard on :such issue.”
Accordingly, that portion of the decree awarding judgment to the appellant for the arrearage due on the prior decree of divorce for alimony and support is affirmed, and that portion of the decree modi-fymg and reducing the monthly alimony and support payments is reversed.
Affirmed in part and reversed in part.
CARROLL, CHAS., C. J., and PEARSON, J., concur.
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Rosalind Kranis v. Kranis, 313 So. 2d 135 (Fla. 3d DCA 1975)…th reference to that issue, and in order that a record may be made for the benefit of a reviewing court if review should be sought. See Kurtz v. Kurtz, supra [112 Fla. 619, 150 So. 785]; Cortina v. Cor-tina, supra; Parrish v. Parrish, Fla.App. 1958, 99 So. 2d 715, 716; Ray v. Ray, Fla.App.1958, 99 So. 2d 721, 723; Tuttle v. Tuttle, 66 N.M. 134, 343 P. 2d 838.” Accordingly, the provisions of the order appealed from which thus modified tbe judgment as to visitation and child support are hereby reversed. The…
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Scheer v. Scheer, 132 So. 2d 456 (Fla. 3d DCA 1961)…nce is being directed to or with reference to that issue, and in order that a record may be made for the benefit of a reviewing court if review should be sought. See Kurtz v. Kurtz, supra; Cortina v. Cortina, supra; Parrish v. Parrish, Fla.App.1958, 99 So. 2d 715, 716; Ray v. Ray, Fla.App.1958, 99 So. 2d 721, 723; Tuttle v. Tuttle, 66 N.M. 134, 343 P. 2d 838. The record here shows strong mutual interest and love and affection between the children and their father. His paternal interest in them is even discl…
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Longo v. Longo, 245 So. 2d 658 (Fla. 4th DCA 1971)…a.1957, 98 So. 2d 334, which involved the amount of support and not the children’s welfare. That case rests on Lovett v. Lovett, 1927, 93 Fla. 611, 112 So. 768, which involved title to land. Cortina was followed in Parrish v. Parrish, Fla.App. 1958, 99 So. 2d 715, and Petrucci v. Petrucci, Fla.App. 1967, 199 So. 2d 516, Ray v. Ray, Fla.App.1958, 99 So. 2d 721, none of which involved a child’s welfare as this case does. In Scheer v. Scheer, Fla.App. 1961, 132 So. 2d 456, the Third District Court of Appeal hel…
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- Cortina v. Cortina, 98 So. 2d 334 (Fla. 1957)