ELLEN E. MORTON, APPELLANT,
v.
ALAN MORTON, APPELLEE
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A party who accepts payments awarded in a final decree waives their right to appeal those specific awards.
The wife was awarded permanent alimony and child support in a final decree. She accepted these payments while appealing the decree.…
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Motion by the appellant for temporary-alimony while this case is on appeal.
The appellant, wife of the appellee, secured in a decree entered by the lower court the sum of $950 per month as permanent alimony and child support. Under the decision of Brooks v. Brooks, Fla.1958, 100 So.2d 145, in a special concurring opinion, Mr.. Justice Drew said:
“ * * * The wife, by accepting payment of sums awarded her in the final decree for alimony and expenses, waived the right to appeal from the decree with respect to such awards. 27 C.J.S. Divorce § 284, at page 1102. See also Stoneburg v. Stoneburg, 1935, 120 Fla. 188, 162 So. 334 and Larabee v. Larabee, 1935, 128 Neb. 560, 259 N.W. 520.”
The identical situation, as is here present, was present in Harris v. Harris, 67 App.D.C. 85, 89 F.2d 829.
Under the doctrine of Brooks v. Brooks, supra, and the cases therein cited, there will1 be many cases, where, as here, a wife, although being necessitous, will not be able tO' accept the decreed alimony while the case is being appealed. We are not able from the record before us on this motion to determine what would be a reasonable amount to allow as temporary alimony, but since the lower court determined the sum of $950 monthly to be a reasonable sum as. permanent alimony, we shall order such sum as temporary alimony to be due on the dates set forth in the decree appealed from. *473Should this appeal be affirmed, the amounts paid as temporary alimony shall be applied as payments due under the decree of the lower court.
Motion granted.
ALLEN, Acting Chief Judge, SHANNON, J., and SPOTO, I. C., Associate Judge, concur.
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Frischkorn v. Thomasine G. Frischkorn, 223 So. 2d 380 (Fla. 3d DCA 1969)…obligation to the wife after the date final judgment is entered; thus, payments made after this date, but pursuant to an order requiring temporary alimony pending appeal, goes toward discharge of that obligation. See Morton v. Morton, Fla.App.1958, 104 So. 2d 472. This court will also note, sua sponte, that any interest to be computed with regard to monies owing to the wife as a result of the final judgment, shall be based on the net amount owing to her, such amount having been determined in accordance with…
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Rankin v. Rankin, 275 So. 2d 283 (Fla. 2d DCA 1973)…obligation to the wife after the date final judgment is entered; thus, payments made after this date, but pursuant to an order requiring temporary alimony pending appeal, goes toward discharge of that obligation. See Morton v. Morton, Fla.App. 1958, 104 So. 2d 472.” Therefore, since there was a lump sum award here, the trial court should have credited against such sum the payments made pending the prior appeal. His failure to do so was error and the cause must be reversed and remanded for proceedings not inc…
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McKENZIE v. McKENZIE, 105 So. 2d 614 (Fla. 1st DCA 1958)…arge measure renders the supersedeas nugatory. These views are in accord with the doctrine of Brooks v. Brooks, Fla., 100 So. 2d 145, and cases cited therein, which was followed by the Second District Court of Appeal in the case of Morton v. Morton, 104 So. 2d 472. The motion is granted and an order will be entered allowing support money for the child pending this appeal in the amount fixed by the final decree, payable on the 10th day of each month, commencing July 10, 1958, and allowing $350 temporary attor…
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
- Stoneburg v. Stoneburg, 120 Fla. 188 (Fla. 1935)
- Brooks v. Brooks, 100 So. 2d 145 (Fla. 1958)
- McKell v. Jackson, 120 Fla. 185 (Fla. 1935)
- Harris v. Harris (D.D.C. 1937)