ELLEN GALE BATTEIGER, APPELLANT,
v.
KENNETH GEORGE BATTEIGER, APPELLEE
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In a divorce case, the court addresses whether the trial court retained jurisdiction to enter an amended final decree after the initial decree was signed and filed. The court held that the trial court did have jurisdiction to modify the final decree following consideration of a petition for rehearing, effectively treating the letters filed by both attorneys as tantamount to a petition for rehearing.
The court held that the trial court retained jurisdiction to modify the final decree. The letters filed by both attorneys were tantamount to a petition for rehearing, which keeps the court's jurisdiction alive during the rehearing period. A chancellor may modify a final decree after consideration of a petition for rehearing, and the ruling on such a petition will not be disturbed unless an abuse of discretion is clearly shown.
“It is a well recognized principle that the trial court loses jurisdiction of the case at the expiration of the time for filing a petition for rehearing or motion for new trial unless such petition or motion is filed.”
Establishes the general rule that trial courts lose jurisdiction absent a timely petition for rehearing or motion for new trial.
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Join FLexlaw to unlock all legal intelligenceA final decree of divorce was signed on April 10, 1958, and filed for record on April 16, 1958, which ordered the parties divorced and required the de…
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The only question presented by the appellant is whether the lower court had jurisdiction to enter an amended final decree. It is a well recognized principle that the trial court loses jurisdiction of the case at the expiration of the time for filing a petition for rehearing or motion for new trial unless such petition or motion is filed. Bartlett & Sons Co. v. Pan-American Studios, 144 Fla. 531, 198 So. 195; Jappe v. Heller, Fla.1953, 65 So.2d 302; Cf. Ray v. Ray, Fla.App.1958, 99 So.2d 721. This rule is subject to the exception that the trial court may correct clerical mistakes or mistakes arising from oversight or omissions at any time. Rule 1.38, Florida Rules of Civil Procedure, 30 F.S.A.
In the case appealed, a final decree of divorce was signed by the chancellor on April 10, 1958, and filed for record on April 16, 1958. The decree ordered that the parties be divorced from each other and that the appellee, defendant below, execute a deed conveying certain property, which the court found was purchased with plaintiff’s funds, to the plaintiff.
Two letters were filed simultaneously with the final decree.
One was written by the plaintiff’s attorney, addressed to the chancellor, and dated April 8, 1958. The letter stated that because of the case of Howell v. Howell, Fla.1958, 100 So.2d 170, “the court should grant the divorce specifically to one or the other party.” The writer contended that this case also stood for the proposition that the wife should be awarded the home.
The other letter was written by defendant’s attorney, addressed to the chancellor, and dated April 11, 1958. This letter stated that the position taken by plaintiff’s attorney in his letter was inconsistent with his position at trial, and suggested that in view of the Howell case the entire matter should be reconsidered at an informal conference. In the instant case, the original final decree failed to award the divorce specifically to one of the parties, which specific award is necessary under the decisions. Sahler v. Sahler, 154 Fla. 206, 17 So.2d 105; MacFadden v. MacFadden, 157 Fla. 477, 26 So.2d 502; Friedman v. Friedman, Fla.1958, 100 So.2d 167; Howell v. Howell, Fla.1958, 100 So.2d 170.
The actions of the attorneys as reflected by the record were tantamount to the filing of a petition for rehearing, inasmuch as the letters were obviously in response to an announced final decree. See Rule 3.16(a), 1954 Rules of Civil Procedure, 31 F.S.A. Cf. State ex rel. Roberts v. Bird, 101 Fla. 1229, 133 So. 84. It has been held that the proper function of a petition for rehearing is to present to the court some point which is overlooked or which the court failed to consider. See Mann v. Etchells, 132 Fla. 409, 182 So. 198. The ruling on a petition for rehearing will not be disturbed unless an abuse of discretion is clearly shown. Beasley v. Burnett, 140 Fla. 231, 191 So. 459; Hollywood, Inc. v. Clark, 153 Fla. 501, 15 So.2d 175.
We next turn to appellant’s contention that the chancellor lacked the juris*604diction to change the property provisions of the final decree after hearing was held on the informal petition for rehearing. The sufficiency of the evidence to support these findings has not been questioned. It is settled in Florida that a chancellor may modify a' final decree after consideration of a petition for rehearing. Hollywood v. Clark, supra; Burnup v. Bagley, Fla.1958, 100 So.2d 622.
Affirmed.
CARROLL, CHAS.; C. J., and HORTON, J., concur.
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The Kippy Corp. v. Sherwood Colburn, 177 So. 2d 193 (Fla. 1965)…ict 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 appeal or stated that a trial court has no authority to alter, modify or amend the substance of a final orde…
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Gen. Cap. Corp. v. TEL Serv. Co., Inc., 212 So. 2d 369 (Fla. 2d DCA 1968)…fter a judgment or final decree has been entered and the time for filing petition for rehearing or motion for new trial has expired or same has been denied. Davidson v. Stringer, 1933, 109 Fla. 238, 147 So. 228; Batteiger v. Batteiger, Fla.App.1959, 109 So. 2d 602; State ex rel. Seaboard Air Line R. Co. v. Kehoe, Fla.App.1961, 133 So. 2d 459, and Mid-State Homes, Inc. v. Ritchie, Fla.App.1966, 181 So. 2d 725. When a notice of appeal has been timely filed jurisdiction of the cause then vests absolutely in the…
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Bell v. Bell, 112 So. 2d 63 (Fla. 3d DCA 1959)…settled in Florida that a chancellor may modify a final decree after consideration of a petition for rehearing. Hollywood, Inc. v. Clark, 153 Fla. 501, 15 So. 2d 175; Burnup v. Bagley, Fla.1958, 100 So. 2d 622; Batteiger v. Batteiger, Fla.App.1959, 109 So. 2d 602. We turn now to a consideration of the assignments of error directed to the post decretal order by the wife as appellant. Subsequent to the amended final decree the husband became delinquent in alimony payments and failed to pay the attorney’s fee…
Previewing 3 of 19 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited (11 total)
- Tomazin v. Gessner, 153 Fla. 501 (Fla. 1943)
- Meta A. Sahler v. Eli I. Sahler, 154 Fla. 206 (Fla. 1944)
- Friedman v. Orrie M. Friedman, 100 So. 2d 167 (Fla. 1958)
- Jappe v. Heller, 65 So. 2d 302 (Fla. 1953)
- Etta C. Mann v. Etchells, 132 Fla. 409 (Fla. 1938)
- MacFadden v. Bernarr MacFadden, 157 Fla. 477 (Fla. 1946)
- Bartlett & Sons Co. v. Pan-American Studios, Inc., 144 Fla. 531 (Fla. 1940)
- Rosalyn RAY v. RAY, 99 So. 2d 721 (Fla. 3d DCA 1958)
- Beasley v. Burnett, 140 Fla. 231 (Fla. 1939)
- Howell v. Howell, 100 So. 2d 170 (Fla. 1958)