JOHN THORNHILL TORCHIANA, APPELLANT,
v.
MURIEL MORGAN TORCHIANA, APPELLEE
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In this Florida divorce case, the court affirmed the divorce decree but reversed the award of the defendant's real property interest as alimony, holding that the defendant lacked proper notice that his Florida real property would be at issue and that the trial court exceeded its authority in awarding such property in lieu of lump sum alimony without adequate statutory notice.
The trial court had jurisdiction to enter the divorce decree based on sufficient compliance with the service by publication statute. However, the trial court lacked authority to award the defendant's Florida real property interest in lieu of lump sum alimony because the notice and complaint did not inform the defendant that his real property would be proceeded against or awarded to the plaintiff.
“There is nothing in the notice nor in the complaint itself to put the defendant on notice that his interest in the real estate in Florida would be proceeded against or that it might be awarded to the plaintiff in lieu of lump sum alimony.”
Establishes the critical deficiency in notice that prevented the trial court from having authority to award the property
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Join FLexlaw to unlock all legal intelligenceMuriel Morgan Torchiana sued John Thornhill Torchiana for divorce, custody of minor children, and alimony. Process was obtained by publication, and th…
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Appellee, plaintiff in the lower court, brought suit against the defendant, appellant here, seeking a divorce, the custody of the minor children, and for the court to “grant to the plaintiff lump sum permanent alimony, support and maintenance for the two children named above, full suit money and attorney fees at the time of the final determination hereof”. Process was obtained by publication. The defendant not appearing, a decree pro confesso was entered and thereafter the case proceeded ex-parte before the court. The testimony shows that the parties jointly owned real property in the State of Pennsylvania valued at approximately $67,800, and real property in Charlotte and Sarasota Counties, Florida, valued at approximately $38,500. The final decree was entered granting to the plaintiff a divorce, custody of the two children, and awarding to the plaintiff “in lieu of lump sum alimony, all his right, title and interest, by good and sufficient deed, in and to the following described lands” and there followed a description of the lands in the two counties in Florida. The decree further provided that upon the failure of the defendant to convey the property in accordance with the decree, the decree to operate as a conveyance. The defendant has appealed from this decree.
The errors complained of, being substantially two in number, are first, that the affidavit upon which the order of publication it predicated does not comply with the applicable statute, 48.04 F.S.1957, F.S.A., and second, that upon-the pleadings and the record, the trial court was without power to award to the plaintiff the defendant’s interest in the real property in this state in lieu of lump sum alimony. While the affidavit for process would not serve as a model it is, nevertheless, a sufficient compliance with the statute so as to give the court the necessary jurisdiction to enter the decree of divorce. The notice to defendant stated “you are hereby notified that a complaint *104for divorce has been filed against you” and required the defendant to answer on or before December 23, 1957. Section 48.08 F.S. 1957, F.S.A., provides, among other things, that the notice shall set forth “(4) the description of the real property, if any, proceeded against”. There is nothing in the notice nor in the complaint itself to put the defendant on notice that his interest in the real estate in Florida would be proceeded against or that it might be awarded to the plaintiff in lieu of lump sum alimony. Goode v. Goode, Fla., 76 So.2d 794. While the lower court was empowered to enter a decree of divorce, it was not authorized to award the defendant’s interest in the property in lieu of alimony in a lump sum settlement.
So much of the decree as grants the plaintiff a divorce is affirmed and otherwise reversed for further proceedings as may conform to law, the principles herein expressed, and in conformity with the prayer of the complaint for relief.
Affirmed in part and reversed in part.
KANNER, C. J., and ALLEN, J., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
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Hennig v. Hennig, 162 So. 2d 288 (Fla. 3d DCA 1964)…ived a copy of the complaint, in accordance with Rule 1.3(h) (i), Florida Rules of Civil Procedure, 30 F.S.A., we hold that failure to appropriately describe the real estate in the notice is jurisdictional. See: Torchiana v. Torchiana, Fla.App.1959, 111 So. 2d 103; Webb v. Webb, Fla.App.1963, 156 So. 2d 698. In the latter case, the following is found : * * * * * * “[4] Since the court did not have personal jurisdiction of the defendant and since, after the filing of the complaint, there was nothing done whi…
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Zelma M. Griffin v. Zinn, 318 So. 2d 151 (Fla. 2d DCA 1975)…ntly, the Wisconsin rule has apparently never been constitutionally tested in the federal courts. . See Annot., 10 A.L.R.3d, n. 3, supra. See also Nethery v. Nethery (Fla.App.1st, 1968), 212 So. 2d 10, and Torchiana v. Torchiana (Fla.App.2d, 1959), 111 So. 2d 103. . See Burkhart v. Burkhart (1940), 146 Fla. 457, 197 So. 730; Bowmall v. Bowmall (1937), 127 Fla. 747, 174 So. 14, and Webb v. Webb (Fla.App.3d, 1963, 156 So. 2d 698.…
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Lahr v. Lahr, 337 So. 2d 837 (Fla. 2d DCA 1976)…da Statutes requires that the notice of publication describe the realty which is the subject matter of the action. Florida Jai Alai, Inc. v. Lake Howell Water & Reclamation District, Fla.1973, 274 So. 2d 522; Torchiana v. Torchiana, Fla.App.2d 1959, 111 So. 2d 103. This court held in Griffin v. Zinn, Fla.App.2d 1975, 318 So. 2d 151, that the requirement for a description of the property which is to be affected by the judgment is of constitutional dimension. To satisfy the notice element of due process the co…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Mirle F. Goode v. Mollye B. Goode, 76 So. 2d 794 (Fla. 1954)