CATHERINE G. ARRINGTON, FORMERLY CATHERINE G. BROWN, APPELLANT,
v.
B. HOWARD BROWN, APPELLEE
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Catherine Arrington appeals the vacation of a child support arrearage judgment against her ex-husband B. Howard Brown. The trial court vacated the judgment claiming lack of jurisdiction based on alleged defective notice, but the appellate court reversed, finding that supplemental child support enforcement proceedings require only reasonable notice by mail to a party already within the court's jurisdiction from the original divorce decree.
The court held that supplemental proceedings to enforce child support provisions of a divorce decree require only reasonable notice affording an opportunity to be heard, which may be by mail. Because the parties were already within the court's jurisdiction from the original divorce proceeding, the sufficiency of notice should be tested by its reasonableness and the adequacy of the opportunity to defend, not strict compliance with formal service requirements.
“proceedings to increase, decrease or enforce the alimony or child support provisions of a divorce decree are by nature supplemental to the original decree and are merely a continuation of the original proceeding”
Establishes that child support enforcement is supplemental to the original divorce decree
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Join FLexlaw to unlock all legal intelligenceThe parties were divorced on August 25, 1949, with the decree awarding custody of their minor child to Arrington and requiring Brown to pay $50 per mo…
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Catherine G. Arrington (formerly Catherine G. Brown) appeals from an order vacating a judgment for child support entered April 10, 19S3, and ordering the sheriff to release the appellee’s automobile which had been .levied upon to satisfy said judgment.
The parties to this cause were divorced on August 25, 1949. The decree granted custody of the minor child to the appellant and required the appellee to pay $50 per month for support of said child.
On April 10, 1953, the chancellor, upon the appellant’s petition, entered judgment for the sum of $1,150 against the appellee for arrearage in child support payments. A certification and registered mail receipt indicate that notice of the hearing for the entry of the judgment was mailed to the ap-pellee at an out-of-state residence on April 2, 1953.
After a levy of execution on the judgment of April 10, 1953 had been obtained against a 1958 automobile belonging to the appellee, he sought by complaint in the nature of a bill of review to vacate and set aside the judgment of April 10, 1953 upon the ground that a fraud had been perpetrated on the court in that the appellee had never been served with process nor had he had notice of the proceedings, and therefore, the court lacked jurisdiction.
A hearing was had before the chancellor (the nature of which is not ascertained from the record) at which time the appellant filed a motion to dismiss and an answer. The chancellor thereupon, without benefit of testimony, entered the order from which this appeal is taken.
The basic jurisdictional question which the appellee raised was discussed and determined in the recent case of Kosch v. Kosch, Fla.1959, 113 So.2d 547, 550, where the Supreme Court said:
“* * * [Tjhat proceedings to increase, decrease or enforce the alimony or child support provisions of a divorce decree are by nature supplemental to the original decree and are merely a continuation of the original proceeding. The parties having been properly brought within the jurisdiction of the trial court at the outset, the supplemental proceeding which we have described can be bottomed on a reasonable notice which affords an opportunity to be heard. This notice may be by mail and its sufficiency in each particular instance should be tested by its reasonableness and by the adequacy of the opportunity afforded the opposing party to be heard and to defend himself or herself against the petition for modification.”
See also Marshall v. Bacon, Fla.1957, 97 So.2d 252; Watson v. Watson, Fla.1956, 88 So.2d 133; Thompson v. Thompson, 142 Fla. 643, 195 So. 571.
Applying the test of determining the sufficiency of the notice of hearing, we feel that the chancellor’s order was without sufficient basis in the record to justify the conclusion reached.
Accordingly, the order appealed from is reversed and the cause is remanded for further proceedings not inconsistent with the views expressed herein.
Reversed and remanded.
PEARSON and CARROLL, CHAS., JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Lyla Madolin Sikes v. Sikes, 286 So. 2d 210 (Fla. 1st DCA 1973)…(Fla.1960) 116 So. 2d 767. . Poliak v. Poliak, (Fla.App.1970) 235 So. 2d 512. . Kosch v. Kosch, (Fla.1959) 113 So. 2d 547, 550; Florida Family Law, § 33.41, Florida Bar Continuing Legal Education (2nd Ed. 1972) ; Arrington v. Brown, (Fla.App.1959) 116 So. 2d 461; 10A Fla.Jur. 467, § 343, Dissolution of Marriage, Etc.…
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Keathley v. ELB, 133 So. 2d 471 (Fla. 2d DCA 1961)…e adverse party be given adequate notice and so afforded an opportunity to be heard and defend himself. See Moore v. Lee, Fla. 1954, 72 So. 2d 280, 282, 42 A.L.R.2d 1112;. Watson v. Watson, Fla.1956, 88 So. 2d 133; .Arrington v. Brown, Fla.App.1959, 116 So. 2d 461. Additionally, there is the cardinal principle that a judgment upon a matter entirely outside the issues made by the pleadings cannot stand; and that, where an issue is not presented by pleadings or •litigated by the parties during hearing on the pl…
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Pitt Tyson Maner, Jr. v. Ingela Idfors Maner, 412 F.2d 449 (5th Cir. 1969)…ch, 118 So. 2d 547, 550 (Fla.1959). We hold that the arrear-age judgments of June 19, 1967 and February 2, 1968 do not offend Florida’s doctrine of fair notice. Id., Accord: Prensky v. Prensky, 146 So. 2d 604, 605 (Fla.App.1962); Arrington v. Brown, 116 So. 2d 461, 462 (Fla.App.1959).7 Consequently, we find that the district court correctly held that the judgments are entitled to enforcement. Affirmed. . The factual background of this dipute is reported sub nom. Maner v. Maner, 279 Ala. 652, 189 So. 2d 336…
Authorities Cited
- Kosch v. Kosch, 113 So. 2d 547 (Fla. 1959)
- Marshall v. Bacon, 97 So. 2d 252 (Fla. 1957)
- Thompson v. Thompson, 142 Fla. 643 (Fla. 1940)
- Watson v. Watson, 88 So. 2d 133 (Fla. 1956)