JOSEPH WEISS, APPELLANT,

v.

ETHEL WEISS, APPELLEE

Fla. 3d DCA | 1960-03-23

No. 59-724

HORTON, C. J., and PEARSON, J., concur.

118 So. 2d 833 Florida District Court of Appeal, Third District (1960) Positive Treatment

Cited by 18 cases

AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.

Holding

An ex-wife cannot seek alimony through modification if the final divorce decree denied alimony and did not reserve jurisdiction to award it later.

Facts & Procedural History

A 1952 final divorce decree denied the wife alimony and reserved no jurisdiction. In 1959, the wife petitioned to modify the decree to award her alimo…

The full statement of facts, procedural history, and disposition for this case are member content.

Join FLexlaw to unlock all legal intelligence

Topics

Modification Of Divorce Decree Alimony Award Reservation Of Jurisdiction

Explore caselaw by topic → Browse Modification Of Divorce Decree cases and more on FLexlaw

Opinion of the Court

CARROLL, CHAS., Judge.

This is an interlocutory appeal from a post final decree order granting alimony to an ex-wife.

In 1952 a final decree was entered in the circuit court in Dade County which granted the husband a divorce, awarded Him custody of the minor child of the parties, and denied the wife’s counterclaim and her application for alimony. No alimony was allowed in the final decree,1 and there was no reservation of jurisdiction therein for any purpose.2

In October of 1959 the ex-wife filed a petition to modify the decree “so as to award and grant alimony to the defendant [ex-wife] from the plaintiff [ex-husband].” The chancellor granted the ex-wife’s petition and awarded her certain alimony. In that order the chancellor found that the court had “retained jurisdiction through this cause to modify the final decree previously entered regarding the question of alimony.”

As the final decree made no provision regarding alimony and made no reservation of jurisdiction, the chancellor’s finding had reference presumably to a reservation made in an order entered after the final decree which effected a partial change of custody and granted a certain allowance to the wife during the time she had possession of the child under that order, imposed a condition on her custody and reserved jurisdiction to make further conditions.3 By a further order, in *8351955, the sole custody was returned to the child’s father. Thus, the chancellor’s finding that jurisdiction was reserved under the final decree to later award alimony was without basis or support on the record.

The order appealed from was not an authorized modification under § 65.15, Fla.Stat., F.S.A., as it relates to modification of decrees for alimony, for the reason that the statute provides for modification as to alimony only where alimony has been created by agreement or previously awarded by a decree of the court. That is plain from the wording of the statute; See Kirby v. Kirby, Fla.App. 1959, 111 So.2d 299.

Following a divorce decree which does not allow her alimony and which does not reserve jurisdiction to award alimony later, an ex-wife has no standing in a court of equity to apply for alimony. See Gedney v. Gedney, 117 Fla. 686, 158 So. 288; Kennard v. Kennard, 131 Fla. 473, 179 So. 660; Tenny v. Tenny, 147 Fla. 672, 3 So.2d 375; Kirby v. Kirby, supra, Fla.App. 1959, 111 So.2d 299; Carson, Florida Law of the Family, Marriage and Divorce 667 (1950).

Accordingly, the order appealed from is reversed.

Reversed.

HORTON, C. J., and PEARSON, J., concur.

. The final decree provided as follows:

“Ordered, Adjudged and Decreed as Follows:

“1. That this Court has jurisdiction of this cause, the parties hereto, and the subject matter hereof.

“2. That the report of the Special Master in Chancery be and the same is hereby ratified, confirmed and approved.

“3. That a Decree of Divorce, a vinculo matrimonii, be and the same is hereby granted to the plaintiff, Joseph Weiss, of and from the defendant, Ethel Weiss, and the bonds of matrimony heretofore existing between the said plaintiff and defendant be, and they are hereby forever dissolved, and each of the said parties is forever free from the obligations thereof.

“4. That the care, custody and complete control of the minor child, Michael Sigmund Weiss, be and the same is hereby awarded to the plaintiff, subject, however, to reasonable rights of visitation by the defendant.

“5. That the plaintiff be required to pay to the defendant’s attorney the amount of $400.00 Dollars as a reasonable attorney’s fee.

“6. That the fee of the Special Master shall be set at $100.00 Dollars.

Done and Ordered in Chambers at Miami, Dade County, Florida, this 17th day of December, A.D.1952.”

.The subsequent order amending the decree as to custody was as follows:

“This Cause coming on to be heard on the defendant’s Petition for Rehearing, and the Court having heard the testimony of the plaintiff, and the defendant, and *835the arguments of counsel and due deliberation having been had, it is

“Adjudged, Ordered and Decreed that the Final Decree in this cause entered on December IT, 1952 be and the same is hereby amended in the following wise:

“That the care, custody and control of the minor child of the parties, Michael Sigmund Weiss, be and the same is hereby divided equally between the plaintiff and the defendant, subject always to reasonable rights of visitation to the other, and the division is made as follows:

“1. For a period of three months from the date of this Order the said minor child is awarded to the care, custody and control of the defendant, Ethel Weiss, and for the ensuing three months to the plaintiff, Joseph Weiss, and thereafter in equal three monthly periods.

“2. That during the time that the care, custody and control of the child is with the defendant, Ethel Weiss, the plaintiff is ordered and directed to pay into the register of this Court for the use and benefit of the defendant, Ethel Weiss, the sum of Thirty ($30.00) Dollars per week commencing with the date of this decree. During such time as the child is with the plaintiff no sum shall be due and payable to the defendant.

“3. That the said child shall not be removed from the jurisdiction of this Court without the consent of this Court in writing upon notice to all parties.

“4. That this Court retains jurisdiction of the cause to make such other conditions as shall be mete.and proper.”

Cases With Similar Vibessemantic neighbors from the corpus

Citator

Cited By

Dings v. Gwladys H. Dings, 161 So. 2d 227 (Fla. 3d DCA 1964)

…at the plaintiff-wife is self-supporting, this court finds that there is no need for alimony unto the plaintiff-wife and, therefore, no award is made to the plaintiff.” . Sehiff v. Schiff, Fla.App.1960, 123 So. 2d 295; Weiss v. Weiss, Fla.App.1960, 118 So. 2d 833.…
Schiff v. Schiff, 123 So. 2d 295 (Fla. 3d DCA 1960)

…cial assistance from the husband whose duty it is to support her, in the event of a change in her circumstances which might render her unable to continue to teach music. See Kirby v. Kirby, Fla.App.1959, 111 So. 2d 299; Weiss v. Weiss, Fla.App.1960, 118 So. 2d 833. The amount of $15 per week which the court allowed in this case for child support would appear to be inadequate on its face for the care and maintenance of the 7 year old daughter. The husband’s ob [*297] ligation to support of the child is clear,…
Brown v. Brown, 338 So. 2d 916 (Fla. 2d DCA 1976)

…se of Petition for Modification.” Where there is no provision for alimony in a judgment of dissolution and no reservation of jurisdiction for this purpose, the court is without jurisdiction to later entertain a petition for alimony. Weiss v. Weiss, 118 So. 2d 833 (Fla.3d DCA 1960). On the other hand, even if the final judgment does not contain a provision for alimony, jurisdiction may properly be reserved to consider a petition for alimony at a later date. Poe v. Poe, 263 So. 2d 644 (Fla.3d DCA 1972). Where…

Previewing 3 of 9 citing cases — full citator treatment, depth of discussion, and citing context are member features.

Join FLexlaw to unlock all legal intelligence

Authorities Cited

Mathias M. Gedney v. Gedney, 117 Fla. 686 (Fla. 1934)
Kennard v. Kennard, 131 Fla. 473 (Fla. 1938)
Tenny v. Tenny, 147 Fla. 672 (Fla. 1941)
Kirby v. Kirby, 111 So. 2d 299 (Fla. 1st DCA 1959)

Full citator, related cases, and AI research tools

Open in FLexlaw