MARJORIE E. KEATHLEY, FORMERLY MARJORIE E. ELB, APPELLANT,
v.
ROBERT WALTER ELB, APPELLEE

Fla. 2d DCA | 1961-10-04
No. 2462
ALLEN, Acting C. J., and WHITE, J., «concur.
133 So. 2d 471 Florida District Court of Appeal, Second District (1961) Positive Treatment
Cited by 8 cases

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Synopsis

In this family law appeal, the Florida District Court of Appeal reverses a modification of child support payments, holding that the lower court lacked proper procedural foundation to reduce support and failed to provide the former wife adequate notice and opportunity to be heard on the modification issue.


Holding

The modification order is reversed and vacated. When modification of support provisions in a divorce decree is sought, the adverse party must receive adequate notice and an opportunity to be heard. A judgment on an issue entirely outside the issues made by the pleadings cannot stand, and a decree adjudicating an unlitgated issue is at least voidable on appeal.


Key Quotes

“When modification is sought of support provisions contained in a divorce decree, it is necessary that the adverse party be given adequate notice and so afforded an opportunity to be heard and defend himself.”

Establishes the fundamental due process requirement for modifying child support orders

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Facts & Procedural History

The parties were divorced on June 20, 1958, with the divorce decree providing that defendant pay $20 per week for the couple's minor child. Following …

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Opinion of the Court
KANNER, Judge.

KANNER, Judge.

Asserting that the chancellor erred in entering an order to modify a child support decree, plaintiff protests through this appeal that modification was not made an issue before the court and that plaintiff was not given an opportunity to be heard in that regard.

The parties to the cause were divorced, with final decree being entered on June 20, 1958. Pursuant to stipulation between the parties, the decree provided that defendant pay $20 per week for support of the. couple’s minor child. It was also provided that the juvenile court administer enforcement of the payments as authorized by chapter 30258, General Laws of Florida, 1955. Through chapter 59-784, General Laws of Florida, 1959, chapter 30258 was-repealed with the provision being made that, as to all cases pending or payments being made to a juvenile court, these should continue to be handled by those courts until January 1, 1960, unless, by juvenile court order prior to that time, such case or cases were returned to the chancery court. The act provided that such payments should thereafter be made to the clerk of the circuit court for disbursement. These mentioned acts relate to counties coming within a specified population bracket, Hillsborough County being one of them. There is no attempt in the 1959' enactment to provide for a prescribed procedure for change of support payments.

Pursuant to the provisions of chapter 59-784, the juvenile judge through order dated September 30, 1959, returned the case to the circuit court, directing that all subsequent support payments should be made to the clerk of the circuit court. The clerk filed and docketed in the original case under date of January 18, 1961, a “Report of Delinquent Child Support Account Division B” showing the style of the suit, names and addresses of plaintiff and defendant, and the amount delinquent to that date. At the end of the report, it was stated that this notice was being submitted at the request of the plaintiff.

In January of 1961, the circuit court, based upon the above certificate of the clerk, ordered defendant to show cause why he should not be adjudged in contempt of court for having failed to pay $205 support money then in arrears. About two weeks later, the chancellor entered an order modifying support payments, reducing them from $20 per week to $10 per week until May 1, 1961, stating as his reason that the court was advised that plaintiff and the child for whom support was paid were then residing in Tennessee and that defendant was attempting to establish his practice *473as a chiropractor and needed three months in which to obtain clients. Plaintiff filed motion for rehearing, which was granted and lated denied.

No motion nor petition was made by ■defendant, nor was any basis laid by his applying to the court for reduction of support money. No notice was given plaintiff, ■either that defendant would apply to the eourt for a reduction or as to the contempt hearing. The result of the contempt proceeding was the court’s order modifying the support decree.

When modification is sought of •support provisions contained in a divorce decree, it is necessary that the 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 pleadings as made, a decree adjudicating such issue is at least voidable on appeal. Cortina v. Cortina, Fla.1957, 98 So. 2d 334.

The chancellor’s order for modifi■cation flowed out of a show cause order in a contempt proceeding confined solely to the question of defendant’s support payment arrearage. Hence, there was no foundation in the pleadings for reduction, nor was the plaintiff afforded an opportunity to be heard upon the matter thus resolved by the chancellor. Accordingly, the order is reversed and vacated.

Reversed.

ALLEN, Acting C. J., and WHITE, J., «concur.


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Citator

Cited By

  • Alfred S. Austin Constr. Co., Inc. v. Abe Namia, 220 So. 2d 36 (Fla. 2d DCA 1969)
    …g C. J., and PIERCE, J., concur. . See, e. g., Hart Properties, Inc. v. Slack (Fla.1963), 159 So. 2d 236; Lamb v. Jones (Fla.App.3d 1967), 202 So. 2d 810; Neveils v. Thagard (Fla.App.1st 1962), 145 So. 2d 495; and Keathley v. Elb (Fla.App.2d 1961), 133 So. 2d 471. . See Neveils v. Thagard, supra.…
  • In the Interest of MY, 162 So. 2d 551 (Fla. 3d DCA 1964)
    …ses cited below that amounted to a denial of due process of law. Lovett v. Lovett, 93 Fla. 611, 112 So. 768, 775-776; Gruber v. Cobey, 152 Fla. 591, 12 So. 2d 461, 462; Cortina v. Cortina, Fla.1957, 98 So. 2d 334, 337; Keathley v. Elb, Fla.App.1961, 133 So. 2d 471, 473; Robinson v. Malik, Fla.App.1961, 135 So. 2d 445. Cf. Bryant v. Bryant, 101 Fla. 179, 133 So. 635; Kurtz v. Kurtz, 112 Fla. 619, 150 So. 785. Accordingly the custody order appealed from is reversed, and the cause is remanded with directions to…
  • Emilie S. Petrucci v. Petrucci, 199 So. 2d 516 (Fla. 3d DCA 1967)
    …here was no pleading before it upon which to adjudicate the matters set forth in paragraphs numbered 2, 3 and 4 of the order. See Cortina v. Cortina, Fla.1957, 98 So. 2d 334; Goff v. Goff, Fla.App.1963, 151 So. 2d 295; Keathley v. Elb, Fla.App.1961, 133 So. 2d 471. Upon authority of the cases cited, paragraphs numbered 2, 3 and 4 of the judgment portion of the order of November 14, 1966 are reversed. Reversed.…

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