MILDRED JUNELLA TAYLOR, APPELLANT,
v.
CECIL TAYLOR, APPELLEE

Fla. 2d DCA | 1962-08-01
No. 3105
SHANNON, C. J., and SMITH, J., concur.
143 So. 2d 516 Florida District Court of Appeal, Second District (1962) Positive Treatment
Cited by 6 cases

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Synopsis

Mildred Taylor appeals an order modifying her divorce decree by reducing child support and alimony. The District Court of Appeal reversed because the trial court modified support obligations without affording the ex-wife an opportunity to be heard on the modification petition, violating due process requirements for alimony and support modifications.


Holding

The modification order was reversed because the trial court failed to provide the ex-wife an opportunity to be heard on the modification issue. A decree awarding alimony or support cannot be modified unless the modification issue is presented in an appropriate proceeding and both parties are given an opportunity to be heard.


Key Quotes

“An alimony or a support decree cannot be modified by a chancellor unless the issue of modification is presented to him in an appropriate proceeding and each party is given an opportunity to be heard on that issue.”

Establishes the core legal requirement for modifying support and alimony obligations; both parties must have opportunity to be heard in an appropriate proceeding.

Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.

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Facts & Procedural History

In 1958, Mildred Taylor obtained a final divorce decree providing for $40 per week child support for four children and $17.50 per week alimony. By Nov…

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

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Opinion of the Court
KANNER, Judge.

KANNER, Judge.

The order sought to be reviewed through this interlocutory appeal is one by which the court below modified the alimony and support provisions of the final decree of divorce which had been granted the wife, as plaintiff, in 1958. By the protested order, support payments for the four children were reduced from $40.00 to $28.00 weekly, or from $10.00 per week each to $7.00 per week, and the alimony of the wife from $17.50 to $14.50 weekly, or a total reduction from $57.50 per week to $42.50 for support and alimony.

On November 7, 1961, appellant had petitioned the court for a rule to show cause directed to the appellee husband because of arrearages in alimony, child support, insurance, and house mortgage payments specified in the final decree. On November 8, the husband filed petition for modification of the decree, dismissed by the court, and subsequently filed an amended petition for modification. On December 26, 1961, a hearing was held for consideration by the court of appellant’s petition for rule to show cause and appellee’s amended petition for modification. At this hearing, the only testimony adduced was that of appel-lee husband. The court adjudged appellee husband to be in arrearage in the sum of $385.00, found him to be not in contempt, then forthwith curtailed the alimony and support payments.

It is the position of the appellant wife that the testimony was taken in connection with the contempt rule and consequently the court erred in ordering modification without permitting testimony or cross-examination directed toward the petition for modification.

Illustrative of the procedure adopted by the court in its disposition of the two petitions are certain excerpts from the record. The hearing commenced on the petition for rule to show cause. Appellee husband’s attorney made inquiry of the court,

“MR. OSSELMEIER: Excuse me. Your Honor, I am at that point of interrogation on the Rule to Show Cause. Am I allowed to go into the other portions on the modification?”

and the court responded,

“THE COURT: At this time let him cross-examine and see what develops.”

Later, counsel for appellee husband inter7 posed,

“MR. OSSELMEIER: Your Hon- or, I object, this is only on the Rule to Show Cause.”

Following this, cross-examination by counsel for appellant wife proceeded; then counsel addressed the court,

“MR. THOMAS: I have nothing further in regard to the Petition for Rule to Show Cause for contempt, I *518have nothing further to say. I would like to be able to be heard on it, if we may — ”
“MR. OSSELMEIER: I would like to have redirect here, your Honor.”

A second redirect examination was granted, after which appellee’s counsel interj ected,

“MR. OSSELMEIER: May we proceed on the modification now, your Honor?”

Shortly thereafter, the court commented,

“THE COURT: Well, we are not on the Petition to Modify, we are still on your Rule to Show Cause.”

The court subsequently assessed the ar-rearage and ruled that the husband was not in contempt; then appellee’s counsel began a query,

“MR. OSSELMEIER: Your Honor, on the Modification, may we have — ”

and, interrupting, the court resolved the modification issue then and there,

“THE COURT: I am going to reduce it to $42.50.”

An alimony or a support decree cannot be modified by a chancellor unless the issue of modification is presented to him in an appropriate proceeding and each party is given an opportunity to be heard on that issue. Cortina v. Cortina, Fla.1957, 98 So.2d 334, 336. The chancellor, without doubt, considered that he was in position to make the ruling in the manner which he employed. From the quoted colloquy, however, it is obvious that appellant was not afforded her right to be heard upon the modification issue.

Accordingly, the order as to modification is reversed and the cause remanded to be heard on that phase.

Reversed.

SHANNON, C. J., and SMITH, J., concur.


Cases With Similar Vibessemantic neighbors from the corpus


Citator

Cited By

  • Smithwick v. Smithwick, 343 So. 2d 945 (Fla. 3d DCA 1977)
    …f either alimony or child support, and a trial judge is without jurisdiction to modify child support or alimony payments where no pleading is filed directed to modification thereof. See Cortina v. Cortina, 98 So. 2d 334 (Fla.1957); Taylor v. Taylor, 143 So. 2d 516 (Fla.2d DCA 1962); Goff v. Goff, 151 So. 2d 294 (Fla.3d DCA 1963); Lourcey v. Lourcey, 256 So. 2d 25 (Fla.1st DCA 1971); Purvis v. Carver, 303 So. 2d 681 (Fla.4th DCA 1974); Herbert v. Herbert, 304 So. 2d 465 (Fla.4th DCA 1974). Accordingly, those…
  • Lourcey v. Lourcey, 256 So. 2d 25 (Fla. 1st DCA 1971)
    …al. The defendant has not filed a brief, although plaintiff has perfected her appeal, including a brief. This case falls squarely before the ruling of the Second and Third District Courts of Appeal in the following cases, to wit: Taylor v. Taylor, 143 So. 2d 516 (Fla.App. 2nd, 1962) and Goff v. Goff, 151 So. 2d 294 (Fla.App.3rd, 1963), wherein both courts held that the chancellor was without jurisdiction to summarily change child support provisions of a divorce decree, which had becomé final where no pleadi…
  • Goff v. Goff, 151 So. 2d 294 (Fla. 3d DCA 1963)
    …cree. The chancellor was without jurisdiction, where no pleading directed to modification was filed, to summarily change the provisions of a decree which had become final. Cortina v. Cortina, Fla.1957, 98 So. 2d 334; Taylor v. Taylor, Fla.App. 1962, 143 So. 2d 516. It is also true that the chancellor may not reduce the amount already due for alimony and child support after these sums have become due and payable. He may refuse to enforce sums due by equitable process; but the sums remain due and if judgment i…

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