PEGGY GOFF, APPELLANT,
v.
JAMES KENNETH GOFF, APPELLEE
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In this interlocutory appeal from a divorce modification order, the Florida District Court of Appeal held that a trial judge lacked jurisdiction to summarily modify a final divorce decree without a proper pleading for modification, and could not retroactively reduce child support and alimony payments already due.
A trial judge lacks jurisdiction to modify a final divorce decree in the absence of a proper pleading for modification. Additionally, a judge may not reduce the amount already due for child support and alimony after these sums have become due and payable, though the judge may refuse to enforce such sums through equitable process.
“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.”
Establishes the core holding that modification of a final decree requires a proper pleading and cannot be done summarily.
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Join FLexlaw to unlock all legal intelligenceA final divorce decree was entered on August 31, 1962, ordering the defendant to pay $50 weekly for child support and $50 weekly for alimony. On Septe…
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This is an interlocutory appeal from an order entered by the trial judge at the conclusion of a hearing on a petition for rule to show cause.
A final decree of divorce was entered between the parties to this appeal on August 31, 1962. By the terms of this decree appellant, Peggy Goff, was granted a divorce and the defendant, James Kenneth Goff, was ordered to pay for child support the sum of $50.00 a week beginning July 9, 1962, and a like sum on the same day of each week until further order of the court. The appellee was required to pay alimony on the same basis. On September 18, 1962, the appellant filed her petition for rule to show cause alleging that under the final decree there was due her $700 for child support and alimony.
The chancellor entered a rule to show cause and set hearing thereon for September 26, 1962. No further pleadings of any *295kind were filed. At the conclusion of the hearing which was not reported, the chancellor entered an order which (1) dismissed the rule to show cause and (2) modified or altered the final decree in the following particulars:
“ORDERED, ADJUDGED and DECREED as follows:
"1. That the Rule to Show Cause he and it is hereby dismissed.
“2. That that portion of the Final Decree of Divorce herein entered by this Court on the 31st day of August, 1962, as to support and alimony to be paid by the Defendant be and it is hereby amended and shall read that the Defendant is to pay to the Plaintiff the sum of Twenty Dollars ($20.00) per week for the support of the minor child of the parties, and that the Defendant is to pay to the Plaintiff the sum of Twenty Dollars ($20.00) per week as alimony, said payments to be made on Saturday of each and every week.
“3. It is further ordered by this Court that the foregoing alimony and support payments are of a temporary nature.”
This appeal followed.
In the absence of a record, it must be presumed that there was testimony before the chancellor which convinced him that it would have been inequitable for him to enforce his rule to show cause. This ruling must be affirmed.
The quoted portion of the order appealed has two additional aspects. First, it modifies the decree of divorce which had become final and upon which no petition for rehearing was pending. Second, it reduces the indebtedness already accrued to the appellant-wife under the terms of the final decree. 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 is requested, they form an adequate basis for the entry of a judgment enforceable at law. Robinson v. Robinson, 154 Fla. 464, 18 So.2d 29. See Brenske v. Brenske, Fla.App.1963, 151 So.2d 58.
Therefore, that portion of the decree which attempts to modify and alter the terms of the final decree is reversed.
Affirmed in part and reversed in part.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Smithwick v. Smithwick, 343 So. 2d 945 (Fla. 3d DCA 1977)…udge 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 provisions of the judgment terminating alimony a…
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Carol Puglia & the Dep't of Health & Rehabilitative Servs. v. Puglia, 600 So. 2d 484 (Fla. 3d DCA 1992)…s clear that the mother is entitled to a judgment on the entire amount of the arrearages, the trial court may give the father an opportunity to pay the arrearages at a prescribed payment schedule. Guarino v. Guarino, 431 So. 2d at 190; Goff v. Goff, 151 So. 2d 294 (Fla. 3d DCA 1963). However, the failure to enter a judgment for the entire amount due constitutes error. Roffe v. Roffe, 404 So. 2d 1095 (Fla. 3d DCA 1981). [*486] Finally, the trial court ordered that $53.98 be deducted from the father’s income. S…
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Lourcey v. Lourcey, 256 So. 2d 25 (Fla. 1st DCA 1971)…intiff 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 pleading had been filed directed to modification of decree.…
Previewing 3 of 9 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Cortina v. Cortina, 98 So. 2d 334 (Fla. 1957)
- Robinson v. Robinson, 154 Fla. 464 (Fla. 1944)
- Christianna Vasthi Weathers Brenske v. Brenske, 151 So. 2d 58 (Fla. 3d DCA 1963)
- Taylor v. Taylor, 143 So. 2d 516 (Fla. 2d DCA 1962)
- Goff v. Goff, 151 So. 2d 295 (Fla. 3d DCA 1963)