GLADYS L. WHITFIELD, APPELLANT,
v.
C. W. WHITFIELD, APPELLEE
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Gladys Whitfield appealed the dismissal of her divorce complaint against C. W. Whitfield. The court reversed, holding that a motion to dismiss hearing should be limited to facts alleged in the complaint, and that affirmative defenses (such as lack of capacity to marry) cannot be introduced at that stage.
The court held that the inquiry on a motion to dismiss hearing should be confined to facts alleged in the complaint, and affirmative defenses must be pleaded in an answer, not presented at the motion to dismiss stage. Even assuming the parties lacked capacity to marry, the complaint stated a cause of action for child support and for resolution of property rights in the residence.
“The inquiry on the hearing on motion to dismiss should have been confined to the facts alleged in the complaint.”
Establishes the fundamental procedural principle that governs motion to dismiss hearings
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Join FLexlaw to unlock all legal intelligenceGladys Whitfield sued C. W. Whitfield for divorce, alleging a nine-year common law marriage, two children in her custody, joint ownership of a residen…
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Gladys L. Whitfield sued C. W. Whitfield for divorce. She alleged a common law marriage of nine years duration; that two children born of the marriage, aged seven and six years, were in her custody; that the parties owned a residence as tenants by the entireties; that the defendant had been guilty of certain alleged acts of cruelty; a need for alimony and support, and that the defendant was employed; and she prayed for divorce, alimony and child support.
The defendant moved to dismiss the complaint for failure to state a cause of action. As shown by recitations in the subsequent order dismissing the cause with prejudice, evidence was presented at the hearing on the motion to dismiss that both parties were married previously and that neither appeared to have been divorced. Such facts were not alleged or shown on the face of the complaint or in any defensive pleadings.
The plaintiff has appealed from the order of dismissal, and contends (1) that on the hearing on the motion to dismiss *258the court should not have taken testimony on matters of affirmative defense, and (2) that on the evidence adduced, as disclosed on the order of dismissal, the complaint should not have been dismissed. We find merit in both contentions, and reverse the dismissal order.
The inquiry on the hearing on motion to dismiss should have been confined to the facts alleged in the complaint. Kathleen Citrus Land Co. v. City of Lake-land, 124 Fla. 659, 169 So. 356; Rudman v. Baine, Fla.App.1961, 133 So.2d 760. Affirmative defenses should be pleaded in answer to a complaint, and are not properly presented for trial on a hearing on motion to dismiss. Hough v. Menses, Fla. 1957, 95 So.2d 410; Stone v. Stone, Fla.App.1957, 97 So.2d 352; Fletcher v. Williams, Fla. App.1963, 153 So.2d 759. Moreover, even if the parties were lacking in capacity to contract a marriage, having lived together and produced offspring the mother was entitled to seek child support. The complaint set forth facts upon which relief could be granted, for child support and for resolution of the rights of the parties as tenants in common of the residence property which they had purported to acquire as tenants by the entireties. See Burger v. Burger, Fla.App.1963, 156 So.2d 905; Higgins v. Higgins, Fla.App. 1962, 146 So.2d 122.
Appellant’s motion for attorney fees is denied. This is done without prejudice to the plaintiff-appellant to apply therefor to the chancellor, if the chancellor determines that a marital status exists between the parties upon which to base her right to attorney fees; and jurisdiction to include an allowance of such fees for services in this court is hereby granted to the circuit court.
For the reasons stated the order of dismissal is reversed, and the cause is remanded for further proceedings not inconsistent herewith.
Reversed and remanded.
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Lisolette Burger v. Burger, 166 So. 2d 433 (Fla. 1964)…eeding pursuant to Section 65.04(9), supra, the chancellor also has the power to resolve problems incident to the custody and maintenance of children born of the “marriage”. Todd v. Todd, 151 Fla. 134, 9 So. 2d 279; Whitfield v. Whitfield, Fla.App., 161 So. 2d 256. Such children are innocent victims of the situation. They should not be deprived of the right to be supported merely because the parents have created the invalidating circumstances. The chancellor, therefore, ruled correctly in awarding a sum for t…
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Airport Sign Corp. v. Dade Cnty. & Richard Judy, 400 So. 2d 828 (Fla. 3d DCA 1981)…ank and Trust Company, 250 So. 2d 895 (Fla.1971); Ecological Science Corp. v. Boca Ciega Sanitary District, 317 So. 2d 857 (Fla. 2d DCA 1975); Temples v. Florida Industrial Construction Co., 310 So. 2d 326 (Fla. 2d DCA 1975); Whitfield v. Whitfield, 161 So. 2d 256 (Fla. 3d DCA 1964). Under the circumstances of this case, we hold it was error to dismiss the Sign Corporation’s second amended complaint with prejudice. Reversed and remanded for proceedings consistent with this opinion.…
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Staples v. Battisti, 191 So. 2d 583 (Fla. 3d DCA 1966)…nt and may not be asserted as grounds for motion to dismiss the complaint, even though availability may appear on the face of the complaint. Rules 1.8(d) and 1.11(b) Florida Rules of Civil Procedure, 30 F.S.A.; Whitfield v. Whitfield, Fla.App. 1964, 161 So. 2d 256; Carson v. City of Fort Lauderdale, Fla.App.1963, 155 So. 2d 620. It may be that Staples will not be able to prove his cause of action, or that the appellees will be able to prove their af- [*586] firmatlve defenses at trial. We must assume at this…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Kathleen Citrus Land Co. v. City of Lakeland, 124 Fla. 659 (Fla. 1936)
- Hough v. Menses, 95 So. 2d 410 (Fla. 1957)
- Stone v. Stone, 97 So. 2d 352 (Fla. 3d DCA 1957)
- Fletcher v. Williams, 153 So. 2d 759 (Fla. 1st DCA 1963)
- Higgins v. Higgins, 146 So. 2d 122 (Fla. 3d DCA 1962)
- Rudman v. Baine, 133 So. 2d 760 (Fla. 1st DCA 1961)
- Burger v. Liseiotte Burger, 156 So. 2d 905 (Fla. 3d DCA 1963)