RUTH CROSSMAN CLAUS, APPELLANT,
v.
EDWIN F. CLAUS, APPELLEE
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A wife appealed a divorce decree but accepted alimony payments for several months after the decree was entered. The court dismissed the appeal, holding that voluntary acceptance of benefits under a divorce decree estops a party from appealing to challenge the decree's provisions, absent timely application to the trial court for alimony pending appeal under the applicable rule.
The court held that a party who voluntarily accepts benefits of a judgment or decree is estopped from seeking reversal thereof on appeal. The estoppel applies even in divorce cases unless the appellant makes timely application to the trial court under Rule 3.8(b) for alimony pending appeal prior to accepting benefits under the decree.
“Implicit in the rule is the conclusion that if alimony awarded to a wife in a final decree of divorce is accepted by her as such, she is estopped to question either that or any other provision of the final decree by appeal.”
Establishes the core principle that accepting alimony under a divorce decree operates as an estoppel to appeal the decree.
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Join FLexlaw to unlock all legal intelligenceA final divorce decree was entered on October 18, 1963, providing for alimony payments to the wife. The wife accepted alimony payments over several mo…
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Appellee seeks dismissal of this appeal on the ground that appellant has accepted all benefits of the final decree of divorce entered October 18, 1963, including alimony *27payments over a period of several months following that date and payment of the fee allowed for the services of her attorney.
In Carter v. Carter, Fla.App., 141 So.2d 591, we dismissed the wife’s appeal on the authority of McMullen v. Fort Pierce Financing & Construction Co., 108 Fla. 492, 146 So. 567. Wigginton, J., speaking for the court, pointed out that Rule 3.8(b), Florida Appellate Rules, was amended on July 7, 1961, 31 F.S.A., so as to enable an appellant wife, upon motion to and order of the trial court, to receive subsistence pending an appeal from a divorce decree without becoming estopped to question the provisions of the decree, and in that connection said:
“Implicit in the rule is the conclusion that if alimony awarded to a wife in a final decree of divorce is accepted by her as such, she is estopped to question either that or any other provision of the final decree by appeal.”
Adhering to the rule in Carter, we dismissed the appeal in Rayle v. Merrill, Fla. App., 141 So.2d 288, holding there that one who voluntarily accepts the benefits of a judgment or decree is estopped from seeking reversal thereof on appeal; that such conduct amounts to a release of errors.
Appellant’s reply to the instant .motion to dismiss admits that she accepted the mentioned payments and reflects that on April 1, 1964, she filed in the lower court a motion for an order fixing the amount and conditions of a supersedeas bond and on April 2, 1964, filed a motion to require the appellee, pending the appeal, to continue the payment of alimony in such amounts and under such terms and conditions as may be just and equitable. On April 2, 1964, said motions were denied.
Appellant’s reply to the motion to dismiss incorporates a motion praying that this court enter an order pursuant to Florida Appellate Rule 3.8(b) and Rule 5.10 requiring the appellee, pending this appeal, to continue the payment of alimony in such amount and under such terms and conditions as may be just and equitable. It is not shown that the trial court abused its discretion in denying appellant’s belated motion under Rule 3.8(b) and Rule 5.10 has no application to the situation under consideration. Said motion is denied.
In order to escape the rule announced in Carter v. Carter, supra, and obtain the relief contemplated by F.A.R. 3.8(b), it is necessary to make timely application to the trial court for payment of separate maintenance, support or alimony-pending an appeal from a final decree providing benefits as in this case. Where it manifestly appears that appellant has failed to so apply and has accepted the benefits of the decree appealed, as is the situation in the instant case, she is estopped to maintain the appeal. Accordingly, appellee’s motion should be and it is granted, and this appeal is hereby
Dismissed.
WIGGINTON and RAWLS, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Bennett Stewart Fort v. Fort, 167 So. 2d 315 (Fla. 1st DCA 1964)…estopped to question either that or any other provision of the final decree by appeal.” (Emphasis supplied.) Adherence to that statement of law does not compel or justify its application to the postdecretal order now on review. In Claus v. Claus, 163 So. 2d 26 (Fla.App.1964), which I authored, the appeal was from a final decree of divorce, as in Carter, [*321] rather than from a postdecretal order as here involved, and we said: “In order to escape the rule announced in Carter v. Carter, supra, and obtain…1 / 2
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McDANIEL Gift Shop, Inc. v. Balfe, 179 So. 2d 588 (Fla. 1st DCA 1965)…ls from divorce decrees in which the appellant had received and accepted alimony or other payments made pursuant to the said decrees. Examples of such cases are our recent decisions in Carter v. Carter, 141 So. 2d 591 (Fla.App.1962), Claus v. Claus, 163 So. 2d 26 (Fla.App.1964), and Fort v. Fort, 167 So. 2d 315 (Fla.App.1964). In thus applying the doctrine in our opinion in the last-mentioned case we recognized that such application might sometimes seem to be harsh but pointed out that the procedural rules p…
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Frauken Elizabeth Brackin v. Brackin, 167 So. 2d 604 (Fla. 1st DCA 1964)…d of alimony provided by the decree appealed. She did not avail herself of the provisions of Florida Appellate Rule 3.8(b). We are aware that a direct conflict on a point of law appears to exist between the decision of this court in Claus v. Claus, 163 So. 2d 26 (Fla.App.1964), and the decision of the Florida District Court of Appeal, [*607] Second District, in Hartley v. Hartley, 134 So. 2d 281 (Fla.App.1961), in that in Claus we applied the rule of estoppel announced in the Carter case to a situation wher…
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- McMullen v. Fort Pierce Fin. & Constr. Co., 108 Fla. 492 (Fla. 1933)
- State ex rel. First Tr. & Sav. Bank v. Southerland, 108 Fla. 433 (Fla. 1933)
- Carter v. Carter, 141 So. 2d 591 (Fla. 1st DCA 1962)
- Rayle v. Merrill, 141 So. 2d 288 (Fla. 1st DCA 1962)