ARTHUR R. VOSS, APPELLANT,
v.
BETTY LOU VOSS, APPELLEE
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In this divorce appeal, the husband challenges interlocutory orders granting his wife an injunction against interference, temporary alimony, use of an automobile, exclusive residence, and payment of utilities and medical expenses. The Florida District Court of Appeal affirmed, holding that while due process ordinarily requires notice before granting alimony pendente lite, the defect was cured when the husband received notice and a hearing on his motion to vacate, and the trial court properly exercised its discretion in the relief granted.
The court held that while service of process and notice are ordinarily prerequisites to jurisdiction to grant alimony pendente lite, any defect was cured when the husband received notice and a full hearing on his motion to vacate and the chancellor adhered to the order after reviewing it on the merits. The court further held that the relief granted fell within the chancellor's discretion and the husband failed to demonstrate an abuse of discretion.
“In a suit by a wife against her husband for divorce, service of process on the husband is a prerequisite to jurisdiction to grant alimony pendente lite, as authorized by § 65.07, Fla.Stat., F.S.A.”
Establishes the general rule requiring service of process and notice before granting alimony pendente lite.
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This appeal is from two interlocutory orders in a divorce suit. An “emergency” application, before service of process and without notice to the defendant husband, produced an order which restrained the defendant husband from interfering with the wife, directed him to deliver an automobile to her for her use, ordered him to remove from the residence of the parties, and to pay (1) “all utilities, mortgage payments, and telephone bills of said residence,” (2) $15 per week temporary alimony and (3) the future medical and hospital expenses of the wife, who was then pregnant and expecting within two months.
The defendant moved to set aside that order, for want of notice and contesting it on its merits. The motion to vacate was heard after notice and denied. No evidence was presented, and the initial order was adhered to. The two orders were then appealed.
Appellant contends there was a denial of due process, and that the orders represented an abuse of discretion. Neither contention has merit An injunction for a wife’s protection from interference or molestation by her husband may be granted without notice properly on a verified divorce complaint which contains sufficient allegations and an adequate showing under rule 3.19, F.R.C.P., 31 F.S.A.; and without bond when inability to make bond is shown as required under §§ 64.02 and 64.03, Fla.Stat., F.S.A.
In a suit by a wife against her husband for divorce, service of process on the husband is a prerequisite to jurisdiction to grant alimony pendente lite, as authorized by § 65.07, Fla.Stat., F.S.A. Hogan v. Hogan, 104 Fla. 424, 140 So. 213. And due process of law and orderly procedure would appear to require that the husband be given notice of an application for alimony, and an opportunity to be heard thereon. Sanchez v. Sanchez, 21 Fla. 346; Hogan v. Hogan, supra; Peacock v. Peacock, 160 Fla. 630, 36 So.2d 206; Nystrom v. Nystrom, Fla.App.1958, 105 So.2d 605, 609; 10 Fla.Jur., Divorce, etc. § 134; 27B *353C.J.S. Divorce § 247a. However, the husband’s objections to the premature order for alimony in this case are without force because the order was reviewed on the merits and adhered to by the chancellor after notice, on the husband’s motion to set the order aside. See Belk’s Department Store, Miami, Inc. v. Scherman, Fla.App. 1960, 117 So.2d 845, 847; Gwynn v. Gwynn, 63 Wyo. 365, 182 P.2d 815, 817.
The remaining question is whether the relief granted to the plaintiff pendente lite was proper. The matters with which the orders dealt were within the chancellor’s discretion, and the appellant has failed to carry the burden of showing an abuse of discretion.
Affirmed.
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Montano v. Montano, 520 So. 2d 52 (Fla. 3d DCA 1988)…payment of alimony, child support, and costs. Id. See also Peacock v. Peacock, 160 Fla. 630, 36 So. 2d 206 (Fla.1948) (alimony cannot be awarded when process is by publication only); Adams v. Adams, 218 So. 2d 777 (Fla. 1st DCA 1969); Foss v. Voss, 169 So. 2d 351 (Fla. 3d DCA 1964). On the final issue, there are no valid grounds for disqualifying the trial judge. See Fischer v. Knuck, 497 So. 2d 240 (Fla.1986) (petitioner’s motion and affidavit for disqualification must assert facts sufficient to show factu…
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Webber v. Brickley, 239 So. 2d 633 (Fla. 3d DCA 1970)…ial court gave appellant an opportunity to present any valid reason for vacating the final judgment, thereby fulfilling the purpose of the notice provision of Rule 1.420(b), Florida Rules of Civil Procedure, 30 F.S.A. See Voss v. Voss, Fla.App.1964, 169 So. 2d 351. The record fails to show, through the petition for rehearing or other means, an explanation for appellant’s failure to make the discovery ordered. Accordingly the judgment in 69-1041 is affirmed. Appeal No. 70-246 presents the question whether the…
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Adams v. Lexine L. Adams, 218 So. 2d 777 (Fla. 1st DCA 1969)…payments, the same is in error and contrary to the decisions of our Courts as laid down by the Supreme Court of Florida in Pawley v. Pawley, 46 So. 2d 464, 28 A.L.R.2d 1358 (1950) and by the Third District Court of Appeal of Florida in Voss v. Voss, 169 So. 2d 351 (1964). The final judgment is therefore modified by deleting therefrom the provisions thereof ordering the payments of alimony and support money, and said decree reversed as to such extent. WIGGINTON, C. J., and SPECTOR, J., concur.…
Previewing 3 of 7 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Belk's Dep't Store v. Scherman, 117 So. 2d 845 (Fla. 3d DCA 1960)
- Sanchez v. Sanchez, 21 Fla. 346 (Fla. 1885)
- Nystrom v. Nystrom, 105 So. 2d 605 (Fla. 2d DCA 1958)
- Peacock v. Peacock, 160 Fla. 630 (Fla. 1948)
- Hogan v. Hogan, 104 Fla. 424 (Fla. 1932)