JEWELL CALDER BLUE, APPELLANT,
v.
LOUIS DAVID BLUE, APPELLEE
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The Florida District Court of Appeal, Second District, considered a motion to dismiss an appeal from an order reducing alimony. The court held that accepting reduced alimony payments did not preclude the wife from appealing the modification order, distinguishing this situation from the general rule against appealing a decree after accepting its benefits.
No, accepting alimony payments under a modified award does not waive the right to appeal the order that reduced the alimony. The court reaffirmed its position that this situation does not invoke the principle of accepting the fruits of a decree while appealing it.
“We now have for consideration the defendant's motion to dismiss the appeal.”
This sentence introduces the procedural posture of the case, indicating the court's task.
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Join FLexlaw to unlock all legal intelligenceA final divorce decree awarded alimony to the plaintiff-appellant. The defendant-appellee subsequently moved to modify the alimony award, and the cour…
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In this cause a final decree of divorce was entered in favor of the plaintiff-appellant awarding her alimony from the defendant-appellee. Subsequently on motion of the defendant the court modified the award of alimony by reducing the amount to be paid. The plaintiff appeals from that order. There are no cross assignments of error. The defendant has paid and the plaintiff has accepted the alimony in the amounts to which they were reduced by the order appealed without the benefit of an order for alimony pending appeal in accordance with the provisions of Fla.App. Rule 3.8(b), 31 F.S.A. We now have for consideration the defendant’s motion to dismiss the appeal.
The defendant cites and relies upon Fort v. Fort, Fla.App.1964, 167 So.2d 315, in which the District Court of Appeal, First District, dismissed an appeal on facts identical in effect to those in this case. As disclosed in the dissenting opinion in Fort, this court has adopted the view that an appeal by a wife from an order reducing alimony previously awarded does not bring into play the principle of law that one cannot accept the fruits of a decree and at the same time appeal from it. We re-affirm that view. In view of the very complete analysis of the question in Fort, it is unnecessary for us to elaborate further.
An appropriate order will be entered denying the motion to dismiss.
SMITH, C. J., and ALLEN and ANDREWS, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Blue v. Jewell Calder Blue, 183 So. 2d 205 (Fla. 1966)…PER CURIAM. We have for review in this case a petition for a writ of certiorari directed to the District Court of Appeal, Second District. See Blue v. Blue, 172 So. 2d 502 (Fla.App.2d). After having heard argument and studied the briefs herein, we have concluded that the petition for a writ of certiorari should be denied on the authority of Brackin v. Brackin (Fla.), 182 So. 2d 1, opinion filed January 12, 1966. We…
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Jewell Calder Blue v. Blue, 188 So. 2d 563 (Fla. 4th DCA 1966)
Authorities Cited
- Bennett Stewart Fort v. Fort, 167 So. 2d 315 (Fla. 1st DCA 1964)