LOUISE E. HINES, APPELLANT,
v.
W. M. HINES, APPELLEE
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The Florida District Court of Appeal reversed its prior dismissal of an appeal in a divorce case involving alimony and child support. The court held that a wife's acceptance of alimony payments pending appeal does not constitute a waiver of her right to challenge the underlying decree, overruling the prior 'fruits of the judgment' doctrine after the Supreme Court's decision in Brackin v. Brackin.
A wife's receipt of alimony payments pursuant to a court order does not constitute a waiver or estoppel preventing her from appealing the decree, provided the husband is not injured or prejudiced by the payments. Compliance with Appellate Rule 3.8(b) is permissive rather than mandatory, and failure to comply is not grounds for dismissing the appeal based on estoppel.
“In the absence of other intervening or controlling equities, when the husband is not injured or prejudiced in any way by the wife receiving the money, there is no waiver or estoppel in merely the payment or receipt of the alimony pursuant to order of court.”
Establishes the Supreme Court's holding in Brackin that acceptance of alimony does not constitute waiver or estoppel absent injury to the husband.
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Join FLexlaw to unlock all legal intelligenceLouise Hines appealed a final divorce decree that awarded her alimony and child support. After accepting the alimony and child support payments ordere…
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On July 22, 1965, this court rendered its final judgment in the above-entitled cause dismissing the appeal on the ground that appellant had accepted the alimony and child support awarded her by the final decree, and after accepting such benefits appealed the decree without protecting her right to do so by complying with the provisions of Florida Appellate Rule 3.8(b), 31 F.S.A., and in violation of the established rule of equity that one cannot accept the fruits and benefits of an order, judgment, or decree of the court and thereafter question the correctness of that decree by appeal therefrom.
The Supreme Court reviewed our decision in response to a petition for writ of cer-tiorari, and because the record on appeal did not include appellant’s assignment of errors it remanded the cause to this court for reconsideration in the light of the Supreme Court’s decision in Brackin v. Brackin, (Fla.1966) 182 So.2d l.1
We have now procured from the trial court a copy of appellant’s assignment of errors and find that each and every aspect of the final decree is challenged by this appeal, including the correctness of the decree on the assertion that it is contrary to the law and manifest weight of the evidence; the correctness of the court’s ruling denying appellant’s counterclaim for separate maintenance; and, the amount of alimony and child support awarded by the decree is inadequate in light of the evidence adduced at the trial.
By its decision in Brackin, supra, the Supreme Court held that:
“ * * * In the absence of other intervening or controlling equities, when the husband is not injured or prejudiced in any way by the wife receiving the money, there is no waiver or estoppel in merely the payment or receipt of the alimony pursuant to order of court.”
In Brackin the court further held that compliance by a wife with the requirements of Appellate Rule 3.8(b) 2 is permis*512sive rather than mandatory, and failure to comply with which is not cause for dismissing a wife’s appeal on the ground of estop-pel.
In light of the foregoing decision of the Supreme Court in Brackin v. Brackin, the order heretofore entered in this cause dismissing the appeal is vacated and set aside, and the appeal is reinstated for further proceedings.
STURGIS and CARROLL, DONALD K., JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Schreiber v. Schreiber, 217 So. 2d 301 (Fla. 1968)…ppeal. In the meantime, following Brackin v. Brackin, supra, our decision in this case will apply similarly as contemplated in the indicated rule revision.” See also Lyons v. Lyons, Fla.App.3d 1967, 200 So. 2d 817; Hines v. Hines, Fla.App.1st 1966, 184 So. 2d 510; and Hartley v. Hartley, Fla.App.2d 1961, 134 So. 2d 281. Although the award in Brackin (a token amount of $600.00, payable in installments) was characterized as “go-away” money and did not appear to be alimony in any true sense, see Brackin v. Bra…
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Helene Leslie Lyons v. Lyons, 200 So. 2d 817 (Fla. 3d DCA 1967)…b, F.A.R., as permitting an appeal from an alimony award when alimony payments had been accepted during the pendency of the appeal. This is the same conclusion reached by the District Court of Appeal, First District, in Hines v. Hines, Fla.App.1966, 184 So. 2d 510. Their interpretation of the Brackin decision was that the compliance with the requirements of Rule 3.8 subd. b, F.A.R., is permissive rather than mandatory, and failure to comply with the rule is not a reason for dismissal. In light of the recent…
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Hines v. Hines, 195 So. 2d 58 (Fla. 1st DCA 1967)…PER CURIAM. Affirmed. See also, Fla.App., 184 So. 2d 510.…
Authorities Cited
- Fern Elizabeth Messink v. MacK'S Foods & Corporate Grp. Serv., Inc., 183 So. 2d 531 (Fla. 1966)
- Hines v. Hines, 183 So. 2d 531 (Fla. 1966)