THERESA B. CHANDLER, APPELLANT,
v.
ROBERT A. CHANDLER, APPELLEE

Fla. 4th DCA | 1969-09-26
No. 2274
OWEN, J., and FARRINGTON, OTIS, Associate Judge, concur.
226 So. 2d 697 Florida District Court of Appeal, Fourth District (1969) Positive Treatment
Cited by 14 cases

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Holding

The court held that the trial court erred in denying a hearing on the mother's petition for increased child support, as the prior order did not constitute res judicata on that issue.


Facts & Procedural History

Following a divorce, the mother petitioned for increased child support multiple times. The trial court denied her petitions, citing a prior order that…

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Opinion of the Court
WALDEN, Judge.

*698WALDEN, Judge.

A final decree of divorce was entered in favor of Theresa B. Chandler, appellant, against Robert A. Chandler, appellee, on June 15, 1965. The same decree approved and made part thereof a Property Settlement Agreement and a Custody Settlement. The latter gave custody of the four children born of the marriage and support payments of $275.00 per month to the appellant.

In October 1967 appellee petitioned for a post decretal order modifying the custody award to grant him custody of Michael Chandler. A hearing was held and simultaneously the appellant responded, opposing appellee’s petition and alternatively petitioning for additional child support because of circumstantial changes and increased financial ability of appellee to pay. The trial court refused to consider appellant’s petition for additional support1 and granted temporary custody of Michael Chandler to appellee.2

On April 8, 1968, appellant again petitioned for a modification of the divorce decree seeking additional child support payments alleging increased needs of the children and changed circumstances of appellee indicating a financial ability to pay. The trial court denied appellant’s petition and appellant appeals.

In the denial of the appellant’s petition the court asserted a change in support was effected by the order rendered in December 1967, which granted custody of Michael Chandler to appellee and maintained support payments at $275.00 per month, but reduced the number of children in appellant’s custody. Further, the order asserted that for the period from December 1967 to April 1968 there were no significant changes in the needs of the children or the financial ability of the appellee to warrant additional child support. During the April 1968 hearing, which is part of the record, the trial judge stated that the order of December 1967 made the period from final decree to December 1967 res judicata as to additional child support.3

*699F.S. Section 61.14, F.S.A.1967, permits either party to petition the court for modification of child custody or child support. It provides that sufficient changes in circumstances may be shown to warrant an adjustment in child support, but it must be proved that there is an increase in the ability of the father to contribute more support or additional needs of the children exist. Simmons v. Simmons, Fla.App.1966, 192 So.2d 325; Cherney v. Cherney, Fla.App.1962, 146 So.2d 914.

In order for the doctrine of res judicata to apply the same parties and issues must be before the court and a full hearing on the issues must be granted with a final determination of the issues. Gordon v. Gordon, Fla.1952, 59 So.2d 40; Shirley v. Shirley, Fla.App.1958, 100 So.2d 450. In Gordon, supra, the court said the effect of res judicata “puts at rest and entombs in eternal quiescence every justi-ciable, as well as every actually adjudicated, issue.” Gordon v. Gordon, supra, 59 So.2d at p. 43.

Likewise, collateral estoppel differs in that it arises out of different causes of action in which the parties are not the same but issues in the present cause had been previously determined after a full hearing. However, in collateral es-toppel the “precise fact” or “every point and question” on the issue must have been decided. Gordon v. Gordon, supra at p. 45.4

In the instant case appellant had a right under the statute to petition for a modification of the final decree. In December 1967 when the court refused to hear her petition the issue was never decided. The court felt that reducing her custody of one child and at the same time maintaining her support at $275.00 per month was tantamount to an increase in child support. This may be true, but appellant never had a hearing or a determination made as to changed needs of the children or increased financial ability of the appellee to pay for the period of June 1965 to December 1967. Because hearing was denied we will not decide the merits or demerits of appellant’s argument for increased child support.

Therefore, we reverse and remand to the trial court with directions that a full hearing be conducted on the merits of appellant’s petition for additional child support based upon such material changes, if any, that have occurred since the entry of the final decree on June 15, 1965.

Reversed.

OWEN, J., and FARRINGTON, OTIS, Associate Judge, concur.


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Cited By

  • Mayme Bondu v. Ruben Gurvich, M.D., 473 So. 2d 1307 (Fla. 3d DCA 1978)
    …for judgment on the pleadings was not based on collateral estop-pel, which, although related to res judicata, is not the same. See Seaboard Coast Line Railroad v. Industrial Contracting Co., 260 So. 2d 860 (Fla. 4th DCA 1972); Chandler v. Chandler, 226 So. 2d 697 (Fla. 4th DCA 1969). . The effective date of this statute was October 1, 1978, well before Mr. Bondu’s death on June 6, 1979, and the filing of Mrs. Bondu's complaint on March 10, 1980. . Since Mrs. Bondu's complaint does not allege that the recor…
  • …s, this court has held that in order for the doctrine of res judicata to apply, the same parties and issues must be before the court and a full hearing on the issues must be granted with a final determination on the issues. See Chandler v. Chandler, 226 So. 2d 697, 699 (Fla. 4th DCA 1969). The trial court in the first action granted the Badras’ motion for judgment on the pleadings because State Street Bank “failed 'to meet its burden of proof’ “with regard to the conditions precedent under the mortgage.” Thu…
  • Tyson v. Viacom, Inc., 890 So. 2d 1205 (Fla. 4th DCA 2005)
    …s claims arose out of the same cause of action. See Ragsdale, 193 F. 3d at 1235. “[T]he effect of res judicata ‘puts at rest and entombs in eternal quiescence every justiciable, as well as every actually adjudicated, issue.’ ” Chandler v. Chandler, 226 So. 2d 697, 699 (Fla. 4th DCA 1969) (quoting Gordon v. Gordon, 59 So. 2d 40, 43 (Fla.1952)). I would affirm the trial courts final summary judgment because the plaintiffs second complaint violated the doctrine of res judicata and its corollary the rule against…

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