ROSE WINSCO COMCOWICH, APPELLANT,
v.
MICHAEL WILLIAM COMCOWICH, APPELLEE
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A former wife appealed a post-divorce order denying her request for lump-sum alimony and limiting her special equity claim in jointly held property to post-divorce expenditures only. The court affirmed, holding that the trial court lacked jurisdiction to award alimony nearly two years after the final divorce judgment and properly excluded pre-divorce expenditures from the special equity calculation.
The trial court properly lacked jurisdiction to award alimony nearly two years after the final divorce decree became final and absolute, notwithstanding language reserving jurisdiction for enforcement and equitable orders. The court also properly limited the special equity claim to post-divorce expenditures only.
[1] A court of equity lacks the power to impose new duties or grant new rights unadjudicated in a final decree.
[2] A trial court retains jurisdiction to enforce provisions of a final judgment of divorce and to enter equitable orders related to those provisions.
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Join FLexlaw to unlock all legal intelligence“It is a settled principle of law in this state that a court of equity possesses no power to go back and grant a new right or impose a new duty unadjudicated in its former decree after it has become final and absolute.”
Establishes the core principle preventing the trial court from awarding new alimony nearly two years after the final divorce decree.
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Join FLexlaw to unlock all legal intelligenceThe parties were divorced by final judgment. Nearly two years after the divorce, the former wife (appellant) petitioned for lump-sum alimony and to es…
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This is an interlocutory appeal brought by the former wife of appellee from a post decretal order of the Circuit Court of Dade County which was entered upon the appellant’s petition for an allowance of lump-sum alimony and to establish a special equity in the home owned by the parties.
The circuit court order appealed was entered, after taking of testimony, on October 16, 1969, almost two years after the entry of the final judgment of divorce. The pertinent parts of the order held that the court had no jurisdiction to award alimony subsequent to the entry of the final judgment of divorce, and therefore, that the petition for allowance of alimony was denied. It was further held that the appellant had a special equity in the ownership interest of the appellee as to the property in question, to the extent of $1,700.00, such being the amount expended after the di*67vorce by the appellant and her daughter to maintain and improve the property. The court denied appellant’s claim of additional equity arising out of the expenditures she alleged that she made in connection with the purchase and improvement of the property prior to the divorce.
Appellant seeks reversal of the order appealed, contending first that the trial court erred in holding that the court had no jurisdiction to award lump-sum alimony to plaintiff because the final judgment of divorce contained the following language:
“This Court specifically reserves jurisdiction of this entire matter for enforcement of the provisions of this judgment and to enter such further orders as may be equitable, appropriate and just.”
We cannot agree with appellant’s contention.
It is obvious on the face of the final judgment of divorce that no request for permanent or lump-sum alimony was made by the appellant during the course of the trial proceedings. In fact, the record demonstrates that the first request for permanent or lump-sum alimony was made almost two years after the entry of the final judgment of divorce. In the case of Sobol v. Sobol, Fla.App.1961, 191 So.2d 68, this court, relying upon the case of Morrison v. Morrison, Fla.App. 1960, 122 So.2d 199, stated that:
“ ‘It is a settled principle of law in this state that a court of equity possesses no power to go back and grant a new right or impose a new duty unadjudicated in its former decree after it has become final and absolute.’ ”
Therefore, it appears to us that there could be no issue before the chancellor in regard to alimony and/or property rights in the proceedings of October 16,1969.
The second and final point raised is that: the refusal of the trial court to permit the plaintiff to present evidence predating the final judgment of divorce to establish her special equity in jointly held property was reversible error.
We hold that the trial judge was correct in limiting plaintiff’s claim to special equity arising from expenditures subsequent to the divorce.
Affirmed.
(dissenting in part).
While I agree that the final judgment finally determined the question of alimony, I would hold that the trial court did have jurisdiction to consider the appellant’s rights in the former marital home. The final judgment contained the following reservation as to the marital home:
“5. The parties, as tenants by the entirety, have owned what was once their marital home, located at 13340 N.W. Miami Court, Miami, Florida 33168, there being outstanding a mortgage encumbering the property, payable at $57.00 per month on an amortized basis. Title to the home, together with furniture and fixtures located therein, shall remain in joint names of the parties, but Plaintiff is granted the exclusive use of said property, both real and personal, so long as Defendant’s obligation to support the child of the parties; namely, MICHAEL BRUCE COMCOWICH,' remains according to the terms hereof, after which time either party may petition this Court for such further relief as may be appropriate. The parties may, however, dispose of this property in such other manner as they may mutually agree.”
I would hold that the former wife’s equity in the property was not cut off by this provision. Cf. Lyons v. Lyons, Fla.App. 1968, 208 So.2d 137.
PEARSON, Chief Judge
(dissenting in part).
While I agree that the final judgment finally determined the question of alimony, I would hold that the trial court did have jurisdiction to consider the appellant’s rights in the former marital home. The final judgment contained the following reservation as to the marital home:
“5. The parties, as tenants by the entirety, have owned what was once their marital home, located at 13340 N.W. Miami Court, Miami, Florida 33168, there being outstanding a mortgage encumbering the property, payable at $57.00 per month on an amortized basis. Title to the home, together with furniture and fixtures located therein, shall remain in joint names of the parties, but Plaintiff is granted the exclusive use of said property, both real and personal, so long as Defendant’s obligation to support the child of the parties; namely, MICHAEL BRUCE COMCOWICH,' remains according to the terms hereof, after which time either party may petition this Court for such further relief as may be appropriate. The parties may, however, dispose of this property in such other manner as they may mutually agree.”
I would hold that the former wife’s equity in the property was not cut off by this provision. Cf. Lyons v. Lyons, Fla.App. 1968, 208 So. 2d 137.
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Freybe v. Freybe, 40 Fla. Supp. 181 (Palm Beach Cty. Cir. Ct. 1973)…by the husband in his silence. The court was silent on this issue but reserved jurisdiction as above noted. Where a final judgment is silent as to alimony the silence operates as an adjudication that no alimony is warrented. Comcowich v. Comcowich, 237 So. 2d 66, Weiss v. Weiss, 118 So. 2d 833. The husband here, by his unexcused failure to raise the issue prior to the entry of the final judgment, cannot now establish a right to alimony without, at the very least, alleging and proving a substantial change in…
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Amend v. Amend, 341 So. 2d 1038 (Fla. 4th DCA 1977)…as not previously had the legal opportunity to litigate this issue or the opportunity to thus litigate was suspended by an Order appropriately retaining jurisdiction. Frohock v. Frohock, 117 Fla. 603, 158 So. 106, 107 (1934); Comcowich v. Comcowich, 237 So. 2d 66 (Fla. 3d DCA 1970); DuVernoy v. DuVernoy, 202 So. 2d 620 (Fla. 1st DCA 1967); Dings v. Dings, 161 So. 2d 227 (Fla. 3d DCA 1964); Morrison v. Morrison, 122 So. 2d 199 (Fla. 1st DCA 1960); Weiss v. Weiss, 118 So. 2d 833 (Fla. 3d DCA 1960). The award…
Authorities Cited
- Helene Leslie Lyons v. Lyons, 208 So. 2d 137 (Fla. 3d DCA 1968)
- Sobol v. Sobol, 191 So. 2d 68 (Fla. 3d DCA 1966)
- Morrison v. Morrison, 122 So. 2d 199 (Fla. 1st DCA 1960)