MARY CATHERINE LOURCEY, APPELLANT,
v.
JOSEPH JUSTIN LOURCEY, APPELLEE
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Court reversed trial court's modification of child support payments because the defendant's oral motion, without a filed pleading, did not satisfy jurisdictional requirements for modifying a final divorce decree.
A trial court lacks jurisdiction to modify child support provisions of a final divorce decree based on an oral motion alone; a formal pleading is required.
[1] A trial court lacks jurisdiction to modify child support provisions of a final divorce decree based on an oral motion; a formal pleading directed to modification is requi…
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Join FLexlaw to unlock all legal intelligence“the chancellor was without jurisdiction to summarily change child support provisions of a divorce decree, which had become final where no pleading had been filed directed to modification of decree”
Court's statement of controlling law from Taylor v. Taylor and Goff v. Goff
The defendant was in arrears on alimony and child support payments. The trial court found the defendant not in contempt but orally granted defendant's…
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This is an interlocutory appeal from an order of the Circuit Court of Duval County, Florida, modifying a final judgment by reducing the sums of money for support of minor children as originally stipulated to and ordered in the final decree.
The defendant was in arrears in payment of alimony and child support monies, and so found by the trial court. The trial court also found the defendant not to be in contempt of court, but did, upon motion for defendant, modify the final decree so as to reduce the child support from $400.00 per month to $300.00 per month. This motion was orally moved by the defendant.
From this order, plaintiff enters this interlocutory appeal.
The defendant has not filed a brief, although plaintiff has perfected her appeal, including a brief.
This case falls squarely before the ruling of the Second and Third District Courts of Appeal in the following cases, to wit: Taylor v. Taylor, 143 So.2d 516 (Fla.App. 2nd, 1962) and Goff v. Goff, 151 So.2d 294 (Fla.App.3rd, 1963), wherein both courts held that the chancellor was without jurisdiction to summarily change child support provisions of a divorce decree, which had becomé final where no pleading had been filed directed to modification of decree. The oral motion made by the defendant does not satisfy the requirement that a pleading is necessary.
Said order appealed from is therefore reversed and the cause remanded for further proceedings, not in conflict herewith.
Reversed and remanded.
SPECTOR, C. J., and WIGGINTON, J., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By (11 total)
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Smithwick v. Smithwick, 343 So. 2d 945 (Fla. 3d DCA 1977)…r alimony payments where no pleading is filed directed to modification thereof. See Cortina v. Cortina, 98 So. 2d 334 (Fla.1957); Taylor v. Taylor, 143 So. 2d 516 (Fla.2d DCA 1962); Goff v. Goff, 151 So. 2d 294 (Fla.3d DCA 1963); Lourcey v. Lourcey, 256 So. 2d 25 (Fla.1st DCA 1971); Purvis v. Carver, 303 So. 2d 681 (Fla.4th DCA 1974); Herbert v. Herbert, 304 So. 2d 465 (Fla.4th DCA 1974). Accordingly, those provisions of the judgment terminating alimony and reducing the child support are set aside, and the…
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Moody v. Moody, 721 So. 2d 731 (Fla. 1st DCA 1998)…arties, it denied the wife fundamental due process and must be reversed.”); Vanoy v. Johnson, 459 So. 2d 453 (Fla. 5th DCA 1984)(reversing contempt order where motion noticed for hearing was petition for modification of custody); Lourcey v. Lourcey, 256 So. 2d 25 (Fla. 1st DCA 1971)(reversing, for lack of jurisdiction, order reducing child support ordered in final decree where court denied contempt motion alleging alimony and support arrearages and defendant orally moved for support reduction). See also Thom…
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Brady v. Jones, 491 So. 2d 1272 (Fla. 2d DCA 1986)…sitation, and even had he moved orally for such restriction at the hearing, the oral motion would have been insufficient because the issue was not tried by the express or implied consent of the parties. See Fla.R.Civ.P. 1.190(b); Lourcey v. Lourcey, 256 So. 2d 25 (Fla. 1st DCA 1971); Purvis v. Carver, 303 So. 2d 681 (Fla. 4th DCA 1974). The husband argues that where an emergency affecting the best interests of the child exists, the trial court has the authority to change or modify custody even where the pro…
Previewing 3 of 11 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Goff v. Goff, 151 So. 2d 294 (Fla. 3d DCA 1963)
- Taylor v. Taylor, 143 So. 2d 516 (Fla. 2d DCA 1962)