GEORGE M. RANKIN, APPELLANT,
v.
EDITH RANKIN, APPELLEE
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In this second appeal of a divorce case, the court held that temporary alimony payments made by the husband during the pendency of the first appeal should be credited against the lump sum alimony award, as temporary alimony does not automatically continue after final judgment without a specific request.
The court held that temporary alimony pending final judgment automatically merges into the final judgment and does not continue after judgment without a specific request. Even if the wife was misled into not requesting alimony pending appeal, any such payments must be credited against lump sum alimony awards under Florida law.
[1] Temporary alimony awarded pending a final divorce judgment merges into that judgment and does not continue thereafter.
[2] Alimony pending an appeal must be specifically requested and awarded after the appeal is taken.
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Join FLexlaw to unlock all legal intelligence“a temporary alimony award pending the final judgment in the lower court is merged in the judgment and does not continue after the judgment”
Establishes the core principle that temporary alimony does not automatically survive the final judgment
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Join FLexlaw to unlock all legal intelligenceThe parties were granted a divorce on April 27, 1970, with the wife awarded $40 per month temporary alimony pending trial and $1500 as lump sum alimon…
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This is the second appearance of this cause before us. The parties hereto originally were granted a divorce on April 27, 1970. Theretofore, and during the pen-dency of that proceeding, appellee had been awarded temporary alimony in the amount of $40 per month. The final judgment gave appellee $1500 as lump sum alimony and a special equity in certain property. On appeal we reversed the judgment as it related to the special equity awarded appel-lee, but affirmed in all other respects, Fla.App., 249 So.2d 741. Meanwhile, during the appeal, appellant had continued paying the $40 per month although no application had been made either to the trial court or to this court for alimony pending appeal.
*284Upon remand, the lower court entered an amended final judgment properly deleting the special equity award. But concerning the payments of $40 per month made during the appeal, he construed them to be a continuation of the temporary alimony originally ordered prior to the first judgment and refused to allow appellant credit against the permanent lump sum award. This appeal ensued.
Initially, we observe that a temporary alimony award pending the final judgment in the lower court is merged in the judgment1 and does not continue after the judgment. Alimony pending an appeal may be awarded thereafter, of course, but it must be specifically requested upon taking the appeal.2 Thus, the temporary alimony originally granted pending the divorce proceedings below does not automatically continue on as temporary alimony after judgment and during the pendency of an appeal. Accordingly, appellee was not properly awarded alimony pending the appeal to begin with, and, unless appellant is estopped because he may have lulled her into inaction by continuation of the original temporary award, appellee is not entitled thereto.
But, as to this, even if we assume that appellee was misled into not requesting temporary alimony pending appeal, she can be in no better position than if she had requested it and it had been granted. If granted, under Florida law, it must be deducted from lump sum awards. As our sister court in the third district said in Frischkorn v. Frischkorn,3
“ . . . The purpose of the lump sum alimony is to discharge the husband from any further obligation to the wife after the date final judgment is entered; thus, payments made after this date, but pursuant to an order requiring temporary alimony pending appeal, goes toward discharge of that obligation. See Morton v. Morton, Fla.App. 1958, 104 So.2d 472.”
Therefore, since there was a lump sum award here, the trial court should have credited against such sum the payments made pending the prior appeal. His failure to do so was error and the cause must be reversed and remanded for proceedings not inconsistent herewith.
Reversed.
MANN, C. J., and HOBSON, J., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Scott v. Scott, 643 So. 2d 1124 (Fla. 4th DCA 1994)…award which is not incorporated in the final judgment cannot be enforced by the trial court in post-judgment proceedings. See Bird v. Bird, 385 So. 2d 1090 (Fla. 4th DCA 1980); Aylward v. Aylward, 420 So. 2d 660 (Fla. 2d DCA 1972); Rankin v. Rankin, 275 So. 2d 283 (Fla. 2d DCA 1973). The matter of arrearages in the payment of temporary child support and alimony orders entered during the pendency of the dissolution action should have been brought up at the final hearing so that the trial court could have made…
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Keller v. Keller, 302 So. 2d 795 (Fla. 3d DCA 1974)…elief granted to the wife during the pendency of this action. The husband asserts that this sum should be a deduction from the lump sum alimony award, citing Frischkorn v. Frischkorn, Fla.App. 1969, 223 So. 2d 380 and Rankin v. Rankin, Fla.App.1973, 275 So. 2d 283. Each of the cited cases concerned questions of temporary alimony pending appeal, and are inapposite in the instant case. The court retains the inherent power to reduce to judgment its previous orders pertaining to temporary relief which are in arr…
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Keller v. Christal C. Keller, 356 So. 2d 854 (Fla. 3d DCA 1978)…Morton, Fla.App.1958, 104 So. 2d 472.” Since there was a lump sum award here, the trial court should have credited against such sum the payment made by appellant pending the prior appeal. His failure to do so was reversible error. Rankin v. Rankin, 275 So. 2d 283 (Fla. 2d DCA 1973). Therefore, for the reasons stated and upon the authorities cited we must reverse the order appealed. Reversed and remanded for further proceedings not inconsistent herewith.…
Previewing 3 of 7 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Elizabeth v. Duss, 92 Fla. 1081 (Fla. 1926)
- Frischkorn v. Thomasine G. Frischkorn, 223 So. 2d 380 (Fla. 3d DCA 1969)
- MacKey v. State, 223 So. 2d 380 (Fla. 3d DCA 1969)
- Young v. Young, 65 So. 2d 28 (Fla. 1953)
- Morton v. Morton, 104 So. 2d 472 (Fla. 2d DCA 1958)
- Rankin v. Rankin, 249 So. 2d 741 (Fla. 2d DCA 1971)