AL ANDRUSS
v.
DORA MAE ANDRUSS
AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.
This case concerns whether a court can establish a lien on a former husband's property for unpaid alimony. The appellate court affirmed the lower court's decision to allow the suit to proceed, finding it a continuation of the original divorce action.
Yes, the court can proceed to determine the amount of alimony in arrears and order execution, even if it does not create a specific lien on the property unless provided by statute. The bill of complaint, treated as a dependent suit, is a continuation of the original divorce action.
“The court in its order denying the motions treats the bill of complaint not as an original suit but as a dependent suit, a “bill filed for the purpose of enforcing and carrying into effect a Final Decree of this Court.””
Establishes how the lower court viewed the wife's complaint.
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceThe plaintiff (former wife) filed a bill of complaint seeking to determine the amount of unpaid permanent alimony owed by the defendant (former husban…
The full statement of facts, procedural history, and disposition for this case are member content.
Join FLexlaw to unlock all legal intelligence© FLexlaw, Inc. — AI-generated enrichments are proprietary. All rights reserved.
Explore caselaw by topic → Browse Alimony Arrearages cases and more on FLexlaw
The respondent, Dora Mae Andruss, plaintiff below, hied a bill of complaint alleging that the plaintiff was granted an absolute divorce October 5, 1934, awarded the sole custody and control of a minor child and *642the sum of $50.00 per month permanent alimony which at the time of filing was in arrears the sum of $1,866.00, now clue and unpaid. It was further alleged that the defendant’s father died intestate, leaving defendant as sole heir to two lots of the value of upwards of $10,000.00. Plaintiff asks the court to determine the exact amount due her from defendant under the terms of said final decree and to fix a lien upon the two lots for the amount determined.
Petitioner moved to dismiss and to strike the bill of complaint on the grounds that plaintiff had a full, adequate and complete remedy at law; that the bill did not contain allegations giving the court jurisdiction; that the court was without power to charge defendant’s property with a lien for permanent alimony; and that the procedure followed was not such as is defined in the rules of practice of the circuit courts, statutes and Supreme Court decisions.
Upon application for interlocutory certiorari we have for review the order treating the bill of complaint as a dependent suit and denying the motion to strike and to dismiss the complaint.
It appears from the decree of divorce that jurisdiction of the cause was specifically “retained for such other orders and decrees herein as to the Court may deem meet and proper.” The court in its order denying the motions treats the bill of complaint not as an original suit but as a dependent suit, a “bill filed for the purpose of enforcing and carrying into effect a Final Decree of this Court.”
Payment of alimony may usually be enforced upon summary application to the court wherein the decree was rendered. 17 Am. Jur., Sec. 659, et seq. Although the decree herein was subject to modification, jurisdiction being specifically retained for that purpose, the right to installments of alimony already accrued is vested and the court *643has no power to modify provisions as respects to past due installments. 17 Am. Jur., 494; 19 C. J. 309; Kennard v. Kennard, 131 Fla. 473, text 478, 179 So. 660.
A proceeding for the adjudication of sums due and unpaid under a decree for continuing installments of alimony is not a new and independent action but is incidental to and a continuation of the original suit. Thompson v. Thompson, 142 Fla. 643, 195 So. 571. The court in its order deemed and treated the bill of complaint as a dependent suit and a part of the original proceeding.
In the case of Dickenson v. Sharpe, 94 Fla. 25, 113 So. 638, holding that a decree granting permanent alimony does not create a specific lien on the husband’s real property unless so provided by statute, Mr. Justice Buford states:
“ * * * The only way by which an execution would be procurable would be for the claimant under the decree to petition the court for an adjudication against the person against whom the decree was rendered for default in payment of the installments and for an adjudication fixing the amount then due and payable under the terms of the decree and for an order for execution to issue for such specific amount.”
In Gaffny v. Gaffny, 129 Fla. 172, 176 So. 68, deciding that a court of equity retaining jurisdiction of the cause, can adjudicate the amount of alimony in arrears, which alimony was ordered to be paid in installments under a previous final decree of divorce, and enter judgment for the amount of such arrearages and order execution to issue thereon, Mr. Justice Brown in discussing the above quotation has this to say:
“While, as is argued, the foregoing quotation. from the opinion might not have been absolutely necessary to the decision of that particular case, it was pertinent to a dis*644cussion of the question involved, was concurred in by all the .members of .this Court, and we now adhere to and apply to this case the enunciation therein made as to the power of the trial court to adjudicate the amount of alimony in arrears, render judgment therefor, and order the issuance of execution. Furthermore, this enunciation appears to be well supported Fy the authorities. See 1 R. C. L. 951-953, and 19 C. J. 309, and cases cited.” See also Vinson v. Vinson, 139 Fla. 146, 190 So. 454, text 456; Van Loon v. Van Loon, 132 Fla. 535, 182 So. 205, text 208.
It appearing that the court in its decree of divorce specifically retained jurisdiction of the cause and later treated the bill of complaint as a depéndent suit and part of the original cause, the purpose of which was to obtain a judgment and execution for the arrearage of alimony, we find no error in the order of the court denying the motion to strike and to dismiss the bill. The petition for interlocutory certiorari is hereby denied.
Whitfield, P. J., and Brown and Chapman, J. J., concur.
Buford, J., concurs in opinion and judgment.
Chief Justice Terrell and Justice Ti-iomas not participating as authorized by Section 4687, Compiled General Laws of 1927, and Rule 21-A of the Rules of this Court.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
-
Blanton v. Oneida Langley Blanton, 154 Fla. 750 (Fla. 1944)…rce the same: The right to judgment for these past due amounts had become vested when this judgment was rendered. Van Leon v. Van Leon, 132 Fla. 535, 182 So. 205; 27 C.J.S. 1089; Pottinger v. Pottinger, 133 Fla. 442, 182 So. 762; Andruss v. Andruss, 144 Fla. 641, 198 So. 213. The contention of appellant that the reduction allowed by the Court on future installments for child support should have been made retroactive and given effect as of the date his application for modification was filed is not tenable.…
-
Joan Claire Hender Warrick (formerly known as Joan Claire Hender) v. Hender, 198 So. 2d 348 (Fla. 4th DCA 1967)…quires a vested right in past due installments. Blanton v. Blanton, 1944, 154 Fla. 750, 18 So. 2d 902; Pottinger v. Pottinger, 1938, 133 Fla. 442, 182 So. 762; Van Loon v. Van Loon, 1938, 132 Fla. 535, 182 So. 205. See also Andruss v. Andruss, 1940, 144 Fla. 641, 198 So. 213, for a similar holding with regard to alimony. Where rights have vested or been acquired in good faith under a final decree the courts generally refuse to stay or withhold execution of the decree. Pottinger v. Pottinger, supra. In Pot…
-
Kern v. Kern, 37 Fla. Supp. 111 (Lake Cty. Cir. Ct. 1971)…interest [*112] in periodic child support payments which have become past due under the terms of a final judgment of divorce (Warrick v. Hender, 198 So. 2d 348-350), and similar vested rights in past-due installments for alimony (Andruss v. Andruss, 198 So. 213). She contends that he had no right to withhold periodic child support payments by virtue of the fact that the child was temporarily residing wih him in light of the fact that permanent care, custody and control remained vested in her and that her…
Previewing 3 of 5 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Van Loon v. Van Loon, 132 Fla. 535 (Fla. 1938)
- Gaffny v. Blanche E. Gaffny, 129 Fla. 172 (Fla. 1937)
- Vinson v. Aldine Vinson, 139 Fla. 146 (Fla. 1939)
- Dickenson v. Tallulah Sharpe, 94 Fla. 25 (Fla. 1927)
- Kennard v. Kennard, 131 Fla. 473 (Fla. 1938)
- Thompson v. Thompson, 142 Fla. 643 (Fla. 1940)