EDDIE LEE PURVIS AND CHARLOTTE FAYE PURVIS, APPELLANTS,
v.
LARRY GENE CARVER, APPELLEE
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The court reversed a trial court's summary modification of visitation rights in a final dissolution of marriage decree, holding that the chancellor lacked jurisdiction to modify a final decree without a formal pleading requesting modification, even though an oral motion was made at a hearing on rules to show cause.
The trial court lacked jurisdiction to summarily modify the visitation provisions of a final dissolution decree without a formal pleading directed to the modification. An oral motion does not satisfy the requirement that a pleading is necessary to modify a final decree.
[1] A trial court lacks jurisdiction to summarily modify visitation provisions of a final dissolution decree where no pleading has been filed seeking such modification.
[2] An oral motion is insufficient to satisfy the pleading requirement for modifying a final dissolution decree.
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Join FLexlaw to unlock all legal intelligence“the chancellor was without jurisdiction to summarily change the visitation provisions of a dissolution decree which had become final where no pleading had been filed directed to the modification of the decree”
Establishes the core holding that formal pleadings are required to modify final decrees
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Join FLexlaw to unlock all legal intelligenceAfter Charlotte Faye Purvis and Larry Gene Carver's marriage was dissolved, a hearing was held on rules to show cause filed by both parties. At that h…
The full statement of facts, procedural history, and disposition for this case are member content.
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MAGER, Judge.
Upon consideration of the brief of appellant, oral argument and the record herein 1 we are of the opinion that the trial court erred in summarily modifying those portions of a final judgment of dissolution dealing with visitation rights. The record reflects that some time subsequent to the dissolution of marriage between Charlotte Faye Purvis (formerly Charlotte Faye Carver), appellant, and Larry Gene Carver, appellee, a hearing was held on rules to show cause filed by the respective parties at which time an oral motion was made by appellee’s attorney for additional visitation rights which was granted by the court.
We adopt the rationale set forth in Lourcey v. Lourcey, Fla.App.1971, 256 So. 2d 25, and conclude that the chancellor was without jurisdiction to summarily change the visitation provisions of a dissolution decree which had become final where no pleading had been filed directed to the modification of the decree. As stated in Lourcy, “The oral motion made by the defendant (appellee) does not satisfy the requirement that a pleading is necessary”.
Accordingly, that portion of the order modifying visitation rights is set aside and the visitation rights set forth in the final judgment of dissolution are reinstated without prejudice to further consideration of this matter by the trial court upon filing appropriate pleadings. In all other respects the order appealed is affirmed.2
Affirmed, as modified.
OWEN, C. J., and CROSS, J., concur. . Appellee has not filed a brief in this appeal and has thereby forfeited the right to oral argument. See Rule 3.7, subd. b, F.A.R.; see also Holden v. City of Fort Lauderdale, Fla.App.1973, 286 So. 2d 218, f.n. 4.
. The court is unable to determine whether there was any abuse of discretion in the conduct of the contempt proceedings below because of the insufficiency of the record on appeal. Pryor v. Pryor, Fla.App. 1973, 274 So. 2d 242. Moreover, although the appellant refers to a ‘‘statement of facts”, no such document appears in the record. Lastly, it is within the power of the court to assess a compensatory fine to be paid by the wrongdoing party to the party injured. South Dade Farms v. Peters, Fla.1956, 88 So. 2d 891.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By (12 total)
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Smithwick v. Smithwick, 343 So. 2d 945 (Fla. 3d DCA 1977)…ed 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 alimony and child support payments provided in the se…
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Brady v. Jones, 491 So. 2d 1272 (Fla. 2d DCA 1986)…iction 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 proper pleadings have not been filed. Childress v. Childr…
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Elida Pauline Sardinas v. Sardinas, 401 So. 2d 909 (Fla. 4th DCA 1981)…espects outlined above, done on hearing Rosalind’s motion to vacate the contempt order, were without any appropriate pleadings therefor and advance notice of hearing on such modification matters. Id. at 137. Similarly, we held in Purvis v. Carver, 303 So. 2d 681, 682 (Fla. 4th DCA 1974), “that the chancellor was without jurisdiction to summarily change the visitation provisions of a dissolution decree which had become final where no pleading had been filed directed to the modification of the decree.” An ora…
Previewing 3 of 12 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Yair Barak v. ACS Int'l Projects, Ltd. (Fla. 3d DCA 2021)
- S. Dade Farms, Inc. v. Peters, 88 So. 2d 891 (Fla. 1956)
- Holden v. City OF Fort Lauderdale, 286 So. 2d 218 (Fla. 4th DCA 1973)
- Lourcey v. Lourcey, 256 So. 2d 25 (Fla. 1st DCA 1971)
- Pryor v. Pryor, 274 So. 2d 242 (Fla. 1st DCA 1973)