MARCIA D. PROTHEROE, PETITIONER,
v.
M. VINCENT PROTHEROE, RESPONDENT; M. VINCENT PROTHEROE, APPELLANT, V. MARCIA D. PROTHEROE, APPELLEE
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The court quashed the District Court's opinion affirming alimony modification without a showing of changed circumstances.
[1] An award of alimony cannot be modified by termination at a set date without a finding of a change of circumstances by the trial court.
[2] A District Court of Appeal opinion affirming modification of an alimony award without a showing of changed circumstances should be quashed.
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Join FLexlaw to unlock all legal intelligenceThe trial court terminated alimony on a set date without finding a change of circumstances, which the District Court affirmed. Subsequently, the parti…
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OVERTON, Chief Justice.
Certiorari was initially granted in this cause because of an apparent conflict between the instant decision of the First District Court of Appeal reported at 300 So. 2d 748 (Fla.App. 1st 1974), and Chastain v. Chastain, 73 So. 2d 66 (Fla.1954), Gamse v. Gamse, 291 So. 2d 620 (Fla.App. 3d 1974), and DeFrancisco v. DeFrancisco, 273 So. 2d 780 (Fla.App. 2d 1973).
The issue concerns the modification of an award of alimony by termination at a set date without a finding of a change of circumstances by the trial court and its approval by the District Court of Appeal. The trial court in an order dated May 1, 1973 terminated the alimony as of May 1, 1974. The opinion of the District Court of Appeal extended the termination date to May 1, 1976, and acknowledged there was no change of circumstances.
While the petition for certiorari was pending in this Court, a motion to relinquish jurisdiction was made by the respondent requesting that we allow him to petition for modification of the alimony award based upon changed circumstances occurring subsequent to the order of modification on review before this Court. We granted the motion. The trial court found that there were in fact changed circumstances subsequent to the date' of the prior order and entered a modified order so stating April 29, 1975. The District Court opinion was in conflict because it acknowledged there were no changed circumstances in the record justifying the modification in the first order. The factual circumstances between the parties now have changed, and the practical effect of the first order which is before this Court for review is moot.
The opinion of the District Court of Appeal is quashed to the extent that it affirms modification of an alimony award without a showing of changed circumstances. We express no opinion on the modified order of the trial court dated April 29, 1975, which was consolidated here with the original certiorari proceeding. We transfer it without prejudice to the District Court of Appeal.
It is so ordered.
ROBERTS, ADKINS, BOYD, ENGLAND, SUNDBERG and HATCHETT, JT., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Nowell v. Nowell, 634 So. 2d 235 (Fla. 1st DCA 1994)…at the former husband had proven a permanent, substantial and material change in the circumstances of 'her need for permanent alimony or in his ability to pay the alimony which would justify terminating the alimony award. See Protheroe v. Protheroe, 328 So. 2d 417 (Fla.1976). We do not find that this record would support such a finding, but even if it would, the trial court has the authority only to terminate alimony as of the date the motion for termination was filed, or subsequent thereto. See McArthur v. M…
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Protheroe v. Protheroe, 332 So. 2d 95 (Fla. 1st DCA 1976)…da, upon granting certiorari, said: “The Opinion of the District Court of Appeal is quashed to the extent that it affirms modification of an alimony award without a showing of changed circumstances. * * * ” (Protheroe v. Protheroe, Sup.Ct.Fla.1976, 328 So. 2d 417, Opinion filed March 3, 1976) It is clear from the foregoing that the Supreme Court’s quashal of this Court’s opinion had the effect of rendering for naught the order of the trial judge dated May 23, 1973, modifying the final judgment by limiting t…
Authorities Cited
- Chastain v. Chastain, 73 So. 2d 66 (Fla. 1954)
- Gwenn Cantor Gamse v. Edmond Gamse, 291 So. 2d 620 (Fla. 3d DCA 1974)
- Valle v. State, 273 So. 2d 780 (Fla. 1st DCA 1973)
- Protheroe v. Protheroe, 300 So. 2d 748 (Fla. 1st DCA 1974)