MARCELLA SCHETTER, APPELLANT,
v.
C. B. SCHETTER AND ERNEST TASHEA ET AL., APPELLEES
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In this dissolution of marriage proceeding, the wife appeals an amended final judgment issued on remand following a prior appellate decision. The court reverses portions of the amended judgment where the trial court exceeded its mandate by shifting court costs to the wife, awarding ABC Answering Service to Tashea instead of the wife, and unilaterally determining furniture ownership, while affirming the disposition of proceeds from a disputed account.
The court reversed the provisions taxing costs to the wife, leaving ABC Answering Service ownership with Tashea (it should have been split equally), and determining furniture ownership unilaterally, as these exceeded the trial court's mandate. The court affirmed the provision regarding equal division of the Goodbody & Company account proceeds.
[1] A trial court exceeds its mandate on remand when it makes amendments to a final judgment that were not contemplated or ordered by the appellate court.
[2] An appellate court's mandate dictates the scope of proceedings on remand, and trial courts are bound to adhere strictly to its instructions.
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Join FLexlaw to unlock all legal intelligence“Upon remand, however, the trial court went beyond the confines of this mandate”
Establishes the core issue—that the trial court exceeded the scope of its appellate mandate
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Join FLexlaw to unlock all legal intelligenceMarcella Schetter was in dissolution proceedings against her husband C.B. Schetter and third-party Ernest Tashea. In a prior appeal, the court had par…
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WALDEN, Chief Judge.
The wife in this dissolution action appeals from the amended final judgment. In a previous appeal, Schetter v. Schetter, 279 So. 2d 58 (4th DCA Fla.1973), this court partially reversed the final judgment and remanded with instructions that the wife be allowed to recover all properties she had conveyed to Tashea. The rest of the final judgment was affirmed, specifically the provision that the husband was entitled to one-half of all assets heretofore belonging to both or either of the parties to the marriage.
Upon remand, however, the trial court went beyond the confines of this mandate, Bryan and Sons Corp. v. Klefstad, 265 So. 2d 382 (4th DCA Fla.1972); Fairfax Broadcasting Company v. Florida Automotive, Inc., 252 So. 2d 854 (4th DCA Fla.1971).
The portion of the final judgment reversed, provided:
“MARCELLA SCHETTER be, and she is hereby estopped from recovering any property she has conveyed to ERNEST R. TASHEA. This shall particularly include the assets listed in the preceding paragraph.”
The trial court went beyond the scope of its mandate when, on remand, it ordered that the wife should be responsible for court costs for which in the final judgment Tashea had been responsible. While we are in sympathy with the motives of the trial court, that taxation of costs should follow the award of assets, this amendment went beyond the scope of the trial court’s mandate and must be reversed.
Likewise, we reverse that portion of the amended final judgment wherein Tashea is allowed to retain the ownership of ABC Answering Service, Inc. This court held that the wife should be allowed to recover all assets she had conveyed to Tashea. As ABC Answering Service, Inc. was acquired with funds of the wife, she and husband should each have been granted a one-half interest in that corporation.
Lastly, in the amended final judgment the trial court noted that the parties had approved the sale of their home, and further determined that the furniture in the house belonged to Tashea. The furniture was not mentioned specifically in the final judgment. When all provisions of the final judgment were affirmed, with the exception noted, the judgment became a judgment of the appellate court and, as such, was not subject to interference by the trial court without specific permission. Acme Specialty Corporation v. City of Miami, 292 So. 2d 379 (3rd DCA Fla. 1974); Jefferson National Bank at Sunny Isles v. Metropolitan Dade County, 285 So. 2d 445 (3rd DCA Fla.1973). This determination was an unauthorized amendment to the final judgment and must be reversed. City of Miami Beach v. Arthree, Inc., 300 So. 2d 65 (3rd DCA Fla.1973).
We affirm the provision of the amended final judgment concerning the disposition of the monies in the Goodbody & Company account. By the provisions of the original final judgment this account was made subject to litigation. Subsequent to the final judgment, this dispute was litigated. Hence, in accord with the provisions of the final judgment, the trial court correctly determined that both the husband and wife are entitled to one-half of the proceeds.
In summary, we reverse those provisions of the trial court’s Amended Final Judgment taxing costs to the wife, leaving the ownership of ABC Answering Service, Inc., in Tashea and determining that Tash-ea owned the furniture. We affirm the provision concerning the Goodbody & Company account.
AFFIRMED IN PART; REVERSED IN PART.
DOWNEY, J., and LEE, THOMAS E., Associate Judge, concur.
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Cited By
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Mendelson v. Lavine Mendelson, 341 So. 2d 811 (Fla. 2d DCA 1977)…is more firmly established than the one which provides that a [*814] trial court utterly lacks the power to deviate from the terms of an appellate mandate. City of Miami Beach v. Arthree, Inc., 300 So. 2d 65 (Fla.3rd DCA 1973); Schetter v. Schetter, 330 So. 2d 150 (Fla.4th DCA 1976); Ohio Casualty Group v. Parrish, 338 So. 2d 910 (Fla.3rd DCA 1976).6 Upon our affirmance of the order granting a new trial, the Circuit Court had no authority to do anything but to schedule one. We reverse the final judgment and d…
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John Crescent, Inc. v. Collins E. Peterson and Margaret E. Peterson, 401 So. 2d 1150 (Fla. 4th DCA 1981)…into effect the order and judgment of this Court. Absent permission to do so, the trial court was without authority to alter or evade the mandate of this Court. The trial court could not go beyond the confines of the mandate. Schetter v. Schetter, 330 So. 2d 150 (Fla. 4th DCA 1976). The judicial sale held on April 25, 1977, should have been revived and the certificate of title should have been reinstated nunc pro tunc May 6, 1977, its date of issuance to the petitioner here. Any action necessary to effect t…
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The Ohio Cas. Grp. v. Parrish, 338 So. 2d 910 (Fla. 3d DCA 1976)…the provisions of a final judgment are affirmed on appeal, that judgment becomes a judgment of the appellate court. Without specific permission by the appellate court, that judgment cannot be interfered with by the trial court. Schetter v. Schetter, 330 So. 2d 150 (Fla.4th DCA 1976). See also Lesperance v. Lesperance, 257 So. 2d 66 (Fla.3d DCA 1971). We have considered the record, all points in the briefs and arguments of counsel in the light of the controlling principles of law, and have concluded that no r…
Authorities Cited
- Bryan & Sons Corp. v. Sivert Klefstad, 265 So. 2d 382 (Fla. 4th DCA 1972)
- City OF Miami Beach v. Arthree, Inc., 300 So. 2d 65 (Fla. 3d DCA 1973)
- Acme Specialty Corp. v. City OF Miami, 292 So. 2d 379 (Fla. 3d DCA 1974)
- Fairfax Broad. Co. v. Fla. Airmotive, Inc., 252 So. 2d 854 (Fla. 4th DCA 1971)
- Schetter v. Schetter, 279 So. 2d 58 (Fla. 4th DCA 1973)
- Jefferson Nat'l Bank AT Sunny Isles v. Metro. Dade Cnty., 285 So. 2d 445 (Fla. 3d DCA 1973)