FRANK J. ALTIERI, APPELLANT,
v.
GRACE ALTIERI, APPELLEE
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This appeal challenges a contempt order entered after a final divorce judgment. The court affirmed the trial court's order requiring the appellant to pay accumulated alimony arrearages but reversed the requirement to clear federal tax liens from the marital home, and remanded for findings on the appellant's ability to pay the arrearage.
The trial court was correct in requiring payment of alimony arrearages that accumulated due to the appellant's failure to comply with conditions for alimony reduction. However, the court lacked authority to impose the new duty of clearing tax liens in a post-judgment order, as this was not addressed in the final divorce judgment. The case is remanded for findings on the appellant's ability to pay the arrearage.
[1] An appellate court may treat an appeal from a post-judgment order as an interlocutory appeal, even if not designated as such, in the exercise of its discretion.
[2] A trial court cannot impose new duties in a post-judgment order that were not adjudicated in a prior final decree.
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Join FLexlaw to unlock all legal intelligence“A trial court does not possess the power to impose in a post-judgment order new duties not adjudicated in a former decree which has become final and absolute.”
Establishes the key principle that the trial court exceeded its authority by requiring tax lien clearance, a duty not addressed in the final divorce judgment.
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Join FLexlaw to unlock all legal intelligenceIn the December 1971 final divorce judgment, the appellee Grace Altieri received the marital home and the appellant Frank Altieri was required to conv…
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PER CURIAM.
This is an appeal from an order of contempt entered by the trial court on May 19, 1975, subsequent to the entry of final judgment of dissolution of marriage. The proper procedure for presenting this post-judgment order for appellate review would have been by interlocutory appeal, brought under the provisions of Rule 4.2, Florida Appellate Rules. However, since a full appeal has been taken we, in the exercise of our discretion, treat and consider the appeal as an interlocutory appeal, even though not designated as such in the notice of appeal. See Crepaldi v. Wagner, 128 So. 2d 759 (Fla. 1st DCA 1961); Lane v. Exmoor School, Inc., 128 So. 2d 773 (Fla. 3d DCA 1961); Small v. Small, 313 So. 2d 749 (Fla.1975).
In the final judgment of dissolution of marriage entered by the trial court on December 22, 1971, appellee Grace Altieri, as part of the permanent alimony awarded to her, was awarded the former marital home of the parties. Appellant Frank J. Altieri was ordered to convey his interest in that property to appellee and “to continue to pay the mortgage payments upon the said marital home until the mortgage lien has been liquidated in full”. The final judgment places no further or other obligations upon appellant with respect to the marital home. Further, the final judgment required appellant to keep in full force and effect certain insurance policies on his life, with appellee Grace Altieri as beneficiary. The Internal Revenue Service then levied against the property to satisfy liens totaling $16,534.44 for federal income taxes unpaid from 1967 to 1971. All of those tax liens, except one for 1971 taxes, were recorded before the entry of the final judgment of dissolution.
Appellant borrowed against the life insurance policies, permitted certain policies to lapse for nonpayment of premiums and fell behind in his permanent alimony payments which had been reduced from $75 to $50 weekly on condition that appellant reinstate lapsed policies and restore them to full force and effect. Appellant did not comply with those conditions.
In the order of contempt which appellant now challenges, the trial court required appellant to clear the marital home of the tax liens, directed him to pay appellee $3,700.00 in defaulted alimony or be committed to the county jail for a term of six months “or until he shall purge himself by such payment,” and found that appellant was in contempt because of his borrowings against the life insurance policies.
The order of contempt is deficient in that the trial court made no finding concerning appellant’s ability to pay or, assuming appellant’s inability to pay, that his inability was his own fault. Faircloth v. Faircloth, 339 So. 2d 650 (Fla.1976). That decision has intervened since the circuit court’s decision in this case.
The court erred in requiring appellant to pay outstanding tax liens against the marital home or be held in contempt. As previously noted, the final judgment did not address that issue despite the fact that all but one of the liens were in existence at the time of the entry of the final judgment. A trial court does not possess the power to impose in a post-judgment order new duties not adjudicated in a former decree which has become final and absolute. Mintz v. Ellison, 233 So. 2d 156 (Fla. 3d DCA 1970); McEachin v. McEachin, 154 So. 2d 894 (Fla. 1st DCA 1963). The trial court was without authority to alter the respective rights and obligations of the parties which became fixed by the terms of the final judgment of dissolution of marriage.
The trial court was correct in ordering appellant to pay appellee arrearages in alimony which, because appellant failed to comply with conditions imposed for the reduction of weekly alimony payments, continued to accumulate during the period in which appellant’s life insurance policies were lapsed or reduced from full value by his borrowings. We are not here concerned with the propriety of the trial court’s original order concerning those policies, because the final dissolution judgment became final without appeal by either party.
The case will be remanded for determination and findings concerning appellant’s ability to pay at the time of the contempt hearing and for further proceedings consistent with this decision.
AFFIRMED IN PART, REVERSED IN PART.
BOYER, C. J., SMITH, J., and COX, JOHN S., Associate Judge, concur.
Cases With Similar Vibessemantic neighbors from the corpus
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Hamra v. Hamra, 350 So. 2d 538 (Fla. 3d DCA 1977)…previously had the ability to comply, but divested himself of that ability through his fault or neglect designed to frustrate the intent and purpose of the order.” Faircloth v. Faircloth, 339 So. 2d 650, 651 (Fla.1976). See also Altieri v. Altieri, 341 So. 2d 525 (Fla. 1st DCA 1977); Pearce v. Pearce, 341 So. 2d 282 (Fla. 1st DCA 1977). No such finding is contained in the contempt order in this case. Accordingly, the order appealed from is reversed and the cause remanded to the trial court to make the above…
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Katz v. Mervyn Katz, 417 So. 2d 818 (Fla. 4th DCA 1982)…ed the general rule “that a final decree in an equity suit settles all property rights of the parties and bars any action thereafter brought by either party to determine the question of property rights.” Id. at 423-24. Similarly, Altieri v. Altieri, 341 So. 2d 525 (Fla. 1st DCA 1977), held that “[a] trial court does not possess the power to impose in a post-judgment order new duties not adjudicated in a former decree which has become final and absolute.” Id. at 527; see also, Cooper v. Cooper, 69 So. 2d 881 (…
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Neal v. Neal, 403 So. 2d 621 (Fla. 5th DCA 1981)…out a specific reservation of jurisdiction the trial court lost jurisdiction over the entire case except to enforce the exact terms of the original judgment. Superior Uniforms, Inc. v. Brown, 221 So. 2d 214 (Fla.3d DCA 1969). See Altieri v. Altieri, 341 So. 2d 525 (Fla. 1st DCA 1977); Mintz v. Ellison, 233 So. 2d 156 (Fla.3d DCA 1970). The matters contained in the judgment were final, settled and res judicata. The two orders now on appeal before us are the orders of another successor judge; the first of whic…
Previewing 3 of 6 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Faircloth v. Faircloth, 339 So. 2d 650 (Fla. 1976)
- McEACHIN v. Dalton H. McEACHIN, 154 So. 2d 894 (Fla. 1st DCA 1963)
- Mintz v. Ellison, 233 So. 2d 156 (Fla. 3d DCA 1970)
- In re Crepaldi v. Wagner, 128 So. 2d 759 (Fla. 1st DCA 1961)
- Small v. Small, 313 So. 2d 749 (Fla. 1975)
- Lane v. Exmoor Sch., Inc., 128 So. 2d 773 (Fla. 3d DCA 1961)