A. B. CONNOLLY, PETITIONER,
v.
MARY Z. CONNOLLY, RESPONDENT

Fla. | 1956-03-14
DREW, C. J., and ROBERTS and O’CONNELL, JJ., concur.
86 So. 2d 167 Florida Supreme Court (1956) Positive Treatment
Cited by 14 cases

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Synopsis

A divorced father appealed an order denying his petition to modify child support payments, arguing that the youngest child's enlistment in the navy and government support eliminated the need for continued payments. The Florida Supreme Court denied the petition for certiorari, holding that the appellant failed to provide the trial court testimony necessary for appellate review.


Holding

The petition for certiorari was denied. The Court held that the appellant failed to fulfill its appellate duty to provide a certified transcript of the sworn testimony heard by the chancellor, making it impossible for the appellate court to review the chancellor's decision based on actual evidence rather than unverified petition allegations.


Key Quotes

“It is based solely on representations in the unsworn petition for modification without regard for the recital in the chancellor's order.”

Establishes that the appellant's argument relied on unverified allegations rather than the record of sworn testimony actually heard by the trial court.

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Facts & Procedural History

On June 20, 1940, the appellee was granted a divorce and custody of three sons. The appellant was ordered to pay $75 monthly for child support until a…

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Opinion of the Court
THOMAS, Justice.

THOMAS, Justice.

On 20 June 1940 the appellee was granted a divorce from the appellant and was awarded the custody of the three sons of the parties. It was decreed, in accordance with the stipulation of the litigants, that the appellee should receive no alimony,- but the appellant was ordered to pay to her the sum of $75 each month until “all of the said children have-reached their majority.”

Almost fifteen years later the appellant petitioned the court for a modification of the final decree representing that in 1944 the periodic payments had been reduced to $50 monthly, one of the sons having become of age, and that meanwhile another son had also reached his majority. The youngest son, according to the petition, had enlisted in the navy for a period of two years, was receiving from the government food, housing, clothing, medical care and compensation of $200 a month, and at the conclusion of his enlistment would be twenty-one and entitled to five years’ schooling at the expense of tire government.

The petitioner prayed relief from any further payments. The chancellor denied the petition.

The appellant filed a notice of appeal which because of the provisions of Section 59.45, Florida Statutes 1953, and F.S.A., we will consider a petition for certiorari, inasmuch as the order attacked was entered subsequent to the final decree, Section 59.02(2) and (3), Florida Statutes 1953, and F.S.A. The appellant argues that by the very terms of the decree the allotment was made for the “support of the children” and that, clearly, the appellee is no longer put to any expense for the purpose so the reason for the award has ceased.

The argument is forceful but it lacks support in the record. It is based solely on representations in the unsworn petition for modification without regard for the recital in the chancellor’s order. He stated that he had “read and considered the * * * petition” and had “heard the sworn testimony of the plaintiff [appellee] and her witness * * No record of this testimony is brought to us and, as we construe the order, no testimony was introduced by the defendant, appellant, which could have been brought.

Under the rule relative to certiorari the petition “shall be accompanied by a certified transcript of the record of the proceedings the petitioner seeks to have reviewed or so much thereof as is essential.” Supreme Court Rule No. 22, 30 F.S.A. It was the appellant’s duty to exhibit to this court a transcript of the testimony to which the chancellor referred. For aught this court knows the allegations of the petition were disproved. One challenging in this court the correctness of a chancellor’s ruling is bound to show error and this cannot be accomplished if we are not shown the record on which the decision was founded.

The matter is resolved into the question whether or not we may upset the ruling of a chancellor based on testimony of which we are ignorant by accepting at face value the unverified averments of a petition. We think not. Such procedure would be opposed to our numerous decisions on the subject. Cohen v. Cohen, Fla., 70 So. 2d 362.

The petition for certiorari is denied.

DREW, C. J., and ROBERTS and O’CONNELL, JJ., concur.


Cases With Similar Vibessemantic neighbors from the corpus


Citator

Cited By

  • Kissling v. McCARTHY, 100 So. 2d 434 (Fla. 3d DCA 1958)
    …It should be noted that the order appealed from was a post-final-decree order. Being interlocutory in nature, it was reviewable at the time of this appeal by writ of certiorari. Section 59.02(3), Fla. Stat., F.S.A.; Connolly v. Connolly, Fla.1956, 86 So. 2d 167; Scheuermann v. Shamas, Fla.App.1957, 97 So. 2d 314. However, in accordance with section 59.45, Fla.Stat., F.S.A., the notice of appeal will be treated as a petition for certiorari. See Smehyl v. Hammond, Fla.1950, 44 So. 2d 678; Scheuermann v. Sham…
  • Scheuermann v. Shamas, 97 So. 2d 314 (Fla. 3d DCA 1957)
    …l was taken from a post-final-decree order. Such an order being interlocutory in nature, the proper method of obtaining review at the time of this appeal was by writ of certiorari. Section 59.02(3), Fla.Stat., F.S.A.; Connolly v. Connolly, Fla.1956, 86 So. 2d 167. However, under Section 59.45, Fla.Stat., F.S.A., the notice of appeal will be considered as a petition for certiorari. Cf. Smehyl v. Hammond, Fla. 1950, 44 So. 2d 678; and Thomas Jefferson, Inc., v. Hotel Employees Union, Fla.1955, 81 So. 2d 731, 7…
  • Forehand v. The Bd. OF Pub. Instruction OF Duval Cnty., 166 So. 2d 668 (Fla. 1st DCA 1964)
    ….” The record of the proceedings before the Civil Service Board was not a part of the record before the circuit court and it was therefore impossible to specifically determine the nature of the proceeding before that board. See Connolly v. Connolly, 86 So. 2d 167 (Fla.1956). The circuit court correctly held that in view of its decision upon the matter next discussed, the question of whether or not the Civil Service Board held a “hearing” or an “investigation” was of no consequence. The order appealed reveal…

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