THELMA JENNINGS, APPELLANT,
v.
J. C. JENNINGS, APPELLEE
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The court concurred in reversing an order that eliminated required payments, finding that a motion to reduce payments provided sufficient notice for the court to eliminate them entirely, despite a precedent holding otherwise.
A motion to reduce required payments provides sufficient notice for the court to eliminate those payments entirely, even if the motion does not specifically pray for total elimination.
A party moved to modify a final judgment by reducing required payments. The trial court eliminated the required payments entirely. The appellate court…
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LETTS, Judge.
In this case the husband petitioned the court for a modification of alimony “by reducing the amount . . required to be paid.” The court’s order, now appealed from, cancelled the alimony altogether. We reverse.
The petition, on its face, clearly did not seek a cancellation but only a reduction in alimony payments. As a consequence it was error for the trial judge to so rule. Herbert v. Herbert, 304 So. 2d 465 (Fla. 4th DCA 1974).
We would comment that to us the distinction between reduction and cancellation is important. True, the trial judge could perhaps have reduced the alimony to one dollar per year and not have violated the rule of Herbert, supra; however, an award of one dollar would leave open the question of further modification at a later date should changed circumstances justify it. Wilson v. Wilson, 279 So. 2d 893 (Fla. 4th DCA 1973). By contrast, a cancellation of alimony, unappealed from, would not be susceptible to revival later and accordingly we hold that cancellation must be pled in order that the opposing spouse be given adequate notice.
As to the cross-appeal complaining that the trial judge should have granted an accounting, we cannot address it due to the absence of a record. Hall v. Bass, 309 So. 2d 250 (Fla. 4th DCA 1975). Nor can we perceive it to be an abuse of discretion for the trial judge to refuse to award attorneys fees to the husband.
Accordingly, the order is affirmed in all respects except as to the cancellation of alimony. This cause is remanded for further proceedings in that regard consistent herewith, including, if the husband desires it, an amendment of the petition.
ALDERMAN, C. J., concurs.
DOWNEY, J., concurs specially.
DOWNEY, Judge,
specially concurring:
In my judgment, when a party moves to modify a final judgment by reducing the payments required thereunder the other party is on notice that the reduction may be to zero depending upon the evidence adduced.
Thus, if the evidence justifies entirely eliminating the required payments I believe a petition which prays simply for a reduction constitutes a sufficient pleading basis for the court to do so. To reverse a trial court order eliminating required payments which is supported by adequate proof merely because the motion prayed for a reduction rather than for total elimination thereof is unreasonable and a waste of judicial labor which the system can ill afford. There is no lack of notice. The issue is adequately framed by a pleading requesting the payments be reduced. If it appears that there is a possibility the original recipient of the award may need further support in the future the court can retain jurisdiction to consider an application therefor. Herbert v. Herbert, 304 So. 2d 465 (Fla. 4th DCA 1974) holds to the contrary so in the name of consistency we must follow that precedent or recede therefrom. Since the majority chooses to follow Herbert it controls the disposition of this case.
Accordingly, I reluctantly concur in the decision to reverse the order appealed from.
Cases With Similar Vibessemantic neighbors from the corpus
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Elida Pauline Sardinas v. Sardinas, 401 So. 2d 909 (Fla. 4th DCA 1981)…visitation provisions of a dissolution decree which had become final where no pleading had been filed directed to the modification of the decree.” An oral motion of the husband did not satisfy the pleading requirement. See also Jennings v. Jennings, 353 So. 2d 921 (Fla. 4th DCA 1978); Herbert v. Herbert, 304 So. 2d 465 (Fla. 4th DCA 1974); DeWalt v. DeWalt, 305 So. 2d 792 (Fla. 4th DCA 1975). Appellee counters with the argument that the term “reasonable right of visitation” is interpreted in Florida to mean…
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Suzette Reno v. Reno, 884 So. 2d 462 (Fla. 4th DCA 2004)…odify the alimony. See Greene v. Greene, 547 So. 2d 1302, 1304 (Fla. 2d DCA 1989). However, the reverse is not true; when a party seeks the modification of alimony, this does not permit the trial court to terminate alimony. See Jennings v. Jennings, 353 So. 2d 921 (Fla. 4th DCA 1978). This court’s language from Jennings is instructive: The petition, on its face, clearly did not seek a cancellation but only a reduction in alimony payments. As a consequence it was error for the trial judge to so rule. We would…
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Minita Lopez v. Lopez, 920 So. 2d 1165 (Fla. 3d DCA 2006)…altogether is not. Id. “[A] cancellation of alimony, unappealed from, would not be susceptible to revival later and accordingly ... cancellation must be pled in order to put the opposing spouse on adequate notice.” Id. (quoting Jennings v. Jennings, 353 So. 2d 921 (Fla. 4th DCA 1978)). The Court further explained that if the alimony obligation was reduced down to a de minimus amount, and circumstances later changed, the question of further modification would be left open. Id. In the instant case, former husb…
Previewing 3 of 7 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Mazel & Broche, Inc. v. First Fed. Sav. & Loan Ass'n OF Miami, 279 So. 2d 893 (Fla. 3d DCA 1973)
- Herbert v. Herbert, 304 So. 2d 465 (Fla. 4th DCA 1974)
- Hall v. Bass, 309 So. 2d 250 (Fla. 4th DCA 1975)