BETTY ANN HUNTER, APPELLANT,
v.
HOWARD HUNTER, APPELLEE

Fla. 4th DCA | 1978-05-16
No. 77-456
DAUKSCH and MOORE, JJ., concur.
359 So. 2d 500 Florida District Court of Appeal, Fourth District (1978) Positive Treatment
Cited by 10 cases

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Synopsis

This case concerns the extent to which a New York support judgment, including amounts accrued after a Florida dissolution, is enforceable in Florida.


Holding

The Florida trial court correctly recognized the New York support judgment but only to the extent of amounts accrued prior to the Florida dissolution, as the Florida dissolution did not supersede the New York order for post-dissolution support.


Headnotes

[1] A Florida court cannot terminate or modify a prior support order of a sister state in a dissolution proceeding where the spouse is not personally served and does not appe…

[2] A court that has jurisdiction to rule correctly also has jurisdiction to make a mistake, with the remedy for an erroneous ruling being appeal.

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Facts & Procedural History

A New York support order was entered while the parties were married and separated. The husband moved to Florida and a Florida URESA order for child su…

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Opinion of the Court
COWART, JOE A., Jr., Associate Judge.

COWART, JOE A., Jr., Associate Judge.

This is an appeal from a ruling that a New York support judgment was not entitled to be recognized by Florida in its full amount.

While the parties were married but separated and resided in New York the Family Court there entered an order which, after modification, provided support of $100 per week for the plaintiff-wife and $50 per week for each of two children. The defendant-appellee-husband moved to Florida and fell into arrears on his support obligation. The wife commenced a support enforcement action under the New York “Uniform Support of Dependents Law” and Florida, as responding state, accepted the proceeding under § 88.181, Fla.Stat. (1971), of the Uniform Reciprocal Enforcement of Support Law, URESA. Jurisdiction was obtained over the husband and by order dated June 8, 1971, he was required to pay $50 per week support for both children. The husband then sued in Florida for dissolution of the marriage and obtained constructive service of process. The wife did not appear. The final judgment, dated November 29, 1971, dissolved the marriage and required child support in accordance with the URESA support order of June 8, 1971.

Thereafter the Family Court in New York, in an action in which the husband personally appeared with counsel, determined the arrearage under the original New York support order to be $11,600 and on January 16, 1974, entered a support judgment in that amount. This determination gave the husband credit for all payments made under the Florida URESA order and included the additional child support and support for the wife accruing both before and after the Florida dissolution of marriage. When the wife sued in Florida to localize or domesticate the New York support judgment the trial court held that the New York judgment of January 16, 1974, was entitled to recognition in Florida but only in the amount that had accrued under the original New York support order prior to the dissolution of November 29, 1971. The wife appeals.

We agree with both the lower court and the New York court that the Florida URE-SA order did not in any manner modify or supersede the prior New York order of support but that amounts paid under the URE-SA order were to be credited against the sums accrued or accruing under the prior foreign support order. See § 88.281, Fla.Stat. (1971).

The husband argued below, and the trial court apparently agreed, that the New York statute upon which the original support order was based relates to a “husband’s” duty to support a “wife” and that after the Florida dissolution the parties were no longer husband and wife and, therefore, the New York court in entering the supplementary support judgment of January 16, 1974, erred in either not giving effect to the Florida dissolution or in interpreting the New York statute to authorize support in favor of a former wife after the Florida dissolution terminated the marital relationship between the parties.

We hold that the New York court did not fail to give full recognition to the Florida dissolution but that the New York court interpreted New York law to require the continuation of support to the former wife. We cannot hold that the New York court erred in its decision as to New York law. Nor did the New York court “exceed its jurisdiction” in entering judgment for support accruing after the Florida dissolution. Because the Florida dissolution proceeding was based only on constructive service of process, the Florida court could not enter an order regarding support of the wife which would be binding on the wife. The New York court in both the original court proceeding and in the proceeding leading to the supplementary support judgment had jurisdiction over the parties and over the subject matter and would not have lost that jurisdiction even by making an erroneous ruling. A court that has jurisdiction to rule correctly also has jurisdiction to make a mistake. The remedy is by appeal.

In a dissolution proceeding in which the wife is not personally served and in which she does not appear a court cannot terminate or modify a prior support order of a sister state. See Estin v. Estin, 1948, 334 U.S. 541, 68 S.Ct. 1213, 92 L.Ed. 1561, discussed in the article — Divisible Divorce, University of Florida Law Review, Volume III, pages 145, 159. A judgment granting, denying or modifying alimony is a “personal” judgment that can be entered only by a court with jurisdiction in personam over the wife. See Borst v. Borst, 161 So. 2d 693 (Fla.2d DCA 1964) and Zuccarello v. Zuccarello, 280 So. 2d 37 (Fla.3d DCA 1973).

The judgment below is reversed and remanded with directions to give constitutional full force and effect to the New York support order and then enter a judgment thereon in its full amount.

REVERSED AND REMANDED WITH DIRECTIONS.

DAUKSCH and MOORE, JJ., concur.


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Citator

Cited By

  • Mouzon v. Mouzon, 458 So. 2d 381 (Fla. 5th DCA 1984)
    …v. Morning News, 156 U.S. 518, 15 S.Ct. 559, 39 L.Ed. 517 (1895). . See Pawley v. Pawley, 46 So. 2d 464 (Fla.1950), 28 A.L.R.2d 1358, reh. den., 47 So. 2d 546 (Fla.1950), cert. den., 340 U.S. 866, 71 S.Ct. 90, 95 L.Ed. 632 (1950); Hunter v. Hunter, 359 So. 2d 500 (Fla. 4th DCA 1978), rev. den., 365 So. 2d 712 (Fla.1978). . See Palmer v. Palmer, 353 So. 2d 1271 (Fla. 1st DCA 1978); Rosen v. Rosen, 306 So. 2d 546 (Fla. 3d DCA 1974). . Notwithstanding that the title to section 48.-194, Florida Statutes, refer…
  • Chapman v. Lamm, 388 So. 2d 1048 (Fla. 3d DCA 1980)
    …pears that Chapman was not personally served in the dissolution proceeding. Jurisdiction procured through service by publication will not support an order for contempt for failure to pay support contained in the final judgment. See Hunter v. Hunter, 359 So. 2d 500 (Fla. 4th DCA 1978); Palmer v. Palmer, 353 So. 2d 1271 (Fla.1st DCA 1978); and Carnes v. Carnes, 256 So. 2d 550 (Fla.4th DCA 1972). It is suggested that Chapman later appeared and submitted himself to the jurisdiction of the court. See Keena v. Keen…
  • Brogan v. Mullins, 452 So. 2d 940 (Fla. 5th DCA 1984)
    …mmon-law certiorari being used as a vehicle to obtain a second appeal. . See Wehle and Belcher, Prohibition in Florida, 4 Fla.L.Rev. 546 (1951). . School Board of Marion County v. Angel, 404 So. 2d 359 (Fla. 5th DCA 1981). . See Hunter v. Hunter, 359 So. 2d 500 (Fla. 4th DCA 1978), rev. den., 365 So. 2d 712 (Fla.1978). .The Reino court considered the supreme court’s exclusive jurisdiction in capital cases but appeared in Reino to discard it as a relevant jurisdictional factor. However the supreme court in…

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