Johnson v. Ferguson, 80-552
| Decision Date | 06 May 1980 |
| Docket Number | No. 80-552,80-552 |
| Citation | 383 So.2d 715 |
| Parties | Cecilia A. JOHNSON, Petitioner, v. Hon. Ralph B. FERGUSON, Jr., Judge of the Circuit Court of the EleventhJudicial Circuit in and for Dade County, Florida, Respondent. |
| Court | Florida District Court of Appeals |
Cecilia A. Johnson, in pro. per.
I. Richard Jacobs, Miami, for respondent.
Before HENDRY, NESBITT and BASKIN, JJ.
In this petition for writ of mandamus, we are asked to order respondent, Honorable Ralph B. Ferguson, Jr., to rescind his order compelling the immediate sale of the former marital home of the parties. We find the circuit court judge exceeded his jurisdiction in entering the order and grant the petition for writ of mandamus.
Under the terms of a final judgment dissolving the marriage, case number 78-16336 FC (04), petitioner was awarded the right to remain in the marital home until the minor child reached the age of eighteen. The husband and wife were each ordered to pay half the mortgage payments on the property, which the parties now own as tenants in common.
Neither party paid his share of the mortgage payments, and a final judgment foreclosing the mortgage was entered in Oritani Savings and Loan Association v. James B. Johnson and Cecilia A. Johnson, case number 79-15275. The home was ordered to be sold in accordance with the mortgage foreclosure proceedings. A stay of the foreclosure sale has been granted until May 23, 1980.
The trial court, in the dissolution proceeding, entered an order compelling the showing of and the immediate sale of the former marital home. It is this order petitioner seeks to have rescinded on the ground that her right to the property vested upon rendition of the final judgment of dissolution.
We grant the petition for writ of mandamus because we find the trial court lacked jurisdiction to order an immediate sale of the home. The order of the trial court was entered more than a month after the final judgment of dissolution and after the notice of appeal had been filed. The trial court, therefore, lacked jurisdiction to enter the order compelling sale. Gross v. Simanonok, 366 So.2d 47 (Fla. 2d DCA 1978) and Liberman v. Rhyne, 248 So.2d 242 (Fla. 3d DCA 1971). Respondent relies upon rule 9.600(c), Florida Rules of Appellate Procedure, which allows the lower court to retain jurisdiction to enter and enforce orders necessary to protect the welfare and rights of any party pending appeal. We hold that the order requiring the...
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Bailey v. Bailey, 80-903
...by the rule on the theory that they are made to protect the welfare and rights of the parties. See, e. g., Johnson v. Ferguson, 383 So.2d 715 (Fla. 3d DCA 1980). ...
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Campbell v. Campbell, 82-233
...the trial court has no jurisdiction to modify the very order appealed from, during the pendency of the appeal. In Johnson v. Ferguson, 383 So.2d 715 (Fla. 3d DCA 1980), the court held that pending an appeal of a final judgment of dissolution, the trial court had no jurisdiction to enter an ......
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Floyd v. Floyd, 86-2170
...is without jurisdiction to alter an order or judgment once an appeal from that order or judgment has been filed. Johnson v. Ferguson, 383 So.2d 715 (Fla. 3d DCA 1980); Gross v. Simanonok, 366 So.2d 47 (Fla. 2d DCA We point out that our reversal of the orders under review means that the righ......
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Carneal v. Carneal, 5D04-1049.
...PETERSON, R.B. ORFINGER and MONACO, JJ., concur. 1.See Merian v. Merhige, 690 So.2d 678 (Fla. 3d DCA 1997) and Johnson v. Ferguson, 383 So.2d 715 (Fla. 3d DCA 1980) for construction of rule 9.600 and an explanation of loss of jurisdicition by a trial court when issues on a pending appeal ov......