Campbell v. Campbell, 82-233

• Decision Date: 18 August 1983
• Docket Number: No. 82-233,82-233
• Citation: 436 So.2d 374
• Parties: Gary W. CAMPBELL, Appellant/Cross Appellee, v. Chalermsri V. CAMPBELL, Appellee/Cross Appellant.
• Court: Florida District Court of Appeals

Page 374

436 So.2d 374

Gary W. CAMPBELL, Appellant/Cross Appellee, v. Chalermsri V. CAMPBELL, Appellee/Cross Appellant.

No. 82-233.

District Court of Appeal of Florida,

Fifth District.

Aug. 18, 1983.

Devo A. Heller of Brinson, Smith, Heller & Smith, P.A., Kissimmee, for appellant/cross appellee.

Addison E. Walker, St. Cloud, for appellee/cross appellant.

ON MOTION TO REVIEW

ORFINGER, Chief Judge.

After this appeal was filed, the former husband filed a petition in the trial court seeking to modify the alimony and support provisions of the final judgment, alleging changed circumstances in that his earnings had been severely diminished since the final judgment was entered. The former wife challenged the trial court's jurisdiction to consider the petition during the pendency of this appeal, but the trial court overruled the objections on the ground that Florida Rule of Appellate Procedure 9.600(c) permitted it to entertain the petition.

The trial court then proceeded to hear testimony on the petition, after which it entered an order on February 1, 1983, in which it found that there had been a substantial change of circumstances in that the husband had been partially unemployed subsequent to the final judgment and had later become employed at a substantially reduced salary. The order modified the final judgment by reducing the child support to $50.00 per week (the equivalent of $216.66 per month) and by reducing the alimony award to $20.00 per week ($86.66 per month). The trial court specifically held that it was making no ruling as to the reasonableness, excessiveness or insufficiency of child support and alimony as previously awarded, which issues were on appeal, "... but is ruling only as to the modification sought on the basis of a substantial change of circumstances." ¹ The former wife has filed a motion for review of the February 1, 1983, order, pursuant to Rule 9.600(c).

The wife contends that the trial court had no jurisdiction to modify the original final judgment, albeit on a finding of changed circumstances, because of the pendency of this appeal. Florida Rule of Appellate Procedure 9.600(c) says:

In dissolution of marriage actions the lower tribunal shall retain jurisdiction to enter and enforce orders awarding separate maintenance, child support, alimony, or other awards necessary to protect the welfare and rights of any party pending appeal, including costs and attorney's fees. The review of such orders shall be by motion filed in the court within 30 days of rendition. The receipt or payment of funds under an order awarding separate maintenance, child support or alimony shall not prejudice the rights of appeal of any party.

This rule clearly restricts the trial court's powers to the entry of "orders ... or awards necessary to protect the welfare and rights of any party pending appeal." (Emphasis ours). This is a limited jurisdiction and is calculated to protect the party seeking or needing relief until the appellate court decides the issue on appeal. Of course, this view presupposes that the subject matter of the post-appeal order involves the subject matter on appeal, because in such case it seems to be well settled that the trial court has no jurisdiction to interfere with the subject matter on appeal.

This general proposition of law has been recognized in numerous cases involving post-appeal orders in dissolution cases. In Kalmutz v. Kalmutz, 299 So.2d 30 (Fla. 4th DCA 1974), the court noted:

There is a serious question as to the authority of the trial court to enter a temporary order affecting the merits of the cause involved in the main appeal or which would have the effect of rendering the main appeal moot. Willey v. W.J. Hoggson Corporation, 1925, 89 Fla. 446, 105 So. 126; State v. Robles, 1933, 109 Fla. 528, 147 So. 910. Unquestionably the trial court has the power to grant temporary relief pending appeal and possesses the inherent power and authority to take such action as justice and equity requires. It would appear, however, that when the jurisdiction of the appellate court attaches it is exclusive as to the subject covered by the appeal; so that modification of an order under appeal would be beyond the jurisdiction of the trial court from the very innate nature of the appellate jurisdiction and from the very practical viewpoint that there is no order to be modified until the appellate court determines what the order actually is.

Id. at 32.

This view was reaffirmed in Buckley v. Buckley, 343 So.2d 890 (Fla. 4th DCA 1977), under facts similar to those here. Francis Buckley appealed a final judgment of dissolution of marriage. Pending his appeal, he filed a motion to amend the final judgment, the purpose of which was to obtain a reduction in the amount of alimony and child support he was required to pay. The trial court declined to hear the petition because it believed that it had no jurisdiction in view of the pending appeal, and the appellate court agreed, citing Kalmutz, and holding that "modification of an order under appeal would be beyond the jurisdiction of the trial court from the very innate nature of the appellate jurisdiction and from the very practical viewpoint that there is no order to be modified until the appellate court determines what the order is."

While it is true that both Kalmutz and Buckley were decided under former Rule 3.8(b), Florida Appellate Rules, 1962 Revision, which rule was somewhat narrower in scope than the present Rule 9.600(c), the Fourth District has reached the same result under the present rule. In Weider v. Weider, 402 So.2d 66 (Fla. 4th DCA 1981), the court held that a post-judgment order by the trial court pending appeal of the judgment, awarding to the wife exclusive use and possession of the marital home "... until July 14, 1983, or a determination of the appeal of the final judgment ... whichever occurs latest in point of time" exceeded the trial court's jurisdiction, because:

Fla.R.App.P. 9.600 allows the trial court to enter and enforce orders necessary for the protection of a party pending appeal. By awarding the wife the exclusive use and possession of the marital home until July 14, 1983 in the event this appeal is decided prior to that time, the trial court has exceeded its jurisdiction. The trial court losses [sic] jurisdiction upon the filing of a notice of appeal except for those matters specifically enumerated in Rule 9.600, and this rule does not provide for such jurisdiction beyond the pendency of the appeal. (emphasis in original).

Id. at 68.

In Blum v. Blum, 382 So.2d 52 (Fla. 3d DCA 1980), the court held that the trial court had no jurisdiction to modify portions of the final judgment while the appeal was pending without the consent of the appellate court. In Bailey v. Bailey, 392 So.2d 49 (Fla. 3d DCA 1981), the same court stated the general rule applicable to trial court jurisdiction pending appeal of the final judgment thusly:

Whether the trial court lacks jurisdiction depends not simply on the fact that an appeal in the case has been taken and is pending, but rather on the nature of the action being taken by the trial court in relation to the subject matter of the pending appeal. If what the trial court does while the appeal is pending cannot affect or interfere with the subject matter of the appeal, and thus impinge upon the appellate court's power and authority to decide the issues presented to it by the appeal, then the trial court can act. The jurisdiction of the appellate court is exclusive only as to the subject matter of the appeal.

Id. at 52. Because the trial court's order involved a post-judgment allowance of attorney's fees which was not decided by the original judgment nor involved in the appeal, the court held that the trial court had jurisdiction to make the award. It nevertheless recognized the continued validity of the principles espoused in Blum, that 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 order requiring the parties to sell the marital home, the exclusive possession of which had been given to the wife by the final judgment, despite the claim that it was an order entered to protect the welfare and rights of a party pending appeal and thus within the scope of Rule 9.600(b), because of a pending mortgage foreclosure action.

Sub judice, the trial court granted not just temporary relief during the pendency of the appeal, but a permanent change in alimony and support. While it may be said that alimony and child support awards are never "permanent" because they are always subject to modification, they are permanent until modified or until the event which terminates the award occurs. Thus "permanent" periodic alimony is so characterized despite its susceptibility to modification upon a proper showing. The very subject matter of the appeal here involves not only the characterization of the alimony...