Ciociola v. Ciociola, 74-63

• Decision Date: 08 October 1974
• Docket Number: No. 74-63,74-63
• Citation: 302 So.2d 462
• Parties: Catherine M. CIOCIOLA, Appellant, v. Sol J. CIOCIOLA, Appellee.
• Court: Florida District Court of Appeals

Page 462

302 So.2d 462

Catherine M. CIOCIOLA, Appellant, v. Sol J. CIOCIOLA, Appellee.

No. 74-63.

District Court of Appeal of Florida, Third District.

Oct. 8, 1974.

Rehearing Denied Nov. 18, 1974.

Sandler & Sandler and Arthur S. Weitzner, Miami, for appellant.

Robert M. Brake, Coral Gables, for appellee.

Before BARKDULL, C. J., and PEARSON and HAVERFIELD, JJ.

PEARSON, Judge.

The appellant is the divorced wife of the appellee. She brought a complaint in the Circuit Court of the Eleventh Judicial Circuit in which she alleged that she is a resident of Pennsylvania, that the parties were divorced in 1973, that she has custody of the three children of the parties, that she is without funds to pay for their support and the appellee is able to support his children. The judgment of divorce was not attached to the complaint as an exhibit. The appellee filed a motion to dismiss upon the ground 'that this matter is solely within the jurisdiction of the court in Pennsylvania which entered the decree between the parties.' The trial judge dismissed the complaint and this appeal followed. We reverse upon a holding that the complaint was sufficient to withstand the attack made by the motion to dismiss. See rule 1.100(d), RCP.

The only relevant portions of the record are the complaint, motion to dismiss and the order dismissing the complaint. The order dismissing the complaint did not give the plaintiff the right to amend. We therefore bypass any contention that it was the duty of the plaintiff to attach a copy of the judgment of divorce in order for the court to determine whether this is an action pursuant to § 61.14, Fla.Stat., or an action to enforce the common law liability of a father to support his children. In this connection it should be noted that the defendant has not answered the complaint nor has he set up any defensive matter growing out of the judgment of divorce.

Appellant seeks support here, both for herself and for the three children of her marriage to the appellee. Appellee is subject to the jurisdiction of the Florida courts in such a suit as this one. See Cassas v. Cassas, 73 Wyo. 147, 276 P.2d 456, 69 A.L.R.2d 187 (1954); and see Dimon v. Dimon, 40 Cal.2d 516, 254 P.2d 528 (1953) and Hudson v. Hudson, 52 Cal.2d 735, 344 P.2d 295 (1959) which overrules Dimon on grounds other than jurisdiction.

We think that it has been determined in Florida that a father has an enforceable obligation to support his children irrespective of a judgment of divorce. In Isaacs v. Deutsch, Fla.1955, 80 So.2d 657, the Supreme Court held:

'There can be no doubt that the obligation of the father to support his minor children is a 'continuing' one, as contended by plaintiff. It exists irrespective of a divorce decree awarding their custody to the mother. Bezanilla v. Bezanilla, Fla., 1953, 65 So.2d 754. It may be enforced by the courts in a manner inconsistent with a contractual obligation such as that assumed by the father in the instant case. Nelson on Divorce and Annulment, 2d Ed., Sec. 15.58, p. 264. It may form the basis of a quasi-contract, implied by law, to compel the father to pay for...