Claus v. Claus
| Decision Date | 14 April 1964 |
| Docket Number | No. F-78,F-78 |
| Citation | 163 So.2d 26 |
| Parties | Ruth Crossman CLAUS, Appellant, v. Edwin F. CLAUS, Appellee. |
| Court | Florida District Court of Appeals |
Maurice Wagner, Holly Hill, and Richard D. Bertone, Daytona Beach, for appellant.
Walter A. Shelley, Daytona Beach, for appellee.
Appellee seeks dismissal of this appeal on the ground that appellant has accepted all benefits of the final decree of divorce entered October 18, 1963, including alimony payments over a period of several months following that date and payment of the fee allowed for the services of her attorney.
In Carter v. Carter, Fla.App., 141 So.2d 591, we dismissed the wife's appeal on the authority of McMullen v. Fort Pierce Financing & Construction Co., 108 Fla. 492, 146 So. 567. Wigginton, J., speaking for the court, pointed out that Rule 3.8(b), Florida Appellate Rules, was amended on July 7, 1961, 31 F.S.A., so as to enable an appellant wife, upon motion to and order of the trial court, to receive subsistence pending an appeal from a divorce decree without becoming estopped to question the provisions of the decree, and in that connection said:
'Implicit in the rule is the conclusion that if alimony awarded to a wife in a final decree of divorce is accepted by her as such, she is estopped to question either that or any other provision of the final decree by appeal.'
Adhering to the rule in Carter, we dismissed the appeal in Rayle v. Merrill, Fla.App., 141 So.2d 288, holding there that one who voluntarily accepts the benefits of a judgment or decree is estopped from seeking reversal thereof on appeal; that such conduct amounts to a release of errors.
Appellant's reply to the instant motion to dismiss admits that she accepted the mentioned payments and reflects that on April 1, 1964, she filed in the lower court a motion for an order fixing the amount and conditions of a supersedeas bond and on April 2, 1964, filed a motion to require the appellee, pending the appeal, to continue the payment of alimony in such amounts and under such terms and conditions as may be just and equitable. On April 2, 1964, said motions were denied.
Appellant's reply to the motion to dismiss incorporates a motion praying that this court enter an order pursuant to Florida Appellate Rule 3.8(b) and Rule 5.10 requiring the appellee, pending this appeal, to continue the payment of alimony in such amount and under such terms and conditions as may be just and equitable. It...
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Fort v. Fort, F-262
...from the said decree, so we dismissed her appeal. We have ruled similarly in Rayle v. Merrill, 141 So.2d 288 (1962), and Claus v. Claus, 163 So.2d 26 (1964). While this doctrine has apparently found its most common application in suits for divorce, the leading case in Florida recognizing th......
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McDaniel Gift Shop, Inc. v. Balfe
...to the said decrees . Examples of such cases are our recent decisions in Carter v. Carter, 141 So.2d 591 (Fla.App.1962), Claus v. Claus, 163 So.2d 26 (Fla.App.1964), and Fort v. Fort, 167 So.2d 315 (Fla.App.1964). In thus applying the doctrine in our opinion in the last-mentioned case we re......
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Hines v. Hines, G-312
...such action as set forth in Brooks v. Brooks (Fla.1958), 100 So.2d 145; Carter v. Carter (Fla.App.1962), 141 So.2d 591; Claus v. Claus (Fla.App.1964), 163 So.2d 26; Fort v. Fort (Fla.App.1964), 167 So.2d CARROLL, DONALD K., J., concurs. STURGIS, J., dissents. STURGIS, Judge (dissenting). Th......
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Brackin v. Brackin, F-218
...Rule 3.8(b). We are aware that a direct conflict on a point of law appears to exist between the decision of this court in Claus v. Claus, 163 So.2d 26 (Fla.App.1964), and the decision of the Florida District Court of Appeal, Second District, in Hartley v. Hartley, 134 So.2d 281 (Fla.App.196......