Cooper v. Cooper
Citation | 406 So.2d 1223 |
Decision Date | 02 December 1981 |
Docket Number | No. 81-123.,81-123. |
Parties | Willie Lee COOPER, Sr., Appellant, v. Mae France COOPER, Appellee. |
Court | Court of Appeal of Florida (US) |
Allen R. Bosworth of Legal Aid Service of Broward County, Inc., Fort Lauderdale, for appellant.
Irwin A. Berkowitz, P.A., Fort Lauderdale, for appellee.
Appellant seeks reversal of those portions of a final judgment of dissolution whereby appellee was awarded permanent alimony and a reasonable attorney's fee.
He first argues that permanent alimony should not have been awarded because appellee's Answer and Counterpetition contain neither any allegation upon which an award of alimony could be made nor a prayer therefor. The record supports appellant's contention. Appellee's counsel first made reference to a claim for alimony during his opening statement:
We will request the Court award a lump sum alimony of the home to the wife.
In response to this claim appellant's counsel, during his opening statement, objected.
At the close of the evidence appellee's counsel made no motion to amend the pleadings to conform to the evidence. Notwithstanding the foregoing, the trial court awarded the wife $100 per month as permanent alimony.
To be sure, a judgment based upon a matter entirely outside the issues made by the pleadings cannot stand. Cortina v. Cortina, 98 So.2d 334 (Fla. 1957); Chandler v. Chandler, 330 So.2d 778 (Fla. 1st DCA 1976)....
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...reverse the award without remand." Rodriguez v. Campbell, 720 So.2d 266, 268 (Fla. 4th DCA 1998)(citing as examples, Cooper v. Cooper, 406 So.2d 1223 (Fla. 4th DCA 1981); Warner v. Warner, 692 So.2d 266, 268 (Fla. 5th DCA 1997)). We conclude the instant case is one requiring such dispositio......
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Faircloth v. Bliss, 4D04-2761.
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