Cortina v. Cortina
| Decision Date | 20 November 1957 |
| Citation | 98 So.2d 334 |
| Parties | Katherine A. CORTINA, Petitioner, v. Fred A. CORTINA, Respondent. |
| Court | Florida Supreme Court |
Paul B. Johnson, Tampa, for petitioner.
J. W. Dupree, Tampa, for respondent.
This is an appeal from a final decree of divorce and an order modifying such final decree as to support money for the 16-year-old daughter of the parties.
Under the final decree the appellee, Mr. Cortina, was awarded a divorce from the appellant, Mrs. Cortina; custody of the daughter was awarded to the mother with reasonable visitation privileges to the father. The decree denied alimony but required Mr. Cortina to pay $10 per week for the support of the daughter.
A little more than a month after the entry of the decree Mr. Cortina filed a contempt proceeding against Mrs. Cortina, alleging that she had refused to allow him the reasonable visitation privilege awarded by the decree. A hearing in the contempt proceeding was held by the Chancellor, who also had a private interview with the daughter. Thereafter, sua sponte and without notice to the parties, the Chancellor entered an 'Order Amending Final Decree', reciting that the matter had come before him in the contempt proceedings, that he had heard testimony of the witnesses and interviewed the daughter, and that 'the reason why the visitation has been denied is the fault of the daughter, which the mother, who is the plaintiff here, apparently does not intend to correct.' The order 'revoked' that part of the final decree requiring the payment of support, and provided that 'if the mother and the child decide that the decree shall be complied with by giving to the father a reasonable visitation with his child and that matter is then reported to the Court, I will further amend the decree to provide for support money. * * *'
Mrs. Cortina has appealed from the final decree of divorce and from the 'Order Amending Final Decree'. The questions directed to alleged errors in the entry of the final decree of divorce cannot be considered since the Notice of Appeal was not filed within sixty days from the rendition of the final decree as required by Fla.App.Rule 3.2, subd. b. The appeal was, however, taken within sixty days from the rendition of the amendatory order, and will be considered and acted on as a petition for certiorari under the rule then in effect, 31 F.S.A.Rule 28, Fla.S.Ct.Rules.
As to the amendatory order, it is contended on behalf of Mrs. Cortina that (1) the Chancellor was without power to modify the divorce decree, sua sponte, since neither party raised the question in the contempt proceedings, and (2) even if properly before the court, the circumstances were not such as to warrant a modification of the decree under Sec. 65.15, Fla.Stat.1955, F.S.A. The first contention must be sustained, so it is unnecessary to answer the second.
Apparently conceding that no issue with respect to the modification of the decree was raised in the contempt proceedings, the appellee argues that Sec. 65.15, Fla.Stat.1955, F.S.A., authorizing the modification of alimony and support orders upon the application of either party, 'in no way acts as a prohibition against the Chancellor, should he for equitable reasons deem it necessary to modify the decree.' He also states that 'The Chancellor has the right to impose such equitable conditions for the enforcement of the Court's decree as in his sound discretion may be deemed proper.' He cites only Sapp v. Warner, 105 Fla. 245, 141 So. 124, 143 So. 648, ...
To continue reading
Request your trial
-
Arky, Freed, Stearns, Watson, Greer, Weaver & Harris, P.A. v. Bowmar Instrument Corp.
...indisputably true that "a judgment upon a matter entirely outside of the issues made by the pleadings cannot stand," 4 Cortina v. Cortina, 98 So.2d 334, 337 (Fla.1957), whether an appellant who succeeds in setting aside such an errant judgment is entitled to have judgment entered in its fav......
-
Succession of King
...no pleading directed to modification was filed, to summarily change the provisions of a decree which had become final. Cortina v. Cortina, Fla. 1957, 98 So.2d 334; Taylor v. Taylor, Fla.App.1962, 143 So.2d 'It is also true that the chancellor may not reduce the amount already due for alimon......
-
Cedars Medical Center, Inc. v. Ravelo
...to a finding of liability on the basis of that theory. See Hart Properties, Inc. v. Slack, 159 So.2d 236 (Fla.1963); Cortina v. Cortina, 98 So.2d 334 (Fla.1957). In this case, Ravelo's amended complaint alleged that Dr. Gomez did not obtain her informed consent. There was nothing else in th......
-
In re Wiencko, 7-01-05219.
...announced in the text above seems to agree with the general rules governing decrees in equity. For example, in Cortina v. Cortina, 98 So.2d 334 (Sup.Ct.Fla.1957), the court stated: "There can be no doubt that a Chancellor cannot modify a support decree, or any other decree, unless the issue......
-
Florida's third species of jurisdiction.
...voidable only, not void"). (14) Lovett v. Lovett, 112 So. 768 (Fla. 1927), is still good law on this point. (15) Cortina v. Cortina, 98 So. 2d 334, 337 (Fla. 1957); Aldridge v. Peak Prop. & Cas. Ins. Corp., 873 So. 2d 499, 501 (Fla. 2d D.C.A. 2004); Carroll & Assocs., P.A. v. Galind......
-
Mental-Health Issues in Florida Family Law.
...Conner, concurring). (89) Perez, 160 So. 3d at 459. (90) Heier v. Heier, 662 So. 2d 1319 (Fla. 4th DCA 1995). (91) Cortina v. Cortina, 98 So. 2d 334 (Fla. (92) Williams v. Williams, 690 So. 2d 601 (Fla. 1st DCA 1996). (93) Russell v. Russell, 240 So. 3d 890 (Fla. 1st DCA 2018); Abbott v. Ab......