Davis v. Davis

• Decision Date: 04 October 1960
• Docket Number: No. C-42,C-42
• Citation: 123 So.2d 377
• Parties: Frank A. DAVIS, Jr., a single man; Harry R. Davis and Mary C. Davis, husband and wife; Mary D. Wesley, Individually and as Administratrix of the Estate of Irene K. Davis, deceased, and Helen D. Caughman, Appellants, v. Frank A. DAVIS, Sr., Appellee.
• Court: Florida District Court of Appeals

Page 377

123 So.2d 377

Frank A. DAVIS, Jr., a single man; Harry R. Davis and Mary C. Davis, husband and wife; Mary D. Wesley, Individually and as Administratrix of the Estate of Irene K. Davis, deceased, and Helen D. Caughman, Appellants, v. Frank A. DAVIS, Sr., Appellee.

No. C-42.

District Court of Appeal of Florida, First District.

Oct. 4, 1960.

Merritt, Jackson, Anderson & Henderson, Pensacola, for appellants.

Yonge, Beggs & Lane, Pensacola, for appellee.

WIGGINTON, Chief Judge.

Defendants have appealed from a final decree on the pleadings entered in a suit for partition. Appellants question the propriety of the decree appealed.

Appellee filed his complaint in equity seeking partition of a parcel of land located in the City of Pensacola. Named as defendants in the cause are plaintiff's children, one of whom is joined both in her individual capacity and as administratrix of the estate of her deceased mother from whom plaintiff was divorced in 1947. The complaint alleges that plaintiff and his deceased former wife owned the property in question as tenants by the entireties prior to the entry of the decree of divorce. It is alleged that by the divorce decree the chancellor awarded the wife the exclusive use and occupancy of the property as her home during the remainder of her life or until remarriage, and ordered that it should not be subject to partition or other disposition by either party without their joint consent during the continuance of the tenancy. The complaint further alleges that by the language employed in the decree the wife's estate by the entirety was converted into a life estate, and upon her death the whole fee simple title vested in the plaintiff. The complaint prays in the alternative that if it should be held that the wife's interest at the time of her death was a tenancy in common with plaintiff, that plaintiff's interest in the property be sold and plaintiff's proper share of the proceeds disbursed to him.

All defendants appeared in the cause and filed an answer which admits the material allegations of the complaint, but denies that their deceased mother held only a life estate in the property, contending that at the time of death she was vested with an undivided one-half interest as a tenant in common, which interest has descended to the defendants as her sole heirs. Without designating it as such, the answer also contains what the chancellor and the parties properly treated as a permissive counterclaim. The counterclaim alleges that by the final decree of divorce plaintiff husband was required to pay as alimony to defendants' deceased mother the sum of $150 a month. It is alleged that from the date of the divorce in 1947 to the date of the mother's death in 1959 the plaintiff father had paid only a part of the alimony which the court had ordered him to pay, and at the time of the mother's death there was owing to her by the plaintiff father as arrearage the sum of approximately $25,000. Defendants pray that the court enter a decree in their favor for the entire amount of the delinquent alimony payments due the mother's estate, and that the plaintiff's one-half interest in the property sought to be partitioned be impressed with a lien for the amount found to be due defendants as alleged. Attached to the counterclaim as exhibits are a copy of the final decree of divorce and a schedule purporting to show the amounts of alimony paid by plaintiff to defendants' mother during her lifetime.

The above mentioned payment schedule reflects that after the first two months following entry of the divorce decree plaintiff paid to his former wife as alimony sums ranging from nothing in various months to no more than $50 in other months. This schedule indicates that payments ceased on February 6, 1956, and no payments were made thereafter. Neither the complaint nor the answer and counterclaim filed by defendants were verified, and the file contains no evidence in support of any of the allegations set forth in the pleadings other tahn the exhibits referred to above.

The file affirmatively shows that plaintiff filed no answer to the counterclaim. The cause came on for hearing before the chancellor on plaintiff's motion for a decree on the pleadings pursuant to the applicable rules of procedure. Upon consideration of the motion the chancellor entered a final decree on the pleadings in which it is held that plaintiff was entitled to a decree of partition as prayed for in his complaint, but only as a tenant in common with defendants. Plaintiff and defendants jointly are each decreed to be owners of an undivided one-half interest in the property. The decree further found and concluded that it was evident from the pleadings that the deceased former wife of plaintiff acquiesced in the reduction of alimony payments paid by plaintiff, and defendants were not entitled to a decree or judgment against plaintiff for arrearage which the deceased former wife waived by her acquiescence.

The rule of procedure pursuant to which the final decree appealed in this case was entered provides that after pleadings are closed, but within such time as not to delay the trial, any party may move for judgment or decree on the pleadings. ¹ The correctness of the chancellor's action in entering the final decree pursuant to this rule is the principal point questioned on this appeal. It is evident from a literal reading of the rule that it is not available to either party until after the pleadings are closed. Pleadings in a civil action are not closed until after the complaint and counterclaim, if any, have been answered by the opposing party. As stated above, plaintiff failed to answer the counterclaim, but instead moved for final decree on the pleadings which was granted.

The Florida rule relating to the procedural point now under consideration was taken from and is a counterpart of Rule 12(c), Federal Rules of Civil Procedure, 28 U.S.C.A. The decisions of federal courts construing the rule are therefore pertinent to our consideration here. Moore, in his work on Federal Practice, says that if a counterclaim is pleaded, or if the court orders a reply, the pleadings are not closed until the reply is served. ² The foregoing principle is based upon a decision rendered by a federal district court in which it was held that a motion for judgment on the pleadings may not be made, even as to the complaint and answer alone, where the defendant has pleaded a counterclaim and a reply has not been served. ³ It likewise has been held that if a defendant has failed to file an answer, a motion for a judgment on the pleadings is not the correct procedural remedy, but rather application should be made for default judgment. ⁴

In commenting upon the procedural posture which a civil action must occupy before a motion for judgment or decree on the pleadings is proper, our Supreme Court has held that 'upon a hearing on defendant's motion for judgment on the pleadings after the defendant has answered, matters outside the pleadings may not be presented under Rule 1.11(c) * * *.' ⁵

The criteria which guides the consideration of the chancellor in passing upon a motion for final decree upon the pleadings points up the necessity for the pleadings to be fully closed before the motion may be considered. 'At such a hearing all the proper allegations of the bill not sufficiently denied by the answer are to be taken as true and all allegations in the answer of new or affirmative matter are to be deemed denied. Moreover, where issues are made by denials in the answer, the decision at the hearing must be against ...