Dent v. Dent, 2D03-699.
| Decision Date | 30 July 2003 |
| Docket Number | No. 2D03-699.,2D03-699. |
| Citation | 851 So.2d 819 |
| Parties | Anita F. DENT, Appellant, v. Robert T. DENT, Appellee. |
| Court | Florida District Court of Appeals |
Edward C. McFadden, Jr., Tampa, for Appellant.
Neil E. Polster, Tampa, for Appellee.
Anita F. Dent, the wife, appeals a nonfinal order on temporary relief in an action for dissolution of marriage against the husband, Robert T. Dent. We affirm but require the circuit court to clarify that this temporary order is without prejudice to the parties' rights to revisit the issues at the final hearing.
In November 2001, the parties entered into an agreement for temporary support. At that time, the spousal and child support was calculated based upon the husband's net monthly income of $2,962.89. The agreement required the husband to pay the wife, who is unemployed and at least partially disabled, $1,000 per month in temporary alimony and $440 per month in temporary child support for one child.
Exactly one year later, the wife requested an increase in the temporary support awards. She alleged that the husband's income and the expenses for herself and the child had increased. She indicated that she had exhausted all of the savings in her possession at the time of the parties' separation. She also asked for permission to sell an inoperable 1964 Chevrolet Malibu automobile in order to obtain a reliable form of transportation for herself and the minor child.
At the hearing on this motion, the circuit court questioned the parties' delay in setting a final hearing in the dissolution proceeding. The court was understandably frustrated at the thought of having a lengthy hearing on temporary support only to have to address the same issues in a final hearing. Therefore, the court refused to alter the monthly amount of temporary support at that time. Instead, the court entered an order requiring the parties to immediately set the matter for final hearing and prescribing certain stopgap measures to protect the parties and their assets pending the final hearing.
This order effectively provides the wife and child only $1,440 per month in temporary support plus $93 per month toward the child's automobile insurance premium, while allowing the husband to retain approximately $2,699 per month in net income. If this order were to be afforded any level of finality or if it could not be revisited at the final hearing, we might be compelled to reverse. In this case, however, the circuit court specifically anticipated that these issues could be better addressed in a final hearing. We cannot conclude that the circuit court abused its discretion in fashioning the temporary relief contained in this order in light of its specific intent to further address the issues at a final hearing that it anticipated would be held in the immediate future.
Although the transcript evinces the circuit court's intent to more fully address these issues at a final hearing, the written order entered on the wife's request does not specify that the court's stopgap measures are without prejudice to these issues being revisited during a final hearing. This court has previously observed that generally, "absent compelling circumstances," an order for temporary support is "final during its lifespan." See Kraus v. Kraus, 749 So.2d 513 (Fla. 2d DCA 1999)
(); see also Israel v. Israel, 824 So.2d 953 (Fla. 4th DCA 2002). As such, a circuit court that anticipates that its temporary support orders may need to be refined or adjusted in a final hearing should specify in the order that the provisions are without prejudice and may be modified by the court during the proceedings or in a final hearing. We therefore remand this case with instructions that the circuit court amend the order on appeal to specify that its provisions are without prejudice to the parties' claims in a final hearing and that the court reserves jurisdiction to modify the support awards.
Turning to the portion of the temporary order that granted the wife's request to sell the 1964 Chevrolet Malibu, we note that chapter 61, Florida Statutes (2002), does not authorize a court to make a partial distribution of marital assets prior to a final hearing. See, e.g., § 61.052(3), Fla. Stat. (2002); see also Kalmanson v. Kalmanson, 796 So.2d 1249 (Fla. 5th DCA 2001)
(); cf. Turnage v. Turnage, 653 So.2d 485 (Fla. 5th DCA 1995) (). However, section 61.052(3) permits the circuit court to make appropriate orders to provide for support and to preserve the property of the parties. The circuit court was thus authorized to order the sale of the vehicle. This provision of the order on appeal, however, should not be interpreted as finally resolving any issue as to the appropriate disposition of this asset. The final hearing should address whether this asset is nonmarital or marital property and how the proceeds received from the sale are to be credited in a final equitable distribution scheme.
We therefore affirm the order on appeal but remand for the circuit court to clarify that the order is without prejudice to all claims for support and distribution of assets that the parties may present in a final hearing.
I fully concur with the majority's decision in this case. I write only to question some of the broad language in Kraus, 749 So.2d 513, according a level of "finality" to temporary relief orders in domestic relations cases.
Temporary support orders are interlocutory in nature. Stock v. Stock, 693 So.2d 1080, 1086 (Fla. 2d DCA 1997); Moliver v. Moliver, 200 So.2d 613, 614 (Fla. 3d DCA 1967). It is well settled that courts retain authority over interlocutory orders and may change, modify or set aside such orders until the entry of a final judgment. Young v. Young, 65 So.2d 28 (Fla.1953); Whitaker v. Wright, 100 Fla. 282, 129 So. 889 (1930); Stock, 693 So.2d at 1086; Danner v. Danner, 206 So.2d 650 (Fla. 2d DCA 1968); Moliver, 200 So.2d 613; see also Wayno v. Wayno, 756 So.2d 1024, 1025 (Fla. 5th DCA 2000) (Cobb, J., concurring)
(); cf. Pub. Health Trust of Dade County v. Diaz, 529 So.2d 682 (Fla.1988) (). As such, no party obtains a vested interest from a temporary support order. Duss v. Duss, 92 Fla. 1081, 111 So. 382, 385 (1926). The circuit court should thus be permitted to adjust temporary support orders in domestic relations cases when the circumstances merit it.
This rule of law reflects practical policy concerns inherent in temporary support orders. A temporary support order is often required at the beginning of the dissolution action, before the parties have had an opportunity to complete discovery. Given the urgency of some of these matters, the order is often entered based upon an abbreviated hearing and limited evidence. The court often has little more than the parties' financial affidavits to guide it in calculating support. These forms can be complicated to fill out accurately, particularly for pro se parties or parties who are unable to review the affidavit with their counsel in detail prior to the temporary hearing. As the case progresses, the developing evidence or changes in the parties' financial circumstances may reveal inequities or errors in the prior support awards...
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