Finneran v. Finneran, 2812

Decision Date31 January 1962
Docket NumberNo. 2812,2812
Citation137 So.2d 844
PartiesFrank K. FINNERAN, Appellant, v. Carolyn E. FINNERAN, Appellee.
CourtFlorida District Court of Appeals

John A. Hanley of Bacon & Hanley, St. Petersburg, for appellant.

Gardner Beckett, Jr., of Askew & Beckett, St. Petersburg, for appellee.

PER CURIAM.

Frank K. Finneran has sought, by full appeal, reversal of a post-decretal order increasing his payments for support of his minor children and denying his petition to modify the earlier support order regarding the former marital home. The respondent-appellee moved to dismiss the appeal grounding her motion on the following points:

1. That the appellant has taken a full appeal from a post-decretal order contrary to Rule 4.2(a), Florida Appellate Rules of Procedure, which requires an interlocutory appeal;

2. That the appellant prepared his record on appeal contrary to Rule 4.2(c);

3. That the appellant failed to file his main brief within 15 days after filing his notice of appeal contrary to Rule 4.2(e); and

4. That appellant has failed to designate his appeal as interlocutory, contrary to Rule 4.2(a).

The parties were divorced on October 5, 1959. The final decree ordered the appellant to pay for the support and maintenance of the minor children at the rate of $65.00 per month for each child. By subsequent order of July 20, 1961 the chancellor increased the support payments to $80.00 per child each month. From that order this appeal was taken. This order was, as stated, a post-decretal order, and as such it was reviewable by interlocutory appeal under Rule 4.2, Florida Appellate Rules, 31 F.S.A. See Pavey v. Pavey, Fla.App.1959, 112 So.2d 589; Fort v. Fort, Fla.App.1958, 104 So.2d 69.

Rule 4.2, Interlocutory Appeals, provides:

[a] 'Appeals from interlocutory orderes or decrees in equity, orders or decrees entered after final decree, and orders at common law relating to venue or jurisdiction over the person, may be prosecuted in accordance with this rule; provided that nothing contained in this rule shall preclude the review of such orders and decrees on appeal from the final decree in the cause.'

In Fort v. Fort, supra, after a final decree of divorce, defendant sought reduction of alimony. The motion was denied and defendant petitioned for certiorari. The First District Court of Appeal held that in view of Rule 4.2(a), supra, such orders are no longer reviewable by certiorari. That case went on to hold that Fla.Stat. § 59.02(3), F.S.A., being in conflict with the appellate rules, must be considered superseded. The court said:

'* * * we are not authorized to treat an improvident petition for writ of certiorari as an appeal. Therefore, notwithstanding this court's disposition to base its decision on the merits whenever possible, rather than on matters of procedure, we must hold that in the instant case a lack of jurisdiction prevents us from doing so.'

In Hoedl v. Adams Engineering Company, Inc., Fla.App.1960, 125 So.2d 308, the court was asked to review an order denying a nonsuit and reinstating a final judgment in a tort action at law. The appellant filed an appeal whereas she should have petitioner for certiorari. The court said:

'It would appear that the order sought to be reviewed is one entered subsequent to the final judgment and consequently, under the rule recently enunciated in Ramagli Realty Co. v. Craver, Fla.1960, 121 So.2d 648 would not be subject to review by direct appeal.' (Emphasis ours)

In Pavey v. Pavey, supra, the former wife moved for modification of a divorce decree to obtain in increase of alimony. Two days before the end of the 60-day period allowed for appeal she filed a petition for review by certiorari. The Third District Court of Appeal gave a brief history of the provisions for review of such orders:

'Provision for review of such interlocutory orders has been subject to change in recent years. Such orders formerly were reviewable by appeal. See § 4961, Comp.Gen.Laws 1927. The method of review of such interlocutory orders in equity suits was changed to certiorari by virtue of Rule 34 of the Rules of Practice adopted by the Supreme Court of Florida on May 1, 1939. See, also, Fla.Stat. 59.02(3), F.S.A. Review by certiorari remained the practice under that rule, and under Supreme Court Rule 14 which became effective March 15, 1955. See Johnson v. Every, Fla.1957, 93 So.2d 390; Marshall v. Bacon, Fla.1957, 97...

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6 cases
  • Washington Sec. Co. v. Tracy's Plumbing & Pumps, Inc., 4542
    • United States
    • Florida District Court of Appeals
    • 5 Agosto 1964
    ...at law or in chancery, and we have dismissed plenary appeals improperly taken from interlocutory orders. See e. g. Finneran v. Finneran, Fla.App.1962, 137 So.2d 844, cert. den. 150 So.2d 444; Rules 3.2(b) and 4.2 Florida Appellate Rules, 31 The Third District Court of Appeal has reached int......
  • Small v. Small
    • United States
    • Florida Supreme Court
    • 26 Febrero 1975
    ...V, Section 3(b)(3), Florida Constitution.2 274 So.2d 883 (Fla.1973).3 262 So.2d 675 (Fla.1972).4 221 So.2d 136 (Fla.1969).5 137 So.2d 844 (Fla.App.1962); cert. disch. 150 So.2d 444 (Fla.1963).6 170 So.2d 591 (Fla.App.1965).7 136 So.2d 253 (Fla.App.1962).8 Rule 3.2(b), Florida Appellate Rule......
  • Doby v. Griffin
    • United States
    • Florida District Court of Appeals
    • 3 Octubre 1962
    ...from an interlocutory order where the appeal was not taken in accordance with the rule governing interlocutory appeals. Finneran v. Finneran, Fla.App.1962, 137 So.2d 844. Section 59.45, Florida Statutes, F.S.A., permits this court to consider a notice of appeal as a petition for common law ......
  • Burton v. Sanders, 5722
    • United States
    • Florida District Court of Appeals
    • 20 Enero 1965
    ...decree that appellants appeal. The appellees, in their briefs submitted with their motion to dismiss, cite the case of Finneran v. Finneran, Fla.App.1962, 137 So .2d 844, as authority for dismissal. In Finneran, the Circuit Court of Pinellas County entered a post-decretal order, and the app......
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