Finneran v. Finneran, 2812
Decision Date | 31 January 1962 |
Docket Number | No. 2812,2812 |
Citation | 137 So.2d 844 |
Parties | Frank K. FINNERAN, Appellant, v. Carolyn E. FINNERAN, Appellee. |
Court | Florida District Court of Appeals |
John A. Hanley of Bacon & Hanley, St. Petersburg, for appellant.
Gardner Beckett, Jr., of Askew & Beckett, St. Petersburg, for appellee.
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:
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:
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...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......