Gaffny v. Gaffny
| Decision Date | 19 July 1937 |
| Citation | 176 So. 68,129 Fla. 172 |
| Court | Florida Supreme Court |
| Parties | GAFFNY v. GAFFNY. |
Rehearing Denied Sept. 15, 1937.
Suit by Blanche E. Gaffny against John F. Gaffny. From an adverse decree and an adverse order, defendant appeals.
Appeal from decree declared nugatory, order affirmed, and case remanded, with directions. Appeal from Circuit Court, Dade County; H. F. Atkinson, Judge.
Gordon R. Broome, of Miami, for appellant.
J. Aron Abbott, of Miami, for appellee.
This appeal involves the question as to whether or not a court of equity may adjudicate the amount of alimony in arrears, which alimony was ordered to be paid in installments under a previous final decree of divorce, and enter judgment for the amount of such arrearages and order execution to issue thereon.
There are other questions presented and argued, but we deem the above to be the only question in the case which need detain us.
On January 18, 1935, appellee, Blanche E. Gaffny, obtained a final decree of divorce against the appellant, John F Gaffny, in the circuit court for Dade county. In that decree it was adjudged and decreed that the defendant therein 'do hence-forth, until further order of this court, pay to the plaintiff, Blanche E. Gaffny, the sum of $15.00 per week, each week, as alimony.' It was also ordered that the plaintiff's maiden name of Blanche E. Marshall be restored to her. No appeal was taken from that decree within the six months' period allowed by law.
On August 5, 1935, appellee, who was the plaintiff in the divorce action, filed a petition in said court for a rule to the defendant to show cause why he should not be punished for contempt for failure to pay alimony to the plaintiff in accordance with said decree, and an order nisi was issued in accordance with the petition, but no final action was taken thereon.
On October 12, 1935, another petition for an order to be issued to the defendant to show cause why he should not be adjudged in contempt of the court for failure to obey the alimony provision of said final decree was filed, and an order to show cause issued thereon. The defendant filed an answer to the rule to show cause, and also a petition to reduce the amount of alimony provided in said decree, or to cancel the same entirely. Testimony was taken before the circuit judge on both petitions. The testimony of the plaintiff tended to show that the defendant was able to pay the $15 per week as decreed, whereas the testimony of the defendant, who meanwhile had remarried, tended to show that he was not able to pay any alimony at all, or, if any, a very small amount. On December, 12, 1935, the circuit judge made an order, which was duly entered, in which it was recited that the court had heard the testimony of the parties and their respective witnesses, and argument of counsel, which order adjudicated that the aggregate amount of alimony in arrears, due under said final decree of January 18, 1935, amounted at the time of said order to the sum of $238; that the award of alimony theretofore made by the court appeared to be just and equitable in consideration of all the curcumstances of the parties, the necessities of the plaintiff, and the ability of the defendant, wherefore it was ordered, adjudged, and decreed that the defendant's petition to reduce or cancel alimony be denied, and that judgment 'be and it is hereby entered in favor of the plaintiff, Blanche E. Gaffny, and against the defendant, John F. Gaffny, for the sum of $238.00, and that the said Blanche E. Gaffny to have and recover of and from the defendant, John F. Gaffny, the sum of $238.00, for which let execution issue.'
On December 13, 1935, the defendant in said cause filed notice of entry of appeal from said order of December 12, 1935, and also from that part of the final decree entered on January 18, 1935, as to the payment of permanent alimony by the defendant, which appeal was made returnable March 10, 1936.
In so far as the said entry of appeal attempted to take an appeal from any part of the final decree rendered about eleven months before the attempt to appeal therefrom was made, the entry of appeal is futile and nugatory. We cannot concur in appellant's earnest argument that the six months' limitation does not apply to the alimony provision of the decree. We will therefore only consider the appeal in so far as it relates to said later order of December 12, 1935. While under the statute the appellant had no right to appeal from said final decree unless he did so within the six months' period allowed by the statute (Comp.Gen.Laws 1927, § 4960) the court had the power, both under its decree retaining jurisdiction with reference to the matter of alimony, and under chapter 16780 of the Acts of 1935, to modify the provision with reference to the payment of alimony if the circumstances of the parties or the financial ability of the husband should have so changed since the rendition of such decree as to justify such modification, after giving both parties an opportunity to be heard and to introduce evidence relevant to the issue.
It might be observed that the order of December 12, 1935, did not change the award of alimony which had been made by the court in the final decree rendered January 18, 1935. Thus, that decree was left unchanged and undisturbed. The order merely denied the defendant's petition to reduce or cancel alimony, adjudicated the amount of alimony in arrears, and entered judgment therefor, with order for execution to issue.
If, as contended by appellant, said alimony decree of January 18 1935, was procured by fraud and without notice to appellant,...
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