Kittel v. Kittel, s. 64-91

• Decision Date: 05 May 1964
• Docket Number: Nos. 64-91,64-92,s. 64-91
• Citation: 164 So.2d 833
• Parties: A. C. KITTEL, Jr., Appellant, v. Anne B. KITTEL, Appellee. Anne B. KITTEL, Appellant, v. A. C. KITTEL, Jr., Appellee.
• Court: Florida District Court of Appeals

Page 833

164 So.2d 833

A. C. KITTEL, Jr., Appellant, v. Anne B. KITTEL, Appellee.

Anne B. KITTEL, Appellant, v. A. C. KITTEL, Jr., Appellee.

Nos. 64-91, 64-92.

District Court of Appeal of Florida, Third District.

May 5, 1964.

Rehearing Denied June 24, 1964.

Bolles, Prunty, Matrin & Goodwin, Miami, for A. C. Kittel, Jr.

William W. Charles and George J. Baya, Miami, for Anne B. Kittel.

Before BARKDULL, C. J., and CARROLL and HENDRY, JJ.

BARKDULL, Chief Judge.

This domestic litigation has previously been before this court. See: Kittel v. Kittel, Fla.App.1963, 148 So.2d 574, wherein we affirmed a final decree of separate maintenance. Subsequently, the husband journeyed to Mexico, where he instituted proceedings to obtain a Mexican divorce, while the wife remained in this jurisdiction. Before the entry of the Mexican decree of divorce, the wife instituted an action in the Circuit Court seeking to enjoin the husband from proceeding in Mexico. An injunction was issued, which was subsequently dissolved and the husband proceeded with his Mexican divorce and obtained a decree. Thereafter, the complaint [seeking injunctive relief] was dismissed with leave to amend and the wife filed her amended complaint in the nature of a declaratory decree, the substance of which contended the Mexican decree of divorce was void. In said amended complaint, she sought attorney's fees for her counsel in representing her in the attack on the Mexican divorce decree. To this amended complaint, the husband filed a motion to dismiss alleging (a) that same failed to state a cause of action against him, and (b) that same failed to contain sufficient allegations. ¹ The husband also filed a motion to strike that portion of the amended complaint seeking attorney's fees. Upon hearing, the chancellor denied the motion to dismiss and granted the motion to strike. Thereafter, both parties prosecuted these appeals; the husband seeking a reversal of the order denying his motion to dismiss, and the wife seeking a reversal of the order striking those portions of her amended complaint seeking attorney's fees.

It is apparent, under the decisions of the Supreme Court of Florida and other appellate courts of this State, that a declaratory decree may not be used to attack the validity of a judgment or decree. See DeMarigny v. DeMarigny, Fla.1949, 43 So.2d 442; Stahl v. Wilson, Fla.App.1960, 121 So.2d 662; City of Miami v. Eldredge, Fla.App.1961, 126 So.2d 169. However, the allegations of the amended complaint in this cause were sufficient to support a direct attack on the Mexican decree, when said amended complaint alleged that same was void. In this connection, see: Skipper v. Schumacher, 124 Fla. 384, 169 So. 58; Bemis v. Loftin, 127 Fla. 515, 173 So. 683; Reger v. Reger, 316 Mo. 1310, 293 S.W. 414; Ray v. Ray, 330 Mo. 530, 50 S.W.2d 142; 19 Fla.Jur., Judgments and Decrees, §§ 403, 404, 405; 30A Am.Jur., Judgments, § 855. Therefore, even though a declaratory decree action under Chapter 87 would be unavailable to the wife, she pled sufficient allegations to sustain a direct attack on the...