Kranis v. Kranis, 74--1239
| Decision Date | 20 May 1975 |
| Docket Number | No. 74--1239,74--1239 |
| Citation | 313 So.2d 135 |
| Parties | Rosalind KRANIS, Appellant, v. Robert KRANIS, Appellee. |
| Court | Florida District Court of Appeals |
Breger & Schreiber, North Miami Beach, for appellant.
Melvin A. Rubin, Miami, for appellee.
Before HENDRY and NATHAN, JJ., and CHARLES CARROLL (Ret.), Associate Judge.
The appellant, Rosalind Kranis, who was the respondent in an action for dissolution of marriage, appeals from an order by which the provisions of the judgment as to visitation and child support were modified, on hearing on her motion, that was denied, to vacate a prior contempt order. We find error and reverse.
The marriage of the parties was dissolved by a judgment entered in the circuit court of Dade County on August 14, 1973. Therein Rosalind was awarded custody of the children of the marriage, daughters aged eight and ten years. The husband, Robert Kranis, was ordered to pay child support of $50.00 per week for each child. He was granted the right of reasonable visitation, viz: 'all reasonable rights of visitation with said minor children'. Rosalind's claim for alimony was denied.
After the judgment Robert remarried. Rosalind moved to the town of Rye, New York, where she and the children have continued to reside with Rosalind's parents, by whom Rosalind is being supported. Rosalind's removal with the children to the state of New York was authorized, not alone from necessity for economic reasons, but with approval of the court. No provision of the judgment restrained her move, and (as appears from the record in a subsequent proceeding in the case) a motion by Robert to require Rosalind to remain in Florida was denied.
In the spring of 1974 when Robert visited with the children in the state of New York, and in later correspondence between attorneys for the parties, Robert sought to have Rosalind permit him to take the children to Florida to visit in his home there for a period of weeks in the ensuing August. Rosalind would not agree thereto. The children who knew and had developed an intense dislike for Robert's wife, were opposed to visiting him in the presence of his wife.
Robert moved the court to hold Rosalind in contempt, on the ground that her refusal to accede to his request for such visitation of the children with him in Florida was a violation of the visitation provision of the judgment. A notice of hearing thereon was mailed by Robert's attorney to a New York attorney whom Rosalind had engaged after moving to New York. The sufficiency of that notice as served on Rosalind for the contempt hearing, by notice to the attorney who was not of record in the case, was not challenged (Cf. Ginsberg v. Ginsberg, Fla.App.1969, 122 So.2d 30 and 123 So.2d 57). Rosalind filed an affidavit in opposition to Robert's motion, but was not present at the hearing. The court entered an order on May 28, 1974 holding Rosalind 'in contempt in absentia'.
Rosalind did not appeal from that order, but on July 18, 1974, she filed a motion to vacate the contempt order. At the hearing set and held on Rosalind's motion the court entered an order from which she has prosecuted this appeal. Therein the court denied her motion to vacate the prior contempt order, and modified the final judgment in two respects, in favor of Robert. The provision of the judgment relating to visitation was nodified by a provision that the granted rights of Robert for reasonable visitation should include the right of Robert to bring the children to Florida to visit with him for a period of three weeks (at his cost and with him accompanying them). The order also modified the child support provision of the judgment, by holding the payments ordered by the judgment to be paid by Robert for support of the children would be suspended upon refusal of Rosalind to permit such (extended and distant) visitation of the children with Robert in Florida, within five days. As a result the children have been without support from their father for the period involved since said order. The order also contained a provision that the wife could purge herself of the 'continuing' contempt by acceding to said (modified) provision for visitation.
The modifications of the judgment in the two respects outlined above, done on hearing Rosalind's motion to vacate the contempt order, were without any appropriate pleadings therefor and advance notice of hearing on such modification matters. Modification of the judgment in that manner was error, on the authority of Cortina v. Cortina, Fla.1957, 98 So.2d 334, in which it was held that it is error to modify a final judgment (after rehearing period has elapsed) unless upon appropriate pleadings therefor with notice of hearing thereon sufficient to afford opportunity to plead and defend against the same. 1
In Cortina the Supreme Court said:
'There can be no doubt that a Chancellor cannot modify a support decree, or any other decree, unless the issue of modification is presented to him in appropriate proceedings and each party is given an opportunity to be heard on such issue. After the expiration of the ten-day period within which to file a petition for rehearing, 31 F.S.A. Rule 3.16, Fla. Rules of Civ.Proc., a divorce decree providing support for children is just as final as any other decree, as to all conditions and circumstances that existed as of the date of the decree. Sec. 65.15, Fla.Stat.1955, F.S.A. And as stated in Pace v. Pace, 1930, 99 Fla. 859, 128 So. 488, 489, 'After the lapse of time as thus provided by rule * * *, final decrees cannot be changed, added to, nor taken from, except as to the correction, nunc pro tunc, of mere clerical errors or misprisions, without resorting to the recognized processes of equity, based upon appropriate grounds.''
In dealing with such a problem, in Scheer v. Scheer, Fla.App.1961, 132 So.2d 456, at 458, this court said:
'In Cortina v. Cortina, supra, subsequent to a divorce decree the husband brought the wife into court on a contempt rule for allegedly refusing his allowed visitation. The court went beyond the issue made on the petition and rule to show cause and amended the decree to relieve the husband of the duty to pay support. That order resulted when, during the course of the hearing on the rule to show cause, the court reached the conclusion that the...
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