Lopez v. Avery

• Decision Date: 28 July 1953
• Citation: 66 So.2d 689
• Parties: LOPEZ v. AVERY.
• Court: Florida Supreme Court

Page 689

66 So.2d 689

LOPEZ v. AVERY.

Supreme Court of Florida, Special Division B.

July 28, 1953.

A. M. Crabtree, Jr., Jacksonville, for appellant.

John F. Muckerman, Miami Beach, for appellee.

SEBRING, Justice.

Dorothy Avery Lopez, the plaintiff below, has appealed from an order granting a motion to dismiss her amended complaint. The facts necessary to a decision are simple: The plaintiff and the defendant were married in Dade County, Florida, in 1943. The following year a boy child was born to the marriage. In October of 1945 the parties separated and in December, 1945, the husband instituted suit for divorce in the State of Missouri. The wife, who was then, and still is, a resident of Florida, personally defended the suit and during the course of the litigation entered into an agreement with the husband for a property settlement, child support and custody. Under the terms of the agreement, which was executed by the wife at Miami, Florida, the wife was given complete care and custody of the minor son and the husband agreed to pay to the wife sum of $100 monthly solely as support money for the child. In March 1946, the Missouri court having jurisdiction of the parties and the cause approved the support agreement by a final decree of divorce entered in favor of the husband, and since the entry of the decree he has complied with its terms in every particular.

In April 1952, the plaintiff filed a complaint in the Circuit Court of Duval County, Florida, the county in which she was then residing with the minor son, for the entry of an order modifying the terms and conditions of the settlement agreement, and the final decree of the Missouri court confirming the same, so far as they pertained to support money for the child. In the petition the wife alleged the facts heretofore stated, and alleged further, that due to the increase in the cost of living, the increase in the age of the minor son, and the fact that the father's annual income had increased appreciably since the execution of the agreement, the sum of $100 a month for the support of the child was grossly inadequate.

The defendant husband, who was then temporarily in Florida on vacation, was personally served with process in the proceeding. Subsequently, he filed a motion to dismiss the complaint upon the grounds that the Florida court was without jurisdiction over the subject matter and the defendant, and that the petition failed to state a claim upon which relief could be granted.

The trial court granted the motion to dismiss the complaint with leave to amend. Thereafter, the plaintiff filed her amended complaint in the cause alleging therein all the facts stated in the original complaint and averring, further, that the minor child of the parties had resided with the plaintiff in Florida since October 1945, with the exception of 3 months of each year which were spent in Missouri visiting the father, and that the final decree theretofore entered in Missouri had not been appealed from or modified.

The prayer of the amended complaint was that the Circuit Court of Duval County establish the Missouri final decree as a Florida decree, and, after its establishment, that the Circuit Court of Duval County modify the terms and conditions thereof relating to the support of the minor child by increasing the amount to be paid by the defendant to the plaintiff for the care and support of the child of the parties.

The defendant moved to dismiss the amended complaint upon the same grounds as were asserted in his motion to dismiss the original petition, and upon the additional ground that the amended complaint constituted such a departure in pleading as to amount, in effect, to the institution of a new and different suit as to which the Florida court lacked jurisdiction over the person of the defendant. The trial court granted the motion to dismiss the amended complaint and this appeal followed.

As to the contention that the amended complaint constituted a departure in pleading, the law is that a departure in pleading occurs when a party quits or departs from the case or defense which he has first made and resorts to another which gives rise to a wholly distinct and different legal obligation against his adversary. Crim v. Drake, 86 Fla. 470, 98 So. 349; Livingston v. Malever, 103 Fla. 200, 137 So. 113; Eagle Fire Co. v. Lewallen, 56 Fla. 246, 47 So. 947; Gerstel v. William Curry's Sons Co., 155 Fla. 471, 20 So.2d 802, 804. In determining whether there has been such a substantial departure in after pleading as to authorize the court to dismiss an amended pleading on such ground, 'the test is whether the matter introduced by way of amendment requires a different character of evidence for its support than would be required for proof of the antecedent pleading and whether proof of additional facts will be required to sustain the later pleading.' Gerstel v. William Curry's Sons Co., supra.

As will be observed from a comparison of the complaints in the cause, the purpose of the original complaint was to procure an increase in the monthly support payments for the minor child on the ground of change of circumstances, and to that end, that the amount theretofore provided in the divorce decree rendered in Missouri be revised upward. The amended complaint sought the same basic relief upon essentially the same set of facts, the only material addition being a prayer that the Missouri decree be established in Florida as a local decree and that thereafter the terms and conditions thereof be modified so far as they pertained to support money.

The law is plain that where an amended pleading asserts rights or claims arising out of the same transaction, act, agreement or obligation on which the original pleading is founded, and the parties in interest and the essential elements of the controversy remain the same, the amendment will not be regarded as a new cause of action, and the amended pleading should not be dismissed on the ground that it constitutes a departure. Gibbs v. McCoy, 70 Fla. 245, 70 So. 86; Merchants & Bankers Guaranty Co. v. Downs, 128 Fla. 767, 175 So. 704; Atlantic Coast Line Railroad Co. v. Edenfield, Fla., 45 So.2d 204.

We hold that the pleadings in the instant case come under this rule, and that there was no departure in pleading.

The only remaining question on this appeal is whether the amended complaint which sought the establishment of the Missouri decree, and thereafter a modification of its terms and conditions in respect to support money for the minor child, wholly failed to state a claim upon which relief could be granted.

Broadly stated, the rule in respect to foreign judgments and decrees is that one state may not modify or alter the judgment or decree of a sister state, because under the provisions of Section 1, Article IV, of the United States Constitution, full faith and credit must be given to it as it stands. However, from a study of the decisions it will be seen that upon one theory or another the courts of many of the states have permitted suits to readjudicate the extent of parental liability for support of minor children domiciled within the state, even when a provision for child support has been incorporated in a prior sister state's decree. While recognizing the general rule that foreign decrees as a class are res judicata of the matters involved for all time in the future, the courts make a distinction in respect to orders or decrees for child support when by the law of the state of rendition such orders are subject to change. Decrees for child support and custody are usually regarded, in fact, as being impermanent in character, and hence, by their very nature, are res judicata of the issues only so long as the facts and circumstances of the parties remain the same as when the decree was rendered. Goodman v. Goodman, 194 A. 866, 15 N.J.Misc. 716; Setzer v. Setzer, 251...