Martin v. Case, 2112

• Decision Date: 13 February 1970
• Docket Number: No. 2112,2112
• Citation: 231 So.2d 279
• Parties: G. H. MARTIN, Appellant, v. Harold E. CASE et al., Appellees.
• Court: Florida District Court of Appeals

Page 279

231 So.2d 279

G. H. MARTIN, Appellant, v. Harold E. CASE et al., Appellees.

No. 2112.

District Court of Appeal of Florida, Fourth District.

Feb. 13, 1970.

G. H. Martin, in pro. per.

Elliott B. Barnett of Ruden, Barnett, McClosky & Schuster, Fort Lauderdale, for appellees.

OWEN, Judge.

This is a sequel to Mordue v. Case, Fla.App.1967, 201 So.2d 844, and seeks review of certain orders entered by the trial court after the going down of our mandate in the cited case.

In Mordue v. Case, supra, we held that certain conveyances of realty, though made without consideration, were adequate to vest title in the respective grantees as gifts. Our decision in that case, whereby we reversed the trial court on this point, closed with directions to dismiss the counterclaim which the defendant wife had made against the respective grantees under the several deeds.

When our mandate was lodged in the trial court, the judge entered an order pursuant to such mandate dismissing that portion of the defendant wife's counterclaim against the respective grantees of the several conveyance, and cancelling all proceedings to sequester such real property as security for payment of any of the plaintiff husband's obligations. The defendant wife's attorney, G. Harold Martin, Esquire, had been awarded attorney's fees and costs in the original judgment, following which the court had entered separate judgments in favor of Mr. Martin against the plaintiff Case for the amount of such attorney's fees and costs. Consequently, when the trial court entered its order pursuant to the mandate, Mr. Martin, in his own behalf as holder of unsatisfied judgments against the plaintiff Harold E. Case, filed a motion seeking to have the trial court rule on certain issues made by the pleadings which Mr. Martin termed 'unresolved' because they had not been discussed in the court's original final judgment. The motion sought, in the alternative, the right to amend the pleadings to allege that subsequent to the execution and delivery of the several conveyances (held in Mordue v. Case, supra, to be valid gifts) the plaintiff had reacquired the legal title to one or more of said parcels by virtue of an unrecorded deed. The trial court, being of the view that it could not permit such an amendment without the consent of this court, denied the motion. Mr. Martin has appealed from each of the two orders entered by the trial court rendered subsequent to the lodging our mandate.

Appellant presents two points. First, he contends that when a trial court's order is reversed because of insufficiency of evidence to support the trial court's conclusion, upon remand the case is restored to the point where the reversible error occurred and the trial court is vested with authority to continue with the case in a manner not inconsistent with the appellate court's decision. Second, he submits that upon remand under such circumstances, the trial court also has jurisdiction to hold litigants in contempt for misconduct and to assess costs and attorney's fees against them for such misconduct.

Although we will discuss each of appellant's points, we feel that it will be helpful to place the case in proper perspective as to the parties. This suit started out as one for divorce, but ultimately ended up solely as a decree granting to the wife separate maintenance, the husband's claim for divorce being dismissed. In a separate maintenance action the court does not have jurisdiction to make any division of the husband's property, Bredin v. Bredin, Fla.1956, 89 So.2d 353, 61 A.L.R.2d 942, and consequently, the question of the husband's ownership of the real property would be material only to a determination as to his ability to pay the wife alimony and attorney's fees. The plaintiff husband did not appeal from the original judgment establishing the amount of alimony and attorney's fees assessed against him, and the wife has not appealed from the court's order entered on the mandate dismissing the counterclaim. Hence, neither of the original parties to the suit are now involved. Basically Mr. Martin is seeking to collect on the two judgments he has in his favor against the plaintiff, Harold E. Case. He is in the position of any other judgment creditor who is seeking assets against which the judgments can be enforced and the question is whether he can use the vehicle of the instant case as a means of seeking to enforce the judgments, or whether he can and should utilize other avenues which are generally open to judgment creditors.

We are of the view that the trial court was entirely correct in entering its order dismissing the counterclaim against the grantees of the several deeds, as required by the court's mandate. Hunter v. Kearley, 1944,155 Fla. 222, 19 So.2d 788. Appellant correctly points out that there are numerous cases which clearly stand for the proposition that whenever a judgment is reversed and remanded with no specific directions, it is to be proceeded with in the court below as if the reversed decree or order had never been made, citing Webb Furniture Company v. Everett, 1932, 105 Fla. 292, 141 So. 115 and many others. There seems to be no disagreement with this statement of law. See Westinghouse Electric Supply Co. v. Diplomat Electric, Inc., Fla.App.1969, 221 So.2d 436. The decision of this court in Mordue...