Mouyois v. Mouyois, 57-48
Citation | 97 So.2d 718 |
Decision Date | 17 September 1957 |
Docket Number | No. 57-48,57-48 |
Parties | Peter W. MOUYOIS, Appellant, v. Anne MOUYOIS, Appellee. |
Court | Florida District Court of Appeals |
Bruce A. Hood and James R. Roads, Hollywood, for appellant.
Webster G. Wallace, Miami, for appellee.
The appellee brought an action in chancery entitled 'Petition In The Nature Of A Bill Of Review To Have Divorce Decree Set Aside Because Of Fraud.' The defendant answered and a trial was had on the issues raised. The Chancellor found that the plaintiff had failed to establish fraud or sufficient overreaching of the husband to set aside the decree in the divorce action and denied plaintiff's petition. The Chancellor further, 'upon authority of its equity and its discretionary power', considered the petition of the plaintiff as a petition to modify the alimony support payments provided in the separation agreement of the parties and approved by the court at the time of the divorce, and 'pursuant to provisions set forth in Section 65.15 of the Florida Statutes,' modified said divorce decree by increasing the amount of the payments provided therein. The decree is reversed as to that part which modified the divorce therein. An additional question as to the propriety of the Chancellor's allowance of temporary attorney's fees and costs is considered and the Chancellor's power to make such an award is affirmed.
The Chancellor has given a very complete summary of the factual background of the cause in his final decree.
'This cause originally started in another suit filed July 30, 1953 being Chancery No. 161523, wherein the same parties were the litigants. The plaintiff wife in said cuse charged the defendant with extreme cruelty and the defendant personally appeared through counsel, and the case was referred to a Special Master, Garland M. Budd, who rendered his report and found the following:
'1. The Court has jurisdiction.
'2. That the defendant husband was guilty of extreme cruelty toward the plaintiff.
'3. That a property settlement contract dated June 30, 1953, and a supplemental contract date July 28, 1953 was entered into between the parties as a property settlement agreement. He found that the contract was clear and equitable.
Upon the basis of these facts the Chancellor found that plaintiff's petition to set aside the final decree and property settlement agreement should be denied.
The decree next provided.
'The court upon authority of its equity and its discretionary power herein considers the petition of the plaintiff as a petition to modify the alimony support payments of $100.00 per month, and pursuant to provisions set forth in Section 65.15 of the Florida Statutes, it is hereby
We agree with the Chancellor in everything except his conclusion that he had the jurisdiction to make the orders contained in this second portion of the final decree. A court of equity has wide powers but these powers are limited to the cause before him. It is obvious that a Chancellor can not, because of some inherent power, enter a decree upon disputes which are not based upon pleadings. Nor does Section 65.15, Florida Statutes 1955, F.S.A., presume to confer such general powers. Upon the contrary, the language of the Statute itself imposes the restriction:
'Whenever * * * the circumstances of the parties or the financial ability of the husband shall have been changed since the execution of such agreement, or the rendition of such decree, either party may apply to the circuit court * * * for an order and judgment decreasing or increasing the amount of such separate support, maintenance or alimony, and the court, after giving both parties an opportunity to be heard, and to introduce evidence relevant to the issue, shall make such order * * *.' (Emphasis added.)
In this case the plaintiff-appellee did not apply for an order increasing the amount of alimony. The complaint is based solely upon fraud, duress and coercion and prays only for a finding that the divorce decree is void. Such a complaint cannot be construed as an application for modification of terms of such decree.
The case was tried upon the issue presented by the pleadings. We have carefully read the record and nowhere is the issue of modification raised; therefore the defendant has not had an opportunity to be heard upon such issue. A petition for a modification of an award of alimony is a statutory proceeding and can only proceed upon an allegation of sufficient facts to warrant granting of the relief prayed. Norton v. Norton, 131 Fla. 219, 179 So. 414; Watson v. Watson, Fla.1956, 88 So.2d 133. So much of the decree as attempts to modify or change the decree in the previous divorce action must be reversed.
The appellant's assignments of error going to the allowance of temporary attorney's fees, and costs, are not well taken. These assignments are four in number, going to: (1) the court's order requiring the defendant to pay temporary attorney's fees of $500; (2) the court's order requiring the defendant to pay the sum of $300 to plaintiff, representing traveling costs from New York to Miami and Miami to New York for a court hearing held February 17, 1956; (3) the court's order requiring defendant to pay costs of his oral examination on behalf of plaintiff; and (4) the assessment of costs of the proceedings against the defendant in the final decree. The well established rule regarding the assessment of costs incident to the maintenance of a suit in equity as set forth in Akins v. Bethea, 160 Fla. 99, 33 So.2d 638, 640, 'It has long been a fundamental rule of equity jurisprudence that in a chancery cause costs should be awarded as the justice of the case may require,' is a sufficient basis for the Chancellor's ruling upon (3) and (4). No clear abuse...
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