Oyer v. Boyer, 78-1702
| Decision Date | 07 May 1980 |
| Docket Number | No. 78-1702,78-1702 |
| Parties | Harvey E. OYER, Jr., Appellant, v. Linda E. BOYER f/k/a Linda E. Oyer, Appellee. |
| Court | Florida District Court of Appeals |
Larry Klein, West Palm Beach, for appellant.
Marjorie D. Gadarian of Jones, Paine & Foster, P.A., West Palm Beach, for appellee.
This appeal evolves out of a trial court award of attorney's fees moved for 28 days after a final order which modified child support and made custody changes as to three minor children. The only language in the modification order which could be construed to allow for retention of jurisdiction for such an award was:
"The Court retains jurisdiction hereof for the purpose of regulating and protecting the welfare of the said minor children and of hearing any proper modification agreed to by the parties herein."
We find the foregoing language insufficient and reverse.
When the wife first filed her petition to modify the child support, (after which the husband counter-petitioned for a custody change) she properly included a prayer for attorney's fees. However, other than first above quoted, the final order contained no language retaining jurisdiction to award any such fees.
While the wife maintains the above quoted language is sufficient, she contends entitlement to such fees in any event because opposing counsel stipulated to a retention of jurisdiction to award them during the hearing on the modification. The husband denies any such stipulation.
We have read, and re-read, the applicable colloquy in the transcript relative to the stipulation and incline to the view that though the husband may be technically correct, the obvious intent and import of the colloquy is to the contrary. Accordingly, were this dialogue about alleged stipulation determinative, we would be required to analyze it in this opinion; however, we are confident that, stipulation or no, it is the final modification order which controls.
Attorneys simply cannot stipulate to prolong jurisdiction. Diggett v. Conkling, 368 So.2d 74 (Fla. 4th DCA 1979); International Studio Apartment Association, Inc. v. Sun Holiday Resorts, Inc., 375 So.2d 335 (Fla. 4th DCA 1979). We have bemoaned this fact before, most recently in the above two cited cases. We agree it is grossly inequitable for an attorney to be able to renege on his solemn agreement in the record. 1 Nevertheless the question of jurisdiction is absolute and the cases so holding are too numerous to require citation. In the case now before us, no petition for rehearing was filed within the time allowed under the rules. This being so, the trial court was powerless to make the award. One case almost on all fours with the case at bar (except that the stipulation on fees was not there disputed) is Frumkes v. Frumkes, 328 So.2d 34 (Fla. 3d DCA 1976). In Frumkes the Third District held the trial court without ". . . power, unless provided by statute or rule, to amend, modify or alter the provisions of a final judgment." We agree.
As to the retention language employed in the modification...
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