Peppard v. Peppard
| Decision Date | 18 April 1967 |
| Docket Number | No. 66--1090,66--1090 |
| Citation | 198 So.2d 68 |
| Parties | Patricia E. PEPPARD, Appellant, v. Matthew J. PEPPARD, Appellee. |
| Court | Florida District Court of Appeals |
L. J. Cushman, Cunningham & Weinstein, Miami, for appellant.
Ferrell & Young, Dubbin, Schiff, Berkman & Dubbin and Daniel Satin, Miami, for appellee.
Before HENDRY, C.J., and PEARSON and BARKDULL, JJ.
By this interlocutory appeal, the appellant, who was defendant and counterclaimant in the trial court, seeks review of three orders. The first is an order appointing a guardian ad litem for the plaintiff in a divorce case. The second is an order authorizing the guardian ad litem to take charge of the property of the plaintiff and to act to preserve the property. The third extended the time for the filing of an answer to appellant's counterclaim in the divorce action. The appellant is the wife who is counterclaiming for divorce in her husband's suit. The appellee, husband, has a history of mental incompetency, and had disappeared during the progress of the suit.
Appellant's attack upon the third order has been abandoned by her statement in oral argument that the issue is now moot. We affirm the order appointing the guardian ad litem and the order relative to the conservation of property for the reasons hereinafter set forth.
Appellant's attack on the order appointing the guardian ad litem is contained in points numbered one and two of the brief which are as follows: I. A Court may not appoint a guardian ad litem for a litigant who is neither an infant nor an incompetent person. II. Where an individual comes into a court presumptively competent, the circuit court is without power to make determinations in matters of competency.
The gist of appellant's first point is that the circuit court has absolutely no authority to appoint a guardian ad litem unless the person for whom the guardian ad litem is appointed is either an invalid or has been adjudged an incompetent person. See Rule 1.17(b) Florida Rules of Civil Procedure, 1965 Revision, 30 F.S.A. (Identical to Rule 1.210(b) 1967 Revision). Appellant argues that by the enactment of Chapter 744 Florida Statutes, F.S.A., the legislature provided an exclusive remedy for the appointment of guardians, including guardians ad litem, for incompetent persons and that therefore, the power of the circuit court to appoint a guardian ad litem for an incompetent person is limited to those persons who have been declared mentally incompetent in the County Judge's Court. We think that this position is untenable in view of § 744.06(3) Fla.Stat., 1 which preserves the inherent power of the circuit court. It is apparent from the facts of the case now before us that there are occasions when the rather lengthy process set forth in Chapter 744, Fla.Stat., F.S.A. cannot provide the speedy and necessary judicial action in order to carry out the jurisdiction of the circuit court. Under such circumstances the equitable powers of the circuit court included the right to appoint a guardian ad litem for the purpose of preserving the interests of absent and possibly incompetent parties. It seems to us that to hold otherwise would place the court in the impossible position of seeing the res before it dissipated without being able to act...
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G.P. v. C.P. (In re D.P.P.)
...v. Morsani, 790 So.2d 1071, 1076 (Fla.2001) ; Miami Retreat Found. v. Ervin, 62 So.2d 748, 756 (Fla.1952) ; Peppard v. Peppard, 198 So.2d 68, 69–70 (Fla. 3d DCA 1967). While estoppel does not validate an otherwise invalid decree, it prevents a party who sought and benefitted from an order f......
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G. P. v. C. P. (In re D.P.P.)
...v. Morsani, 790 So. 2d 1071, 1076 (Fla. 2001); Miami Retreat Found. v. Ervin, 62 So. 2d 748, 756 (Fla. 1952); Peppard v. Peppard, 198 So. 2d 68, 69-70 (Fla. 3d DCA 1967). While estoppel does not validate an otherwise invalid decree, it prevents a party who sought and benefitted from an orde......
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Hagins v. Redevelopment Commission of Greensboro, 67SC11
...the facts found, we think the court had the inherent and equitable power to appoint a next friend in this case. G.S. § 1--64; Peppard v. Peppard, Fla., 198 So.2d 68; Graham v. Graham, 40 Wash.2d 64, 240 P.2d 564. Indeed, under such circumstances, it was the duty of the court to make such ap......
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McPhee v. State
...one who accepts the benefit of a judgment or decree from questioning its validity or opposing the enforcement of its terms.' 6 In Peppard v. Peppard 7 the wife who was defendant in a divorce proceeding petitioned the court and received an order requiring the guardian ad litem to pay her cer......
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