Shannon v. Shannon, D-89

• Decision Date: 09 January 1962
• Docket Number: No. D-89,D-89
• Citation: 136 So.2d 253
• Parties: Edward M. SHANNON, Appellant, v. Winnifred B. SHANNON, Appellee.
• Court: Florida District Court of Appeals

Page 253

136 So.2d 253

Edward M. SHANNON, Appellant, v. Winnifred B. SHANNON, Appellee.

No. D-89.

District Court of Appeal of Florida, First District.

Jan. 9, 1962.

Robinson & Randle, Jacksonville, for appellant.

John S. Duss, Jacksonville, for appellee.

WIGGINTON, Judge.

Appellant has appealed from a decree in equity entered after a final decree of divorce.

The procedure followed by appellant is as prescribed by Rule 3 of the Florida Appellate Rules, 31 F.S.A., for review of final decrees and judgments. Appellee has moved to dismiss the appeal on the ground that the questioned decree is interlocutory in character, and that the only appropriate method for reviewing this type of decree is by interlocutory appeal in accordance with the procedure prescribed by Rule 4.2, Florida Appellate Rules. The question raised is one of jurisdiction.

The decree appealed culminated a proceeding brought by the former wife seeking enforcement of the provisions of the final decree with respect to the payment of alimony. In addition to her prayer for enforcement of the alimony provision of the decree, appellee alleged that certain expenditures had been made by her for the purpose of improving the home awarded to her in the final decree for her use and that of the children born of this marriage. The theory of appellee's petition is that the expenditures were necessary, and that the value of the improvements has accrued to the benefit of appellant who owns a one-half interest in the property as a tenant in common. She contends that on the theory of unjust enrichment he should be required to pay his share of the cost of making these improvements. By the order appealed the chancellor denied that part of appellee's petition praying for enforcement of the alimony provisions of the decree, but did award to her a sum equivalent to one-half of the value of the improvements which she made in the home property jointly owned by the parties.

The jurisdiction of District Courts of Appeal in this state is restricted to the types of appeals prescribed by the Constitution. Appeals from trial courts in each appellate district, and from final orders or decrees of County Judge's Courts pertaining to probate matters or to estates and interests of minors and incompetents, may be taken to the court of appeal of such district from all final judgments or decrees except those from which appeals may be taken direct to the Supreme Court or to a circuit court. ¹ The Constitution further specifies that the Supreme Court may provide by rule for review by District Courts of Appeal of interlocutory orders or decrees in matters properly reviewable by those courts. ²

From the foregoing provisions of the Constitution it is seen that with respect to review of judicial orders, judgments and decrees, the jurisdiction of District Courts of Appeal is restricted to appeals from final judgments or decrees entered in trial courts, and appeals from interlocutory orders in accordance with procedure to be prescribed by rules adopted by the Supreme Court. The Supreme Court, in accordance with the authority vested in it by the Constitution, ³ has adopted Rule 3 of the Florida Appellate Rules, which prescribes the procedure to be followed in obtaining appellate review of final decrees and judgments of various trial courts of the state. The Supreme Court has also implemented the above mentioned section of the Constitution relating to appellate review of interlocutory orders and decrees by the adoption of Rule 4.2, Florida Appellate Rules. This rule provides that appeals from interlocutory orders or decrees in equity, orders of decrees entered after final decree, and orders at common law relating to venue or jurisdiction over the person may be prosecuted in accordance with that rule. The time for perfecting an appellate review of the orders and decrees specified in this rule, and the mechanics to be followed in obtaining such review, are different in several material respects from the time and method of obtaining appellate review of final decrees and judgments as specified in Rule 3 of the Rules. It is thus seen that under Rule 4.2 relating to interlocutory appeals, appellate review may be obtained of interlocutory orders or decrees in equity as well as orders or decrees entered after final decree. The decree appealed in this case being one in equity entered after final decree, we are faced with the question of whether Rule 4.2 provides the exclusive method for reviewing this type of decree, or whether it may properly be reviewed in accordance with the procedure prescribed by Rule 3 relating to appeals from final judgments and decrees.

A decree has been defined as a judgment rendered by a court of equity ⁴. It has likewise been held that all decrees are either interlocutory or final. ⁵ A final decree has been defined as a judgment of a court of equity which concludes the litigation on the merits of the cause and leaves no question open for future determination. ⁶ An interlocutory decree is one which is only intermediate in character and does not finally determine or complete the suit but which leaves some question in the case open for future determination. ⁷

Orders or decrees entered after final decree as particularized in Rule 4.2 relating to interlocutory appeals have no special characteristics except that they are rendered in the cause upon some proper proceeding initiated subsequent to the final decree entered therein. Such orders or decrees may be either interlocutory or final in nature. As said by Judge Kanner in the Thomas case, 'Not all orders entered subsequent to final decree are interlocutory, but in a proper case an order entered after final decree may of itself constitute a distinct adjudication so final in nature as to partake of the character of a final decree and...