State ex rel. Gillham v. Phillips, 7352

• Decision Date: 14 December 1966
• Docket Number: No. 7352,7352
• Citation: 193 So.2d 26
• Parties: STATE of Florida ex rel. Lon C. GILLHAM, Petitioner, v. Honorable Charles M. PHILLIPS, Jr., Judge, Sixth Judicial Circuit Court In and For Pinellas County, Florida, Respondent.
• Court: Florida District Court of Appeals

Page 26

193 So.2d 26

STATE of Florida ex rel. Lon C. GILLHAM, Petitioner, v. Honorable Charles M. PHILLIPS, Jr., Judge, Sixth Judicial Circuit Court In and For Pinellas County, Florida, Respondent.

No. 7352.

District Court of Appeal of Florida, Second District.

Dec. 14, 1966.

Lawrence E. Lyman, St. Petersburg, for petitioner.

No appearance for respondent.

PIERCE, Judge.

On September 22, 1966, petitioner Lon C. Gillham filed in this Court his Suggestion for Writ of Prohibition to restrain Honorable Charles M. Phillips, Jr., Circuit Judge for Pinellas County, from proceeding further in a contempt of court hearing theretofore instituted against petitioner in the Circuit Court, claiming that Judge Phillips was without jurisdiction over the subject matter.

On September 23, 1966, upon consideration of the suggestion, brief of petitioner, and the accompanying certified copy of the necessary papers in the Circuit Court proceeding, we issued a rule to show cause, addressed to Judge Phillips, returnable before this Court on October 10, 1966. No return or other response to the rule has been filed in this Court by or on behalf of Judge Phillips. Copies of the Rule Nisi had been duly served on September 23, 1966, upon Judge Phillips and also the Attorney General.

The correct procedure in such aspect of the case was pointed up by the Supreme Court of Florida in Cobb v. State ex rel. Pitchford, 1941, 148 Fla. 149, 3 So.2d 855, in which case it was held that '(w)here no return, answer or other pleading was interposed by defendants in a prohibition proceeding, only question presented on review was whether the suggestion for the writ of prohibition stated a prima facie case'.

So we turn to the record of the Circuit Court proceedings as filed here to determine whether or not petitioner has made out a prima facie case in the suggestion for prohibition. Inferentially, we might mention that we would not knowingly issue the original Rule Nisi, nor did we do so here, unless we were then satisfied from a showing made here that petitioner had met such burden. But, in accordance with Cobb, we re-examine the entire record in this Court, before making final disposition of the cause here.

In a divorce action theretofore pending in said Circuit Court, petitioner's then wife, Doris V. Gillham, on September 10, 1964 was awarded a divorce from petitioner and in the same Final Decree petitioner was 'directed and required' to pay off a certain judgment previously obtained by Public Loan Corporation of St. Petersburg, No. 2, against said Doris V. Gillham, in the sum of $1,265.00 in the Civil and Criminal Court of Record of Pinellas County. No alimony was awarded, and the requirement for payment of said judgment was the only ancillary provision of the decree.

Two years and three days later, on September 13, 1966, Doris filed in said divorce case a verified motion alleging that petitioner had not paid said judgment nor any part thereof (except the sum of $119.00 pursuant to a previous order of Court in said cause on March 17, 1965), and that on March 10, 1966 Doris herself had settled said judgment by payment of the sum of $600.00 in complete satisfaction. The motion prayed that 'petitioner be adjudicated guilty of contempt' of said Circuit Court 'for his willful failure and refusal to comply' with said Final Decree with respect to paying off the judgment. Order to show cause was thereupon entered upon the motion by the respondent Judge, wherein petitioner was ordered to pay and reimburse to Doris the said sum of $600.00 so allegedly paid by her, or to show cause before said Judge on September 26, 1966, why he should not be held in contempt of Court and punished accordingly for such 'willful failure'. It was in this posture of the contempt proceeding, four days before he should appear before the Judge on the order to show cause, that petitioner filed here his suggestion for the prohibition writ.

So the sole legal question before this Court is: does the Circuit Court, in a divorce proceeding, have authority to enforce payment by the husband of a claim of a third person who was no party to the divorce case and where the money payment wholly lacked any attributes of alimony or support money?

The Supreme Court in State ex rel. Cahn v. Mason, Judge, 1941, 148 Fla. 264 4 So.2d 255, seems to have settled the point in favor of petitioner. In the Cahn case, a divorce was decreed in favor of the wife, and in the same final decree the husband, in addition to being required to pay alimony, was ordered to pay to a Pensacola Bank, 'in restitution to the (wife) of sums of money dissipated from her estate during the existence of their marriage', the sum of $50.00 per month, plus accrued interest, upon two promissory notes aggregating the original principal sum of $7900.00 previously executed by the parties jointly in favor of the bank, until the note was paid off. In addition thereto the husband was ordered to keep up two insurance policies on his own life aggregating $15,000, deposited with the bank as trustee to secure payment of said sums to the bank in case of his death.

A few months after the decree was entered, the...