Stickney v. Stickney, JJ-402

• Decision Date: 31 January 1979
• Docket Number: No. JJ-402,JJ-402
• Parties: Enoch Morgan STICKNEY, Jr., Appellant, v. Mary Agnes Sellers STICKNEY, Appellee.
• Court: Florida District Court of Appeals

Page 187

377 So.2d 187

Enoch Morgan STICKNEY, Jr., Appellant, v. Mary Agnes Sellers STICKNEY, Appellee.

No. JJ-402.

District Court of Appeal of Florida, First District.

Jan. 31, 1979.

Rehearing Denied Dec. 7, 1979.

Jack A. Harnett, of Johnson, Harnett & Curry, Quincy, for appellant.

Michael Mck. Wilson, of Duggar & Wilson, Tallahassee, for appellee.

MILLS, Judge.

Appellant (husband) seeks reversal of an order modifying a final judgment in a dissolution of marriage case by changing the rehabilitative alimony awarded appellee (wife) in the judgment to permanent alimony.

The husband contends the trial court erred in denying his motion to dismiss the wife's petition for modification because service on him, a nonresident, by mail did not give the court jurisdiction over him where the judgment failed to reserve jurisdiction to award permanent alimony in the future. We agree and reverse.

In the original proceeding, the wife sought rehabilitative and permanent alimony. The court awarded her rehabilitative alimony. The judgment did not reserve jurisdiction to award permanent alimony in the future.

Before the period provided for rehabilitative alimony lapsed, the wife timely moved for a modification of the judgment, praying for an increase in the amount of the alimony. The husband was served with a copy of the petition and notice of hearing by mail. He timely moved for dismissal for lack of jurisdiction over his person. The court denied his motion.

Timely proceedings to increase the amount of alimony awarded by a judgment in a dissolution of marriage action are supplemental to the judgment and are merely a continuation of the original proceedings. The parties having been properly brought within the jurisdiction of the trial court at the outset, the modification proceedings may be brought on a reasonable notice which affords an opportunity to be heard. Notice may be by mail provided it is reasonable and adequate opportunity is afforded the opposing party to be heard and defend against the petition for modification. Sikes v. Sikes, 286 So.2d 210 (Fla. 1st DCA 1973).

Sikes, however, is not applicable to the facts in the case before us because the court did not reserve or retain jurisdiction to award permanent alimony in the future. See Camerano v. Camerano, 340 So.2d 1200 (Fla. 4th DCA 1976). The wife should have proceeded under Fla.R.Civ.P. 1.110(h) which requires new service of process.

In addition, under Sikes, it is our opinion that the notice was insufficient to fairly permit the husband to defend because the petition merely notified him that the wife was seeking an increase in the amount of rehabilitative alimony, whereas she was actually seeking a change from rehabilitative alimony to permanent alimony.

Other intriguing issues have been raised but having decided the trial court did not acquire jurisdiction of the husband it is unnecessary that we discuss them.

We reverse the order appealed.

BOYER, Acting C. J., concurs.

BOOTH, J., dissents.

BOOTH, Judge, dissenting.

I would affirm the judgment below.

The majority opinion conflicts with the decision in Lee v. Lee, 309 So.2d 26, 28 (Fla. 2nd DCA 1975) wherein on substantially the same facts a contrary result was reached. In the Lee case, the wife was awarded rehabilitative alimony in a judgment which did not reserve jurisdiction, as in the instant case. She subsequently applied for modification of the final decree prior to the expiration of the rehabilitative alimony period, seeking Permanent alimony. The trial court denied the petition for modification, stating that there was no reservation of jurisdiction in the original order. The District Court reversed and remanded, holding (309 So.2d at 28):

"When the vehicle of rehabilitative alimony is used, . . . through unforeseen and faultless circumstances the anticipated and hoped for rehabilitation may not in fact occur to the extent that the awarded party is reasonably able to sustain herself or himself as intended by the court initially. In such case the awarded party should have the opportunity to petition the court for a re-evaluation of the alimony matter entirely and/or for an extension or modification of the rehabilitative alimony award. Particularly is this so when, as here, no permanent alimony was additionally awarded in the beginning.

As to timeliness, we again note that here the court had not retained jurisdiction to revisit the alimony question. But we emphasize that the petition for modification was filed within the original rehabilitative period and while the awarded payments were being made. In our view, and notwithstanding that jurisdiction is not retained, so long as the provisions of a final degree relating to 'Any payments' . . . are executory in whole or in part the court has jurisdiction to entertain a petition for a modification within the scope thereof." (emphasis theirs)

Under Florida Statute § 61.14 the trial court has jurisdiction As a matter of law to modify the alimony awarded in the prior judgment. Under § 61.14, it is not necessary that the trial court have expressly retained jurisdiction in the prior order for there to be a subsequent modification of the alimony awarded. The statute itself confers jurisdiction ¹ as follows:

Fla.Stat. § 61.14, Modification of alimony judgments; agreements; etc.-

". . . (W)hen a party is required by court order to make any payments, and the circumstances or the financial ability of either party has changed . . . the court has jurisdiction to make orders as equity requires . . . ."

Here the husband, employed by the U.S. Department of State, has relocated his residence to Guatemala and his former wife, a 53-year old Florida resident, is physically disabled and unable to rehabilitate herself to gainful employment. She applied prior to termination of the period of rehabilitative alimony for either an extension of rehabilitative alimony or for an award of permanent alimony. In Cann v. Cann, 334 So.2d 325, 330 (Fla. 1st DCA 1976), an opinion by the eminent jurist, Boyer, J., this Court held:

"(A)s the period of rehabilitative alimony draws to a close, the wife may, upon a showing of diligent effort toward rehabilitation which through no fault of her own has been unsuccessful, petition the trial court for an extension of the rehabilitative alimony or an award of permanent alimony. . . ."

The limitations imposed by the majority on the power of the trial court to deal with the changed circumstances of the parties in this case are not prescribed by statute, rule or case law, and should not be adopted here.

I respectfully dissent.

ON PETITION FOR REHEARING DENIED

MILLS, Chief Judge.

Appellee (wife) petitions for a rehearing contending that we misapprehended the impact of Section 61.14, Florida Statutes, that our decision is in direct conflict with Cann v. Cann, 334 So.2d 325 (Fla. 1st DCA 1976), and that we overlooked that appellant (husband) received notice of the hearing and was represented by counsel.

We did not misapprehend Section 61.14. The pertinent parts of the Section provide that ". . . when a party is required by court order to make any (alimony) payments, and the circumstances or the financial ability of either party has changed . . . (since) the rendition of the order, either party may apply to the circuit court of the circuit in which . . . the order was rendered, for a judgment decreasing or increasing The amount of . . . Alimony, and the court has jurisdiction to make orders as equity requires, with due regard to the changed circumstances or the financial ability of the...