Warrick v. Hender, 121

• Decision Date: 03 May 1967
• Docket Number: No. 121,121
• Citation: 198 So.2d 348
• Parties: Joan Claire Hender WARRICK (formerly known as Joan Claire Hender), Appellant, v. Robert Sherman HENDER, Appellee.
• Court: Florida District Court of Appeals

Page 348

198 So.2d 348

Joan Claire Hender WARRICK (formerly known as Joan Claire Hender), Appellant, v. Robert Sherman HENDER, Appellee.

No. 121.

District Court of Appeal of Florida, Fourth District.

May 3, 1967.

William T. Moore, of Moore & Wood, Ormond Beach, for appellant.

Mack N. Cleveland, Jr., of Cleveland, Stephenson & Mize, Sanford, and Edward J. Hanlon, Jr., Winter Garden, for appellee.

WILLIS, BEN C., Associate Judge.

The appellant-mother, the plaintiff in a divorce action against the appellee-father, appeals from an adverse order of the trial court rendered subsequent to a hearing on a post-decretal show cause order involving allegedly delinquent payments of child support which had been ordered in the final decree of divorce. Undisputedly the father had not paid the specified $200 per month child support for the period March 1961--October 1964. The trial judge found that the appellee-father was delinquent for the months of September and October 1964 and ordered him to forthwith and immediately make such payments to the appellant-mother. However, he also found that the mother had 'waived all support payments due from' the father for the period of nonpayment prior to September and October 1964 and adjudged 'the necessity for the * * * (father) making the payment of such total amount is hereby waived by this Order.' The 'total amount' obviously referred to the unpaid sums accruing prior to September 1964.

The appellant contends that the sums for child support which had accrued subsequent to the final decree became vested in her and that the court is without power to retroactively modify same so as to deprive her of that vested right. The appellee contends that the power of a chancellor to make equitable dispositions in cases of this kind fully clothe the trial judge with discretionary authority to relieve the father of the obligation when the equities of the parties require it.

The proceeding before the trial court was essentially to determine the sufficiency of the father's reasons for his failure to make the payments as ordered. In addition to the adjudications in the instant order already mentioned, there is an award of an attorney's fee, mention of rights of visitation, and specification of place of payment of future installments. The only matter before this court on appeal is the portion of the order which in effect completely relieved the father of payment of the unpaid sums which would have accrued during the period prior to September 1964.

Ordinarily, the mother of minor children for whom there is provided in a divorce decree periodic payments to be made by the father for the children's support acquires a vested right in past due installments. Blanton v. Blanton, 1944, 154 Fla. 750, 18 So.2d 902; Pottinger v. Pottinger, 1938, 133 Fla. 442, 182 So. 762; Van Loon v. Van Loon, 1938, 132 Fla. 535, 182 So. 205. See also Andruss v. Andruss, 1940, 144 Fla. 641, 198 So. 213, for a similar holding with regard to alimony.

Where rights have vested or been acquired in good faith under a final decree the courts generally refuse to stay or withhold execution of the decree. Pottinger v. Pottinger, supra.

In Pottinger the Supreme Court refused to disturb the ruling of the trial court which had declined to relieve against past installments and held the trial court was without authority to modify the original decree so as to affect the past due installments 'as rights have become vested thereunder, and it is not shown by the record that there has been any radical change in the conditions of the parties'. However, in Pottinger it was observed (quoting from a special concurring opinion in Van Loon v. Van Loon, supra) 'that by virtue of the general power of a court to control its own processes the court may, for strong equitable reasons, growing out of radically changed circumstances, refuse to enforce its decree by issuance of execution or by contempt or Ne exeat proceedings against a party in default'.

The particular circumstances in the case sub judice which apparently persuaded the chancellor to decline to enforce payment of most of the past due installments arise out of the conduct and attitude of the appellant's second husband in which the appellant acquiesced. It was shown that upon appellant's remarriage in April 1961, the new husband was emphatic in insisting that the appellee be completely out of the picture, that he have no contact with the appellant or the children, and furthermore he insisted on assuming the responsibility for the support of the children and did provide adequately such support. He made it clear that contributions from the appellee would be unwelcome. This continued until August 1964 at which time the husband disappeared. It was after her husband's departure that appellant sought to enforce the support money provisions against appellee. During the regime of the second marriage and before the husband's disappearance,...