West v. West, 73--425
| Decision Date | 23 October 1974 |
| Docket Number | No. 73--425,73--425 |
| Citation | 301 So.2d 823 |
| Parties | Ernest F. WEST, Appellant, v. Elizabeth M. WEST, Appellee. |
| Court | Florida District Court of Appeals |
Jerome Pratt, Palmetto, for appellant.
Clyde C. Goebel of Grimes, Goebel, Parry, Blue & Boylston, Bradenton, for appellee.
This action involves an attempt to enforce in this state a modified New Hampshire divorce decree relating to alimony and other matters. The trial judge accorded the decree 'full faith and credit' and ordered compliance therewith. 1 We reverse.
The original divorce action commenced in New Hampshire in 1967. At that time both appellant/husband and appellee/wife were domiciled in and were residents of New Hampshire. In personam jurisdiction was obtained over both parties and, pursuant to New Hampshire law, the court reserved jurisdiction to modify In futuro the resultant decree as it related to alimony and other continuing obligations of the husband.
Subsequently, the husband moved to Florida and in 1971 was served by the Manatee County Sheriff's Department with a copy of the wife's petition filed in New Hampshire asking the original court to modify the final decree in certain respects. He failed to appear in response thereto and a default was entered resulting in the modified decree sought to be enforced here.
At the outset, we summarily dispose of appellant's contention that the New Hampshire court lacked jurisdiction over his person to modify its decree in any respect. When so authorized by state law the reservation of In personan jurisdiction over the parties to modify a decree as to its In futuro provisions continues as long as the effectiveness of the decree; and the party asking for such modification need only afford the other reasonable notice thereof. 2 This, indeed, is consonant with Florida law 3 and is, of course, not violative of any federal concept of due process. 4 Therefore, appellant/husband cannot collaterally attack the modified decree herein on those grounds insofar as said decree in fact modifies a prior decree. But it is otherwise, as we shall see, insofar as it may purport to be a new judicial determination outside the scope of the prior decree and insofar as it may be based upon an entirely new basis for additional relief.
To circumscribe the legal issues before us we now set forth the relevant portions of the appellee's petition to modify, a copy of which was served upon appellant here in Florida as aforesaid:
'Now comes Elizabeth M. West . . . and complains against Ernest F. West . . . and respectfully says as follows:
1) That the Divorce Decree . . . in this case provides that the Petitionee, Ernest F. West, shall pay to your Petitioner the sum of Twenty Dollars ($20.00) per week 'reduced to such amount as your petitioner is eligible for and does receive (funds) from the Social Security Administration.' In addition, the Petitionee is obligated to pay the Petitioner's medical bills and real estate taxes, heating bills, electric light bills, and Homeowner's Insurance Policy premiums incurred in connection with (the marital home given to appellee in the divorce proceeding).
7) The Petitionee has told your Petitioner that he does not intend any longer to comply with said Divorce Decree . . .
8) Your Petitioner believes and, therefore, avers that the Petitionee does not in fact intend to comply with the aforesaid Divorce Decree and is in anticipatory breach thereof; . . .
9) That your Petitioner is in need of the sum of $6,000.00 in order to make necessary repairs upon her home, Which repairs were not needed at the time of issuance of the aforesaid Divorce Decree and some of which repairs the Petitionee had promised he would perform. (Italics ours.)
11) Ernest F. West is in arrears in the approximate amount of $600.00 under said Divorce Decree.
WHEREFORE, your Petitioner, Elizabeth M. West, respectfully moves and prays:
(B) That the Decree of Divorce dated November 7, 1967, be amended as follows:
(1) That Ernest F. West be ordered to pay to Elizabeth M. West the sum of $6000.00 for necessary repairs upon (marital home).
(2) That Ernest F. West be ordered to pay to some suitable person or banking institution a suitable sum of money to be held in trust by said person or banking institution in order to pay such amounts of income and/or principal or both therefrom as is necessary to pay the obligations of Ernest F. West to Elizabeth M. West under said Divorce Decree.
(C) That Ernest F. West be ordered to pay (costs and attorney's fees) . . ..'
Upon appellant's default in the premises as aforesaid, the New Hampshire court entered the following relevant portions of the decree which is the subject matter of the instant proceeding:
'The above entitled case having come on for hearing, it appearing that the Libelant, Ernest F. West, having been personally served with a copy of the Petition to Modify Decree and to Deposit Funds with Trustee, and said Libelant, Ernest F. West, having failed to enter any appearance and having defaulted at the hearing on said Petition, the Petition is taken as confessed and it is hereby ORDERED ADJUDGED and DECREED as follows:
(1) No finding is made on the issue of contempt.
(2) The Court orders Ernest F. West to pay to the Exeter Banking Company the sum of $15,000.00 to be held in trust and to pay such amounts from income and/or principal thereof as is necessary to pay the obligations of Ernest F. West to Elizabeth M. West as they arise under said Divorce Decree.
(3) That reasonable Attorneys fees and costs as approved by the Court incurred by Elizabeth M. West as a result of having to bring this Petition are to be paid from said sum to be deposited with the Trustee.
(4) That in addition to the aforesaid sum of $15,000.00 to be paid to be Trustee, Ernest F. West Is ordered to pay forthwith to Elizabeth M. West the sum of $5,000.00 to pay for necessary repairs upon the residence in which she resides in East Kingston, New Hampshire.' (Italics ours.)
Returning to the issue of jurisdiction we first consider paragraph (4) of the decree relating to the award of $5,000 for house repairs. Alluding to paragraphs (1) and (9) of appellee's petition for modification we see that appellant was not obligated by the prior decree to pay any sums for either maintenance or repairs of the marital home given to appellee in the divorce proceedings. Accordingly, while we do not suggest that had appellant remained in New Hampshire and been personally served with process the decree could not have been modified with respect thereto, we do nevertheless say that the continuing In personam jurisdiction which exists for purposes of modifying such decree, cannot operate as a predicate for a new and independent cause of action or for the seeking of new and independent relief not provided for within the scope of that decree. 5 We conclude, then, that so much of the New Hampshire decree before us as relates to the...
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