Guinta v. Lo Re

31 So. 2d 704, 159 Fla. 448, 1947 Fla. LEXIS 802

• Court: Supreme Court of Florida
• Decided: August 1, 1947
• Status: Published

Opinions

BARNS, J.:

In November, 1931, Josephine Lo Re was divorced from Baldassaro Guiseppe Lo Re, and by stipulation she was awarded the custody of their two minor children, Antoinette Lo Re and Catherine Lo Re. The divorce decree also required Baldassaro Guiseppe Lo Re to pay Josephine Lo Re ten dollars per week for the support of the children, commencing the first day of November, 1931. Baldassaro Guiseppe Lo Re died May 27, 1946, at which time it is alleged that he had paid Josephine Lo Re $5,434 in compliance with the divorce decree, but it is also alleged that his payments thereon were $2,176, in arrears. His widow (second wife) Judith Ida Lo Re was appointed executrix of his estate.

On July 17, 1946, petitioners filed their claim against the estate of the decedent in the probate court for all amounts due on the divorce decree at the time of his death, including such amounts as would accrue to the children under the decree on May 11, 1950, and July 16, 1951, the dates they would reach their majority. The executrix refused payment of these claims on the ground, (1) as to the amount alleged to be due at the death of the decedent, she contends that it was paid and discharged during his lifetime. (2) As to the amount alleged to have accrued after the death of the decedent and before the children attained their majority, she says that decedent’s duty to contribute to the support of his minor children was terminated by his death, and no such claim can now be enforced.

Petitioners thereupon filed their bill of complaint in the Circuit Court, praying for an adjudication of the amount due them at the death of their father, and for such amounts as would accrue to them between the death of their father and the date they attain their majority, and that said sums be charged against the father’s estate. A motion to dismiss was overruled and on final hearing the chancellor found that petitioners had no valid claim for amounts accruing after the death of their father, but as to matured installments the chancellor held that these could be recovered, for there was an adequate remedy at law, and transferred the cause to the law side of the docket for proper pleadings and determination. This appeal is from that part of the decree holding that no valid claim existed in favor of petitioners against their father’s estate for amounts accruing to them after his death and prior to their majority.

A point for determination is whether or not a divorce decree requiring the father to pay ten dollars per week for the support of his minor children is enforceable against his estate for amounts accruing after his death and during the minority of his minor children.

It is a maxim that equity acts in personam and not in rem.

The decree of the chancellor was:

“IT IS ALSO FURTHER ORDERED, ADJUDGED AND DECREED that the complainant pay to the cross-complainant, for the maintenance of their said children, the sum of TEN DOLLARS ($10.00) per week, commencing the first day of November, A. D. 1931.”

Upon death the obligation under this decree ended.

Instead of proceeding in the original suit wherein the decree was rendered by attempting to have the executrix substituted as a party in lieu of the deceased husband the wife brought an independent suit to enforce the decree.

It is our conclusion that this suit should be treated as supplemental to the original suit for divorce; that equity has jurisdiction to adjudicate the amounts due and unpaid under the original decree as of the date of the husband’s death and to enter a money judgment for such amounts absent other equities.

Whereupon it is ordered that the writ be denied except as to the part of the chancellor’s order transferring the cause to the law side of the Court. This was originally a suit in equity and there is no reason why equity cannot do complete justice respecting it. Equity having taken jurisdiction will ordinarily do complete justice between the parties. As to that part of the order transferring the cause to the law side of the Court the petition is granted and the order is quashed.

BUFORD, and ADAMS, JJ., and TAYLOR, Associate Justice, concur. THOMAS, C. J., and TERRELL, J., dissent.