Morris v. Truax

152 So. 2d 515, 1963 Fla. App. LEXIS 3631
CourtDistrict Court of Appeal of Florida
DecidedApril 17, 1963
DocketNo. 3401
StatusPublished
Cited by8 cases

This text of 152 So. 2d 515 (Morris v. Truax) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Morris v. Truax, 152 So. 2d 515, 1963 Fla. App. LEXIS 3631 (Fla. Ct. App. 1963).

Opinion

WHITE, JOSEPH S., Associate Judge.

This appeal, taken by the plaintiff in the lower court, brings for review a final decree in a suit in Chancery brought by defendant’s former wife to establish and enforce in Florida a decree of a court of the State of Illinois. The complaint in the lower court showed that the decree was rendered August 4, 1955; that it divorced the parties and awarded custody of two children, ages eleven and seven, to the former wife, with visiting privileges to the husband ; that it required the husband to pay to the wife $30.00 per week child support “until further order of the court”. The complaint charged that defendant “has failed and refused to pay in full to plaintiff the sums of money required under the provisions of the decree * * * and owes the plaintiff the sum of $9,060.00”. Plaintiff prayed that the Illinois decree be established and enforced “as if originally rendered by this court”;1 that defendant be required to pay sums in arrears under that decree, plus interest, costs and attorneys’ fees,2 “and that he be punished as for contempt for any failure so to do”. The complaint concluded with a prayer for general relief.

Defendant’s answer denied that he had failed to pay “in full” the sums due under the Illinois decree, “although defendant admits he has not paid a part of the sums set forth in said decree”; that after entry of the Illinois decree he “made periodic payments to the plaintiff for the support of” the children.

As an affirmative defense defendant stated that his former wife, with the intent to deprive him of his right to visit the children, had “concealed and declined to reveal or disclose the whereabouts of her children or [517]*517the defendant’s children to defendant * * * although defendant has desired and attempted to exercise his right of visitation since said decree”. He stated that he had made “numerous efforts to determine the whereabouts and welfare of said children without success; that defendant has not been able to see or correspond with said children, because of plaintiff’s concealment of their whereabouts, since the date of said decree”. See Denton v. Denton, Fla. App.1962, 147 So.2d 545.

As a further defense, defendant stated that he had remarried, had two additional children to support and had “incurred and paid and will in the future incur and pay extraordinary and extensive medical expenses for his present family”. He prayed that if the court required him to pay plaintiff any sums “the circumstances *' * * be taken into consideration in determining the manner and terms of such payment, and that provision be made to assure defendant the right of visitation, to see and correspond with said children and to know the circumstances of their welfare and whereabouts”. The answer concluded with the statement: “The complaint fails to state a cause of action”.

At this point plaintiff moved for a decree on the pleadings. The motion was granted and plaintiff’s counsel was directed “to prepare and upon notice to defendant, submit an appropriate final decree, together with evidence as to a reasonable attorneys’ fee”. At the same time the court denied defendant’s “motion to dismiss the complaint”, contained in the answer. After-wards the final decree from which the former wife has appealed, was rendered.3 In due course plaintiff presented a petition for rehearing upon the grounds that:

“1. The Plaintiff and Defendant, through their attorneys, had agreed prior to the entry of said Decree that as of February 9, 1962, $9,250.00 had accrued pursuant to a divorce Decree entered by the Circuit Court of McLean County, Illinois, and which was established by this Court as a Florida Decree.
“2. The Court was advised by counsel for both Plaintiff and Defendant that the amount of $9,250.00 was unpaid and that such amount should be shown in the Decree as the sum due for ar-rearages accumulated between August 4, 1955, and February 9, 1962.
“3. The Court, despite the oral agreement between the parties of which the Court was fully advised, refused to enter the Decree as written and agreed to by the parties, and struck from said Decree all reference to the unpaid arrearages, i. e., $9,250.00.
“4. Plaintiff is entitled as a matter of law to have included in the Court’s Decree the amount of undisputed ar-rearage' which under the law of Illinois, had become vested at the time the Florida Decree was entered.”

In his order denying the petition for rehearing, the chancellor stated:

“ * * * the Court feeling that there has been no determination of a [518]*518fact question, namely, that of arrear-age, by either the Illinois Court that rendered the original decree or this Court which has issued a Florida decree based upon that Illinois decree. The Court feels that this is a fact question to be determined as is customary in Florida decrees upon an Order to Show Cause. That the question of whether or not an arrearage exists, and whether or not equitable defenses are available as to all or any portion of claimed arrearage is properly and customarily determined during a hearing on an Order to Show Cause and not in a Final Decree in which the Florida decree adopts a foreign decree.”

Upon the basis of the record as thus made, plaintiff contends in support of her appeal, that the chancellor erred in failing to determine the amount of arrearage due her under the Illinois decree, “particularly when the parties stipulate to the correctness of the amount claimed”. Much is said in the briefs filed in this Court regarding the stipulation in question. In fact, the appellee concedes that there was a stipulation “made in the presence of the trial court, which is the only tribunal which1 is aware of the exact nature of the stipulation and the circumstances under which the same was made”. However, the only reference to the stipulation found in the record brought here from the lower court is the statements made in plaintiff’s petition for rehearing. From appellant’s reply brief, it is indicated that the stipulation was made orally by counsel after entry of the order granting plaintiff’s motion for decree on the pleadings, and outside the presence of the lower court; that the chancellor was apprised of the stipulation upon presentation of the final decree, but that there was no compliance with Rule 1.5(d), Florida Rules of Civil Procedure, 30 F. S.A.4

If it be a fact, and we have no reason to 'doubt it, that the chancellor was apprised of the stipulation, he must have rejected it, as he had a right to do, because of the failure to comply with Rule 1.5(d). This conclusion follows from the chancellor’s statement in the order denying plaintiff’s petition for rehearing, that the question of arrearage was yet .to be determined.

Notwithstanding the admissions made by the parties in their briefs filed in this Court, it cannot be said that the chancellor was in error in rejecting a stipulation which did not comply with the rule. The onus is upon the appellant to show that error was committed in the lower court, and the question must be decided, not on what may be admitted in this Court, but what was before the chancellor when he ruled.

As previously stated, appellant contends that she was entitled to have the amount of arrearage determined by the chancellor in the final decree.

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Bluebook (online)
152 So. 2d 515, 1963 Fla. App. LEXIS 3631, Counsel Stack Legal Research, https://law.counselstack.com/opinion/morris-v-truax-fladistctapp-1963.