Thompson v. Stewart

District Court of Appeal of Florida

Thompson v. Stewart

569 So. 2d 1372, 1990 Fla. App. LEXIS 8809, 1990 WL 179115

CourtDistrict Court of Appeal of Florida

DecidedNovember 21, 1990

DocketNo. 90-1891

StatusPublished

Cited by2 cases

This text of 569 So. 2d 1372 (Thompson v. Stewart) 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

Thompson v. Stewart, 569 So. 2d 1372, 1990 Fla. App. LEXIS 8809, 1990 WL 179115 (Fla. Ct. App. 1990).

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Opinion

PER CURIAM.

We grant the writ of prohibition and quash the trial court’s order setting the supplemental petition for modification for trial. The trial court does not have [1373]*1373jurisdiction to modify an order under appeal. Campbell v. Campbell, 436 So.2d 374 (Fla. 5th DCA 1983), rev. dismissed, 453 So.2d 1364 (Fla.1984); Buckley v. Buckley, 343 So.2d 890 (Fla. 4th DCA 1977), appeal dismissed, 362 So.2d 1050 (Fla.1978); Kalmutz v. Kalmutz, 299 So.2d 30 (Fla. 4th DCA 1974). The underlying final judgment of dissolution is now pending in the Supreme Court on a certified question from this court. The pendency of the case in the Supreme Court deprives the trial court of jurisdiction to modify the judgment. See State v. Meneses, 392 So.2d 905 (Fla.1981). The husband may of course request relinquishment of jurisdiction from the court having jurisdiction if he deems it advisable, or he may petition the trial court for temporary relief pending appeal in accordance with Florida Rule of Appellate Procedure 9.600(c). However, it is clear from the petition that he seeks elimination of permanent alimony and lump sum alimony from the final judgment, which is not relief “pending appeal” as contemplated within the appellate rule.

ANSTEAD, GUNTHER and WARNER, JJ., concur.

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PER CURIAM.

We grant the writ of prohibition and quash the trial court’s order setting the supplemental petition for modification for trial. The trial court does not have [1373]*1373jurisdiction to modify an order under appeal. Campbell v. Campbell, 436 So.2d 374 (Fla. 5th DCA 1983), rev. dismissed, 453 So.2d 1364 (Fla.1984); Buckley v. Buckley, 343 So.2d 890 (Fla. 4th DCA 1977), appeal dismissed, 362 So.2d 1050 (Fla.1978); Kalmutz v. Kalmutz, 299 So.2d 30 (Fla. 4th DCA 1974). The underlying final judgment of dissolution is now pending in the Supreme Court on a certified question from this court. The pendency of the case in the Supreme Court deprives the trial court of jurisdiction to modify the judgment. See State v. Meneses, 392 So.2d 905 (Fla.1981). The husband may of course request relinquishment of jurisdiction from the court having jurisdiction if he deems it advisable, or he may petition the trial court for temporary relief pending appeal in accordance with Florida Rule of Appellate Procedure 9.600(c). However, it is clear from the petition that he seeks elimination of permanent alimony and lump sum alimony from the final judgment, which is not relief “pending appeal” as contemplated within the appellate rule.

ANSTEAD, GUNTHER and WARNER, JJ., concur.

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Bluebook (online)

569 So. 2d 1372, 1990 Fla. App. LEXIS 8809, 1990 WL 179115, Counsel Stack Legal Research, https://law.counselstack.com/opinion/thompson-v-stewart-fladistctapp-1990.

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