Judges: PER CURIAM.
Attorneys: Kehoe Kehoe, for Appellant;
Gordon McCauley, J.C. Durrance and Kunkel White, for Appellee.
Filed: May 05, 1938
Latest Update: Mar. 02, 2020
Summary: In a decree of divorce granted in 1929 to the wife, Isabel Van Loon, on the ground of habitual indulgence in violent and ungovernable temper by the husband towards the wife, it is ordered "that the plaintiff be and she is hereby awarded the sum of $50.00 per month as permanent alimony," to be paid by the defendant, W.E. Van Loon. In 1936 Isabel Van Loon filed a Petition in the cause in which she in effect alleged that W.E. Van Loon paid three installments of the alimony decreed and "that said de
Summary: In a decree of divorce granted in 1929 to the wife, Isabel Van Loon, on the ground of habitual indulgence in violent and ungovernable temper by the husband towards the wife, it is ordered "that the plaintiff be and she is hereby awarded the sum of $50.00 per month as permanent alimony," to be paid by the defendant, W.E. Van Loon. In 1936 Isabel Van Loon filed a Petition in the cause in which she in effect alleged that W.E. Van Loon paid three installments of the alimony decreed and "that said def..
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I concur in the majority opinion in this case for the following reasons:
First. The decree dated October 1, 1929, awarded to the wife the sum of $50.00 per month as permanent alimony. The court by the terms thereof did not retain jurisdiction of the cause. The Court below was without authority to change, alter or amend this final decree in the absence of a showing of fraud. See Duss v. Duss, 92 Fla. 108, 111 So. 2d 382; Gaffny v. Gaffny, 129 Fla. 172,176 So. 2d 68; Mooty v. Mooty, 131 Fla. 151, 179 So. 2d 155, and Kennard v. Kennard, 131 Fla. 473, 179 So. 2d 660. See Schouler on Marriage and Divorce, Vol. 2 (6th Ed.) pages 1993-1995, par 1831.
Second. It is next contended that the power to alter, amend or modify the final decree is authorized by Chapter 16780, Acts of 1935, while the decree is dated October 1, 1929. I fail to appreciate the reasons presented for giving a retroactive effect and force to Chapter, supra. The weight of authority supports the conclusion that a statute passed after entry of a final decree does not authorize a court to alter, amend or modify the same. See Fuller v. Fuller, 49 R.I. 45, 139 A. 662; Walker v. Walker,155 N.Y. 77, 49 N.E. 663; Livingston v. Livingston, 173 N.Y. 377,66 N.E. 123; Guess v. Smith, 100 Miss. 457, 56 So. 2d 166; Krauss v. Krauss, 111 N.Y.S. 788; 57 Misc. 676; Schouler on Marriage and Divorce, Vol. 2, Section 1828; Beard v. Beard, 57 Neb. 754, 78 N.W. 255.
Third. While Chapter 16780, supra, may be declaratory of the law existing in 1929, no authorities have been submitted to sustain this conclusion.
The decree should be affirmed.
