State, Ex Rel. v. Harrison

In an answer filed by the Honorable W.T. Harrison, Judge of the Circuit Court of Sarasota County, Florida, to an alternative writ of mandamus previously issued by this court in this cause it has been made to appear by the said respondent that the Circuit Court of Sarasota County, Florida, is without power to entertain, consider or modify a final decree dated October 18, 1932, between Priscilla Willard and Frank H. Willard, entered by the Circuit Court of Sarasota County, Florida, for the following reasons: (1) That Chapter 16780, Acts of 1935, did not confer such power on the Court; (2) that the Court did not have the power under its equity jurisdiction; (3) the Court did not retain jurisdiction of the final decree; (4) change of conditions in the status of the parties is insufficient in law to confer the necessary power; (5) that the final decree can be performed by the relator or enforced by the courts.

It is contended by relator that the final decree dated October 18, 1932, does not provide a gross property settlement on Priscilla Willard because it provides for the payment of "the sum of $150.00 per week for her support and maintenance" and these weekly payments for "her support and maintenance" shall continue until a trust fund in the sum of $150,000.00 shall have been created or established on the part of Frank H. Willard, when the weekly payment in "the sum of $150.00 for her support and maintenance" shall immediately cease and determine." The decree provides that Priscilla Willard shall not have or own the said trust fund, supra, but only the income therefrom for her support and maintenance as well as her said children.

The trust fund shall be owned by the children "share and share alike," and divided when the children shall reach the age of forty-five years. Priscilla Willard, by the terms of the final decree, does not own any portion of the trust fund and she only has an interest in the income therefrom when a substitution is made from the weekly payment of $150.00 to the income from the contemplated trust fund of $150,000.00. It is difficult to see or determine wherein a gross property settlement has been made on Priscilla Willard by the terms of the decree, but it is clear that the support and maintenance should be the sum of $150.00 per week, and from this sum she is required to support herself and the two minor children. We have not overlooked the stipulations of counsel which later merged into the final decree.

The terms of the final decree awarded the custody of the two children to Priscilla Willard and decreed the payment of $150.00 weekly to her for hers and their support "and the court hereby retains jurisdiction of this cause for the purpose of requiring each of the parties to perform the requirements of the decree." Section 4987 C.G.L., makes it the duty of the court to make such orders or decrees as shall be necessary for the general welfare of the children and their interest can at any time be inquired into by a court of competent jurisdiction. The decree here and the statute, supra, give the court power to change, alter or modify any decree involving the best interest and general welfare of children.

It having been determined that the payment of the $150.00 weekly was for the support and maintenance of the wife and children and is commonly considered as alimony as to the wife, it becomes pertinent to inquire into the future payments, as changed conditions can be inquired into, and an order or decree made and entered where right and justice prevail, as contemplated by Section 4 of the Declaration of Rights of the Constitution of Florida, viz.:

"All courts in this State shall be open, so that every person for any injury done him in his lands, goods, person or reputation shall have remedy, by due course of law, and right and justice shall be administered without sale, denial or delay."

It is the duty of this Court to see that right and justice prevail. It is admitted here that Priscilla Willard has remarried and that the relator's funds are insufficient to continue future payments in the sum of $150.00 per week. In the case of Carlton v. Carlton, 87 Fla. 460, 100 So. 745, this Court held that a divorced wife who married another man is not entitled to alimony from her divorced husband. See: Wilson v. Caswell, 272 Mass. 297,172 N.E. 251; Canary v. Canary, 89 Colo. 483, 3 P.2d 802; Ross v. Ross, 1 Cal.2d 368, 35 P.2d 316; Shoop v. Shoop,58 S.D. 593, 237 N.W. 904; Reynolds v. Reynolds, 53 R.I. 326,166 A. 686; Kunker v. Kunker, 230 App. Div. 641, 246 N.Y.S. 118; Williams v. Williams, 119 Neb. 8, 226 N.W. 798; Randall v. Randall, 181 Minn. 18, 231 N.W. 413; Eddy v. Eddy, 264 Mich. 328, 249 N.W. 868; Camp v. Camp,158 Mich. 221, 122 N.W. 521; Cary v. Cary, 112 Conn. 256,152 A. 302.

It follows that the answer fails to submit a sufficient legal defense. This Court having determined the question of law presented for decision in this cause, the opinion herein filed will be a guide for such further proceedings on the petition filed by Frank H. Willard on February 1, 1937, in the case of Priscilla Willard Walpole, plaintiff, v. Frank H. Willard, defendant, in the Circuit Court for Sarasota County, Florida, as may be appropriate.

WHITFIELD, TERRELL, BUFORD and CHAPMAN, J.J., concur.

BROWN, J., concurs specially.