LIESELOTTE D. MOSSEL, APPELLANT,
v.
OTTO K. MOSSEL, APPELLEE
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An order dismissing a complaint with leave to amend is a non-appealable, non-final order, and therefore this appeal is dismissed.
Following a dissolution judgment granting the wife sole use of the marital home, the husband filed for partition. The wife's affirmative defenses and …
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LETTS, Chief Judge.
In the Final Judgment of Dissolution of Marriage rendered in 1977, the wife was given sole use of the marital home for an unspecified period of time subject to the right of partition at a later date. No appeal was taken from that judgment. In 1981, the husband filed a complaint for partition and the court struck two paragraphs of the wife’s affirmative defenses thereto and dismissed her counterclaim. The order gave her twenty days within which to amend. She now appeals that order. An order dismissing a complaint with leave to amend is a non-appealable non-final order Petnuch v. Smith, 395 So. 2d 294 (Fla. 5th DCA 1981). We therefore dismiss this appeal.
However, we pause to announce that even on the merits we would affirm. The wife here seeks a fresh determination of her right to alimony and a special equity. These issues cannot be raised in a partition suit after the entry of a non-appealed final judgment of dissolution Craig v. Craig, 404 So. 2d 413 (Fla. 4th DCA 1981), Cribb v. Cribb, 261 So. 2d 566 (Fla. 4th DCA 1972). Likewise, the counterclaim was similarly correctly dismissed since it seeks a special equity and/or lump sum alimony award.
APPEAL DISMISSED.
HURLEY and WALDEN, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Davis v. Rosman Charles Dieujuste, 496 So. 2d 806 (Fla. 1986)…cata thus precludes other than an equal partition of the property. Therefore, the only property rights which may be raised in an action for partition are those which arose subsequent to the final judgment of dissolution. See, e.g., Mossel v. Mossel, 424 So. 2d 979 (Fla. 4th DCA 1983). In conclusion, we hold that where a trial court has acquired jurisdiction to adjudicate the respective rights and obligations of the parties, a final judgment of dissolution settles all such matters as between the spouses evolv…
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Minty v. Meister Financialgroup, Inc., 97 So. 3d 926 (Fla. 4th DCA 2012)…claims and the court to decide any equitable claims. [*932] On the appeal of the dismissal order, we lack jurisdiction and dismiss that part of the appeal. The dismissal order was with leave to amend the affected counterclaims. See Mossel v. Mossel, 424 So. 2d 979, 980 (Fla. 4th DCA 1983) (dismissing appeal of circuit court’s dismissal of counterclaim with leave to amend because “[a]n order dismissing a complaint with leave to amend is a non-appealable non-final order.”) (citation omitted). Appeal reversed i…
Authorities Cited
- Curran v. Universal Bldg. Specialties, 261 So. 2d 566 (Fla. 4th DCA 1972)
- Craig v. Craig, 404 So. 2d 413 (Fla. 4th DCA 1981)
- Petnuch v. Kevin Charles Smith (a minor) and George Charles Smith, 395 So. 2d 294 (Fla. 5th DCA 1981)