HUSTON L. MASSEY, APPELLANT,
v.
ALICE E. MASSEY, APPELLEE
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The court held that a permanent alimony award was improper because the wife did not request it in her pleadings and the issue was not tried by consent.
The husband appealed a final judgment of dissolution of marriage, specifically challenging the award of permanent alimony to the wife. The wife had no…
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SCHEB, Acting Chief Judge.
Huston L. Massey, the husband, appeals from a final judgment of dissolution of marriage. He limits his challenge to the trial court’s award of $50 per week permanent alimony to the wife. His point is meritorious. In her petition for dissolution the wife did not request permanent alimony, or alimony of any kind. At the dissolution hearing, she did not ask to amend her pleadings to request alimony, nor did the parties try the issue by consent. Therefore, the award was improper. See Cooper v. Cooper, 406 So. 2d 1223 (Fla. 4th DCA 1981); James v. James, 374 So. 2d 1085 (Fla. 5th DCA 1979).
The wife correctly points out that the final judgment awarded the husband the use and possession of the marital home while directing that the parties would remain tenants in common of the property. Nevertheless, we reject her contention that the trial court awarded her the permanent alimony to offset the husband’s use and possession of the marital home.
Accordingly, we reverse and remand to the trial court to vacate the award of permanent alimony. On remand, the trial judge should set a definite time frame for the husband’s use and possession of the home pending sale. Otherwise, we affirm the final judgment.
CAMPBELL and HALL, JJ., concur.
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Hines v. Hines, 494 So. 2d 297 (Fla. 3d DCA 1986)…nst the wife, she failed to file any pleadings in the dissolution of marriage action initiated by her husband. A court is not at liberty to award alimony where the benefitting spouse has failed to seek such relief in the pleadings. Massey v. Massey, 478 So. 2d 478 (Fla. 2d DCA 1985); Hernandez v. Hernandez 444 So. 2d 35 (Fla. 3d DCA 1983), review denied, 451 So. 2d 848 (Fla.1984); Cooper v. Cooper, 406 So. 2d 1223 (Fla. 4th DCA 1981). In addition, a default precludes the defaulting party from filing any plead…
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Kratzer v. Reimiller, 552 So. 2d 1188 (Fla. 5th DCA 1989)…r ability to pay. Whether this failure to plead for alimony and attorney’s fees was intentional or negligent is of no matter. It is wrong to give what is not properly pleaded. See Hines v. Hines, 494 So. 2d 297 (Fla. 3d DCA 1986); Massey v. Massey, 478 So. 2d 478 (Fla. 2d DCA 1985); Cooper v. Cooper, 406 So. 2d 1223 (Fla. 4th DCA 1981); James v. James, 374 So. 2d 1085 (Fla. 5th DCA 1979). Those portions of the judgment awarding alimony and fees are reversed; otherwise, the judgment is affirmed. AFFIRMED in…1 / 2
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McCLAIN v. Madlen McCLAIN, 105 So. 3d 641 (Fla. 3d DCA 2013)…t liberty to award alimony where the benefitting spouse has failed to seek such relief in the pleadings.” Hines v. Hines, 494 So. 2d 297, 297 (Fla. 3d DCA 1986); see also Palumbo v. Palumbo, 576 So. 2d 799, 800 (Fla. 1st DCA 1991); Massey v. Massey, 478 So. 2d 478, 479 (Fla. 2d DCA 1985); Cooper v. Cooper, 406 So. 2d 1223, 1224 (Fla. 4th DCA 1981). Unless and until is granted, the mere filing of a motion to amend the pleadings does not constitute an actual amendment to the pleadings. Accordingly, the portion…
Authorities Cited
- Cooper v. Cooper, 406 So. 2d 1223 (Fla. 4th DCA 1981)
- James v. James, 374 So. 2d 1085 (Fla. 5th DCA 1979)