EDNA FABIO, FORMER WIFE, APPELLANT,
v.
EUSEBIO MONELL, JR., FORMER HUSBAND, APPELLEE
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A former wife appealed a trial court's decision domesticating a foreign divorce decree, challenging the court's refusal to make a child support modification retroactive to the petition filing date. The Fifth District Court of Appeal affirmed, holding that a trial court lacks jurisdiction to modify a foreign decree retroactively until the foreign judgment is first established as a Florida judgment.
A trial court lacks the authority or power to modify a foreign judgment until that foreign judgment is established as a Florida judgment. Therefore, retroactive modification of child support cannot be made to a date prior to the domestication of the foreign decree.
[1] A trial court lacks the authority to modify a foreign judgment until that foreign judgment has been established as a Florida judgment.
[2] A foreign support judgment may be domesticated in Florida and then, as a Florida decree, modified in Florida.
Previewing 2 of 5 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“a foreign support judgment may be first domesticated here and then, as a Florida decree, modified here”
Establishes the required procedural sequence: domestication must precede any modification of a foreign support judgment
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Join FLexlaw to unlock all legal intelligenceThe trial court domesticated a foreign divorce decree and modified child support provisions. The former wife sought to have the modification apply ret…
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DIAMANTIS, Judge.
This is an appeal from a final judgment domesticating a foreign divorce decree and modifying child support provisions in said decree. The former wife appeals the trial court's failure to make the modification of child support retroactive to the date of filing of the petition to establish and modi fy the foreign decree as a Florida judgment. We affirm.
In Palladay v. Palladay, 422 So. 2d 1108 (Fla. 5th DCA 1982), we reversed the trial court for dismissing an action to domesticate, enforce and modify a foreign divorce judgment containing provisions for alimony and child support. In reversing the trial court we stated that “[a] foreign support judgment may be first domesticated here and then, as a Florida decree, modified here.” Id., at 1108. This language in Pal-laday is consistent with the holding in Smith v. Smith, 197 So. 2d 16, 17 (Fla. 3d DCA 1967), which upheld a trial court’s refusal to entertain a request for modification to increase the amount of support during the pendency of an action to establish a foreign judgment because at that time the foreign decree had not been established in this state.
In other words, a trial court lacks the authority or power to modify a foreign judgment until that foreign judgment is established as a Florida judgment. We realize that in Witcher v. Petty, 534 So. 2d 1240, 1242 (Fla. 5th DCA 1988), this court reached a contrary result when we held that an increase in child support should have been made retroactive to the time when the petition to domesticate and modify was filed because the ability to pay and the increased need existed at that time. However, Witcher did not address the jurisdictional issue of the authority or power of the trial court to modify the support retroactive to the time the petition to domesticate and modify the foreign judgment was filed. Witcher only dealt with the abuse of discretion on the part of the trial court for failure to make the increase in support retroactive and relied upon authority which did not involve a modification of a foreign decree. To the extent that Witcher is inconsistent with this opinion, we recede from Witcher and reaffirm our position in Palladay.
We further certify conflict with Morin v. Morin, 466 So. 2d 1255, 1257-58 (Fla. 2d DCA 1985). In Morin, the appellate court held that the trial court erred in modifying support payments to a date prior to the date the petition to domesticate and modify the foreign judgment was filed, but held that the trial court could modify the foreign judgment retroactive to the date of the filing of the petition. We note that Morin did not address the jurisdictional issue and relied upon authority which involved modification of a Florida judgment.
Accordingly, we affirm the trial court for the reasons set forth in this opinion.
AFFIRMED.
GOSHORN, C.J., and DAUKSCH, COBB, COWART, HARRIS, PETERSON and GRIFFIN, JJ., concur. W. SHARP, J., dissents without opinion.
Cases With Similar Vibessemantic neighbors from the corpus
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Cited By
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Barr v. Barr, 724 So. 2d 1200 (Fla. 1st DCA 1998)…o be retroactive. The trial court is not bound to modify the judgment as of the date the application is filed, as opposed to the date the order is entered, but it has the discretion to do so. Id. at 1257-58 (citations omitted). In Fabio v. Monell, 594 So. 2d 782, 783 (Fla. 5th DCA 1992), however, the Fifth Dis- [*1202] triet sitting en banc held that “a trial court lacks the authority or power to modify a foreign judgment until that foreign judgment is established as a Florida judgment.” Thus, under Fabio,…
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Spalding v. Spalding, 886 So. 2d 1075 (Fla. 5th DCA 2004)…r under the law of that state. After a number of additional hearings and other proceedings, the trial court eventually concluded that it had the authority to modify the out-of-state alimony order, and cited this court’s decision in Fabio v. Monell, 594 So. 2d 782 (Fla. 5th DCA 1992), as authority for its determination. When the trial court subsequently reduced the amount of alimony required of the Former Husband, and did so retroactively to the date the Former Husband filed his petition to reduce alimony, th…
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McGEE-Manis v. Manis, 657 So. 2d 78 (Fla. 5th DCA 1995)…ate the petition was filed. Accordingly, we remand with instructions that the modification order be made retroactive to the filing date. See Witcher v. Petty, 534 So. 2d 1240, 1242 (Fla. 5th DCA 1988), receded from on other grounds, Fabio v. Monell, 594 So. 2d 782 (Fla. 5th DCA 1992) (en banc). In all other respects, the trial court’s order is affirmed. AFFIRMED in part; REVERSED in part; and REMANDED with instructions. PETERSON, C.J., and GOSHORN, J., concur.…
Authorities Cited
- Morin v. Morin, 466 So. 2d 1255 (Fla. 2d DCA 1985)
- Witcher v. Petty, 534 So. 2d 1240 (Fla. 5th DCA 1988)
- Smith v. Farrell M. Smith, 197 So. 2d 16 (Fla. 3d DCA 1967)
- Palladay v. Palladay, 422 So. 2d 1108 (Fla. 5th DCA 1982)