Kitchens v. KitchensKitchens v. Kitchens
The appellant-husband was the defendant below and seeks review of a final decree which, inter alia, (1) granted the appellee-wife a divorce; (2) granted the appellee custody of the children; (3) ordered the appellant‘s interest in their jointly held property transferred to the appellee as satisfaction for expenditures for necessities found to be due appellee from appellant; and (4) awarded appellee permanent alimony of $250 per month, child support of $450 per month and attorney‘s fees of $750.
This action was commenced by appellee in October, 1962, when she filed her “complaint for separate maintenance and other relief” pursuant to
The appellant raises a number of points on appeal. First, he contends that the lower court lacked jurisdiction over him since he was served with a complaint seeking separate maintenance pursuant to
The appellee takes the position that service of the original complaint conferred jurisdiction on the court below to enter a final decree of divorce since an action filed pursuant to § 65.09, supra, is identical, with respect to allegation and proof, to one filed under § 65.04, supra. Neither party to this appeal has been able to cite any authority on the direct point involved, nor has our research revealed any. The appellee does, however, cite several cases tending to support her position, principally, Ex parte Stroud, 248 Ala. 480, 28 So.2d 316, wherein the Supreme Court of Alabama in a similar situation, reasoned:
“The bill does not seek a divorce specifically, but only for maintenance and custody of the children. See Ex parte Hale, 246 Ala. 40, 18 So.2d 713. But its allegations are sufficient to support a decree for divorce, and a general prayer is made in the bill. So that it would support a decree of divorce if granted by the court.”
However, for the reasons we now set forth, it is unnecessary for us to specifically decide this question of jurisdiction. As previously discussed, the appellant was not notified of the motion whereby appellee‘s cause of action was changed from one for separate maintenance to one for divorce. We are of the view that this motion was in effect an amendment of the appellee‘s original complaint by virtue of the averment in the complaint that “* * * plaintiff in these proceedings does not seek a decree of absolute divorce, unless prayed for prior to the entry of the final decree herein, but seeks alimony and support money unconnected with divorce. * * *” Obviously, the relief granted by the final decree was substantially different from that initially prayed for. Although the chancellor might have retained jurisdiction to grant the divorce upon proper application, it was incumbent upon the appellee to notify the appellant that she had amended her cause of action. See
The conclusion reached above, however, does not require the reversal of all of the decree, as contended by the appellant. The appellant was put on notice by the service of the original complaint that he was being sued for separate maintenance. He chose not to plead or otherwise enter an appearance until after the entry of the final decree. The chancellor was authorized, pursuant to
Turning now to the appellant‘s second point, he contends that it was error for the chancellor to order his interest in their jointly held property (a homestead residence) to be transferred to the appellee in satisfaction of certain expenditures for necessities made by the appellee during the pendency of this action (some $8,610). It should be observed that there was no pendente lite award of alimony or child support to warrant the adjudication of a money decree against the appellant, nor was there any basis for impressing it as a lien upon the appellant‘s interest in the real property. While we are in sympathy with the efforts of the chancellor in attempting to assure the appellee payment of the sum found to be due for necessities which the appellant would be legally obligated to pay, the procedure utilized was clearly erroneous.
Treating this action as one for divorce, pursuant to § 65.04, supra, it would likewise be error for the chancellor to transfer or partition the jointly owned property of the parties. With several exceptions not applicable here,2 it is well established that in the absence of an agreement between the parties or appropriate3 pleadings praying for partition of jointly owned property upon the entry of a decree of divorce, a chancellor is without authority to dispose of jointly owned property. See Gonzalez v. Gonzalez, Fla.App. 1963, 156 So.2d 206, and cases cited therein at page 207. This doctrine is based on the rationale that once the marriage is dissolved and the proportionate share of each in the estate has been fixed, the parties become tenants in common of such property formerly held as an estate by the entireties.4 Thereafter it is up to them to decide whether the property should be partitioned or disposed of in some other manner. Gonzalez v. Gonzalez, supra. Accordingly, this portion of the decree must be reversed.
Appellant‘s final point challenges the awards of alimony, child support and attorney‘s fees. He contends the chancellor abused his discretion in failing to consider his ability to pay the amounts awarded. We have carefully reviewed the record in the light of this contention and conclude that an abuse of discretion has not been demonstrated.
For the foregoing reasons, that portion of the decree (1) granting the appellee a divorce and (2) awarding the appellant‘s interest in the homestead property to the appellee is reversed. The remainder of the decree is affirmed and the cause is remanded for further proceedings not inconsistent herewith.
Affirmed in part, reversed in part and remanded.
ON REHEARING
PER CURIAM.
The appellant, by petition for rehearing, contended that the award of $750 attorneys’ fees not only was a gross abuse of discretion but was not supported by any testimony or evidence. We granted rehearing on that portion of the petition and heard oral argument.
We are now of the view that since no testimony or evidence appears in the record before us to support the award of attorneys’ fees, the same should be and is hereby reversed. Although we are not in a position to determine the reasonableness of the award made, nevertheless we observe that this was a case which proceeded ex parte after the entry of a default against the appellant and no novel questions or unusual circumstances arose.