164 So. 2d 833 | Fla. Dist. Ct. App. | 1964
This domestic litigation has previously been before this court. See: Kittel v. Kittel; Fla.App.1963, 148 So.2d 574, wherein we affirmed a final decree of separate maintenance. Subsequently, the husband journeyed to Mexico, where he instituted proceedings to obtain a Mexican divorce, while the wife remained in this jurisdiction. Before the entry of the Mexican decree of divorce, the wife instituted an action in the Circuit Court seeking to enjoin the husband from proceeding in Mexico. An injunction was issued, which was subsequently dissolved and the husband proceeded with his Mexican divorce and obtained a decree. Thereafter, the complaint [seeking injunctive relief] was dismissed with leave to amend and the wife filed her amended complaint in the nature of a declaratory decree, the substance of which contended the Mexican decree of divorce was void. In said amended complaint, she sought attorney’s fees for her counsel in representing her in the attack on the Mexican divorce decree. To this amended complaint, the husband filed a motion to dismiss alleging (a) that same failed to state a cause of action against him, and (b) that same failed to contain sufficient allegations.
It is apparent, under the decisions of tlie Supreme Court of Florida and other appellate courts of this State, that a declaratory decree may not be used to attack the validity of a judgment or decree. See:
Turning to the wife’s appeal, it is apparent from the record that no right to attorney’s fees exists as nothing in these proceedings is, in effect, an enforcement of the wife’s separate maintenance award. The foreign decree recognized the validity of the separate maintenance decree and, as far as this record reveals, the husband is abiding by the terms thereof. Therefore, in accordance with Mouyois v. Mouyois, Fla.App.1957, 97 So.2d 718, the wife is not entitled to attorney’s fees in the instant action. However, it is pointed out that there are circumstances which permit a wife to recover attorney’s fees. See: Simpson v. Simpson, Fla.1953, 63 So.2d 764.
Therefore, for the reasons stated above, the order of the chancellor under review in Case No. 64 — 91 be and the same is hereby affirmed, and the order under review in Case No. 64 — 92 is hereby affirmed.
Affirmed as to Case No. 64-91.
Affirmed as to Case No. 64-92.
. “to entitle plaintiff to the equitable relief sought by way of a Declaratory Decree.’