Protheroe v. Protheroe

328 So. 2d 417 | Fla. | 1976

OVERTON, Chief Justice.

Certiorari was initially granted in this cause because of an apparent conflict between the instant decision of the First District Court of Appeal reported at 300 So.2d 748 (Fla.App. 1st 1974), and Chastain v. Chastain, 73 So.2d 66 (Fla.1954), Gamse v. Gamse, 291 So.2d 620 (Fla.App. 3d 1974), and DeFrancisco v. DeFrancisco, 273 So.2d 780 (Fla.App. 2d 1973).

The issue concerns the modification of an award of alimony by termination at a set date without a finding of a change of circumstances by the trial court and its approval by the District Court of Appeal. The trial court in an order dated May 1, 1973 terminated the alimony as of May 1, 1974. The opinion of the District Court of Appeal extended the termination date to May 1, 1976, and acknowledged there was no change of circumstances.

While the petition for certiorari was pending in this Court, a motion to relinquish jurisdiction was made by the respondent requesting that we allow him to petition for modification of the alimony award based upon changed circumstances occurring subsequent to the order of modification on review before this Court. We granted the motion.

The trial court found that there were in fact changed circumstances subsequent to the date' of the prior order and entered a modified order so stating April 29, 1975. The District Court opinion was in conflict because it acknowledged there were no changed circumstances in the record justifying the modification in the first order. The factual circumstances between the parties now have changed, and the practical effect of the first order which is before this Court for review is moot.

The opinion of the District Court of Appeal is quashed to the extent that it affirms modification of an alimony award without a showing of changed circumstances. We express no opinion on the modified order of the trial court dated April 29, 1975, which was consolidated here with the original certiorari proceeding. We transfer it without prejudice to the District Court of Appeal.

It is so ordered.

ROBERTS, ADKINS, BOYD, ENGLAND, SUNDBERG and HATCHETT, JT., concur.