Palm Beach Florida Divorce & Family Law Blog
In a modification of alimony proceeding, a trial court can temporarily modify an alimony award while the award is being appealed. It cannot alter the actual alimony award during the pendency of the appeal. In Horowitz v. Horowitz the Florida Court of Appeal recently stated: “[T]he trial court may conduct a hearing on the modification petition and issue orders consistent with Rule 9.600(c). It may not, however, enter a final judgment disposing of the modification petition until the appeal is final and our mandate issues. Thompson v. Stewart, 569 So. 2d 1372 (Fla. 4th DCA 1990); Campbell v. Campbell, 436 So. 2d 374 (Fla. 5th DCA 1983); Kalmutz v. Kalmutz, 299 So. 2d 30 (Fla. 4thDCA 1974)…We begin with the principle stated by this court in Kalmutz: [W]hen the jurisdiction of the appellate court attaches it is exclusive as to the subject covered by the appeal; so that modification of an order under appeal would be beyond the jurisdiction of the trial court from the very innate nature of the appellate jurisdiction and from the very practical viewpoint that there is no order to be modified until the appellate court determines what the order actually is. Kalmutz, 299 So. 2d at 32 n.l…
Citing Rule 9.600(c), we have noted “[w]hen the trial court temporarily alters the provisions in the final judgment for the purpose of protecting the welfare or rights of a party pending appeal, the terms of the judgment are not affected.” Goodman v. Goodman, 664 So. 2d 975, 975 (Fla.4thDCA 1995) (emphasis added)…To the contrary, the subsequent modification proceeding is neutral and indifferent as to the legal correctness of the prior adjudication and correctly proceeds on the theory that, whether or not the prior adjudication was correct on the facts then found and adjudicated, those facts have now changed and the present factual circumstances differ so substantially and materially from those underlying the prior adjudication that a different level of support is warranted as to the future…As outlined, the trial court can consider the former husband’s petition and, if appropriate, fashion a temporary order which may be revisited or reduced to permanent rulings once the pending direct appeal has been disposed of by this court. Horowitz v. Horowitz, 39 Fla. L. Weekly D987, 987-988 (Fla. 4th DCA May 14, 2014)
To speak with a divorce lawyer in Palm Beach, Florida, contact Matthew Lane & Associates, P.A. at (561) 651-7273.