Opinion
No. G-312.
July 22, 1965.
Appeal from the Circuit Court for Duval County, W.A. Stanly, J.
Dennis R. Dingle, Jacksonville, for appellant.
Smith, Axtell, Howell Rumph, Jacksonville, for appellee.
This case is before the court on appellee's motion to dismiss the appeal taken by appellant from a final decree of divorce. The decree appealed ordered and adjudged that appellee pay to appellant the sum of $325.00 per month as alimony and $125.00 per month for the support and maintenance of their minor child of whom appellant was awarded custody. Appellant was also awarded the exclusive right to the use and occupancy of the home theretofore occupied by the parties, together with all furniture, furnishings, equipment and appliances situated therein, without the payment of any rent to appellee for his interest therein. Subsequent to the entry of the final decree, appellee has fully complied with the provisions contained therein and the obligations imposed thereby. He has paid to and appellant has accepted the award of alimony and support money granted her by the final decree and has continued to enjoy the exclusive use and occupancy of the family home and furnishings without payment of rent to appellee. Appellant, after accepting the fruits of the award made her by the final decree, has appealed questioning the correctness of such decree, but has not attempted in any manner to comply with the provisions of Florida Appellate Rule 3.8(b), 31 F.S.A. which reads as follows:
"If an appeal is taken from an order or decree awarding separate maintenance, support or alimony, the lower court may in its discretion, upon proper notice and hearing, order the payment of separate maintenance, support or alimony pending such appeal in such amounts and under such terms and conditions as may be just and equitable. Such order shall be subject to supersedeas only by the appellate court upon motion and for good cause and then only upon such conditions as shall be imposed by such appellate court, including the payment of attorneys' fees. The acceptance of the benefits thereof shall be without prejudice to the rights of the beneficiary to raise as issues on the appeal the correctness of any of the terms or provisions of the original order or decree appealed."
Appellant, by her action in accepting the benefits granted her by the final decree without availing herself of the protection afforded by the above-quoted rule of appellate procedure is estopped to maintain this appeal which questions the correctness of the decree awarding the divorce, alimony and child support. The motion to dismiss the appeal must be granted under the unbroken line of decisions requiring such action as set forth in Brooks v. Brooks (Fla. 1958), 100 So.2d 145; Carter v. Carter (Fla. App. 1962), 141 So.2d 591; Claus v. Claus (Fla.App. 1964), 163 So.2d 26; Fort v. Fort (Fla.App. 1964), 167 So.2d 315.
CARROLL, DONALD K., J., concurs.
STURGIS, J., dissents.
The motion forming the subject of the majority opinion is verified by an affidavit of the movant reflecting compliance with a final decree which dissolved the marriage and awarded permanent alimony and child support money to appellant payable in monthly installments. In a dissent in Fort v. Fort, 167 So.2d 315 (Fla.App. 1964), I discussed at length my views concerning the inapplicability of Florida Appellate Rule 3.8(b) to an appeal from a postdecretal order reducing an award of permanent alimony payable in periodic installments. The principles which I sought to express in that dissent apply with equal force to an award of permanent alimony payable in monthly installments and not challenged by the party amerced, which is the state of this appeal.
A further and illuminative discussion of the general subject of estoppel as invoked by the majority herein is found in the dissenting opinion of Barnes, J., to the Florida Supreme Court's discharge of the writ of certiorari issued by it in the unreported case of Brackin v. Brackin, Case No. 33,912, opinion filed July 28, 1965. Reference to the decision of this court in Brackin v. Brackin, 167 So.2d 604 (Fla.App. 1964), forming the subject of said writ, will disclose that said case involved the acceptance of payments made in accordance with the decree on account of a lump sum award of alimony. In my opinion the lump sum feature of the alimony awarded in Brooks v. Brooks, 100 So.2d 145 (Fla. 1958), is the basis upon which Mr. Justice Drew wrote the concurring opinion in Brooks. It is also pertinent to note that our decision in Brackin v. Brackin was "limited strictly to a situation where the appellant wife seeks reversal of a final decree which awards to her a lump sum for alimony and pending the appeal accepts the same."
As stated by the annotator in 169 A.L.R. 1030:
"The question whether an appellant has lost his right of appeal by accepting satisfaction of some part of a judgment or decree, or some item entering into it, depends upon whether that part or item may be adversely affected by any disposition of the case made on the appeal. Unless the other party has conceded liability for it, it will be so affected unless it is separable. `If a party to a judgment accepts payment or satisfaction of a part thereof which is favorable to him, and that part is of such a character that the part adverse to him cannot be reversed without affecting the part which is in his favor and requiring the reversal of that part also, the party so accepting the fruits of a part of the judgment in his favor is estopped from prosecuting an appeal from those parts which are against him.' Walnut Irrig. Dist. v. Burke (1910) 158 Cal. 165, 110 P. 517."
In the instant case, the acceptance by appellant of the specified payments of alimony and support money, under a decree as to which no error is asserted by appellee, cannot adversely affect any rights of the appellee upon any disposition of the case that may be made on the appeal, and I respectfully suggest that appellant's failure to invoke the relief afforded under Florida Appellate Rule 3.8(b) is obviously innocuous and should not operate to bar her right to appeal.
I therefore dissent.