Opinion
No. 70-539.
February 2, 1971. Rehearing Denied March 12, 1971.
Appeal from the Circuit Court for Dade County, Francis J. Christie, J.
Milton E. Grusmark, and Natalie Baskin, Miami, for appellant.
Carl A. Spatz, Miami, for appellee.
Before PEARSON, C.J., and CHARLES CARROLL and SWANN, JJ.
The husband, Carmen Allen Ramona, appeals from an order dated April 30, 1970 which modified a prior final decree of divorce.
The post decretal order increased the alimony and child support payments due to the wife from the husband; required that they be paid for certain retroactive periods and awarded fees to the wife's attorney.
On appeal, the husband complains of a lack of "competent material evidence to prove a substantial change" in the circumstances of the wife sufficient to sustain an award increasing the child support and alimony payments.
We have been provided with an insufficient record on appeal to reverse on this point. Cf. Insured Lloyds v. James, Fla.App. 1967, 200 So.2d 595 and Coggan v. Coggan, Fla.App. 1961, 130 So.2d 131.
The husband challenges the retroactive requirements of the order as it relates to child support and alimony payments.
In one part the order required the husband to make the increased payments of child support and alimony beginning March 1, 1970. The record is unclear as to whether the petition for modification was filed on March 1, 1970 or March 3, 1969. We affirm the retroactive requirements of the order as to the correct date upon which the petition was filed and remand the cause to the trial court for a determination of that date. Alterman v. Alterman, Fla.App. 1968, 208 So.2d 472.
Another part of the order required the husband to pay retroactive alimony and child support from October 11, 1968 to March 1, 1970. Under Alterman, supra, we hold this part of the order to be erroneous and reverse.
The husband challenged the award of attorneys' fees to the attorney for the wife.
The attorneys' fees were awarded for services rendered to the wife on her petition for modification of the final decree by increasing the alimony and child support payments. Generally, a wife is entitled to attorneys' fees where proceedings are brought to "enforce" a decree for child support or alimony but not where the proceedings are brought by her for modification of such a decree. 10 Fla.Jur. Divorce, Etc. §§ 148 and 149.
The order is affirmed as to the increase in alimony and child support payments and as to the requirement that those payments be made retroactive until the date upon which the petition for modification was filed; it is remanded to the trial court for a determination and adjudication as to that date; it is reversed as to the requirements for retroactive payments from October 11, 1968 to March 1, 1970 and as to attorneys' fees.
It is so ordered.