COHEN v. COHEN, Fla., Judgment, Law, casemine.com

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Attorney(S)

Ross Rinehardt, for petitioner. Silver, Kaplan Dietz, for respondent.

Judges

Rivers H Buford

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Smart Summary

Factual and Procedural Background

The petitioner sought enforcement in Florida chancery of an alimony payment decree originally entered by the Circuit Court for Wayne County, Michigan, dated June 3, 1938. At the time of filing, the petitioner alleged an accumulation of unpaid installments totaling $4,000. The defendant answered, incorporating a motion to dismiss, and challenged the finality and enforceability of the Michigan decree under Florida law. The Florida Circuit Court for Dade County denied the motion to dismiss and appointed a Special Master to take testimony and report findings. The petitioner then filed a petition for certiorari to review this order.

Legal Issues Presented

Whether the Michigan divorce decree providing for alimony is a final decree or judgment enforceable under the Full Faith and Credit Clause of the United States Constitution.
Whether the Michigan courts have statutory authority to alter or modify the alimony decree or its installments after entry, thus affecting its finality and enforceability in Florida.
Whether the Florida court properly denied the motion to dismiss and appointed a Special Master to gather testimony pertinent to these questions.

Arguments of the Parties

Petitioner’s Arguments

The Michigan decree is a final judgment for alimony payments, including accumulated unpaid installments, and should be enforced by the Florida chancery court under the Full Faith and Credit Clause.

Respondent’s Arguments

The Michigan decree is not final regarding the money provisions because Michigan courts have statutory authority to alter alimony decrees and payment terms after entry.
Therefore, the decree is unenforceable in Florida as it does not constitute a final judgment.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Boyer v. Andrews, 142 Fla. 462, 196 So. 825	Presumption that a foreign state’s final decree is final unless proven otherwise regarding authority to alter alimony provisions.	The court applied the presumption that Michigan courts lack authority to modify past due installments unless proven otherwise.
Lechner v. Lechner, 154 Fla. 114, 16 So.2d 816	Finality of foreign judgments and their enforceability under the Full Faith and Credit Clause.	Used to explain that if Michigan courts have authority to alter alimony judgments, then the decree is not final and not enforceable in Florida.
McDuffie v. McDuffie, 155 Fla. 63, 19 So.2d 511	Enforcement of final foreign judgments under the Full Faith and Credit Clause.	Supports the proposition that if the foreign decree is final, Florida courts must enforce it.

Court's Reasoning and Analysis

The court analyzed whether the Michigan decree for alimony payments constituted a final judgment enforceable under the Full Faith and Credit Clause. The defendant alleged Michigan courts retained statutory authority to modify alimony decrees, which, if true, would render the decree non-final and unenforceable in Florida. The bill of complaint did not disclose whether Michigan law authorized such modifications. The court invoked the presumption that foreign judgments are final unless proven otherwise, citing Boyer v. Andrews. The defendant’s answer sought to rebut this presumption but failed to provide proof of Michigan law. Consequently, the court determined that factual inquiry was necessary to resolve whether the Michigan decree was final or subject to alteration. To facilitate this, the court upheld the appointment of a Special Master to take testimony and report findings, enabling the court to decide if full faith and credit must be accorded to the Michigan decree.

Holding and Implications

The court DENIED the petition for certiorari and remanded the case for further proceedings consistent with the opinion.

This decision affirms the procedural propriety of denying the motion to dismiss and appointing a Special Master to develop the factual record necessary to determine the finality and enforceability of the foreign alimony decree. No new precedent was established; the ruling applies established principles regarding the finality of foreign judgments and the Full Faith and Credit Clause. The direct effect is that further factual development will guide whether the Florida court may enforce the Michigan alimony decree.

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JACOB COHEN v. MAMIE COHEN

BUFORD, J.:

On petition for certiorari under Rule 34 we review order denying motion to dismiss bill of complaint and appointing a Special Master for the purpose of taking testimony and reporting the same back to the court with his findings and recommendations.

The motion to dismiss was incorporated in the answer.

The bill of complaint sought a decree in chancery in Florida enforcing the payment of alimony decreed to the plaintiff in a divorce action in the Circuit Court for the County of Wayne, in the State of Michigan on the 3rd day of June, 1938, and under which plaintiff alleges that there was due at the time of the filing of the bill an accumulation of unpaid instalments in the sum of $4,000.00.

The answer, among other things, avers:

"Further answering the bill of complaint, the defendant denies that the final decree of divorce referred to herein is a final decree or judgment of the State of Michigan insofar as the money provisions therein contained are concerned, but the defendant says that under the laws of the State of Michigan the courts of said state are authorized and empowered to alter decrees for alimony from time to time respecting the amount, and also respecting the appropriation and payment, and that said courts may make any decree respecting any of said matters which such court might have made in the original suit and by reason thereof said purported final decree entered by the Circuit Court for Wayne County in the State of Michigan is unenforceable in the State of Florida."

The bill of complaint does not disclose whether or not under the laws of Michigan the courts of said state are authorized and empowered to alter decrees for alimony from time to time respecting amount, nor whether or not under the laws of the State of Michigan the Circuit Court having jurisdiction of the cause in Michigan can modify or annul a part of the original decree, although the defendant was in default in the payment of the alimony required by the original decree. We are committed to the rule that unless the contrary be shown we will indulge the presumption that there is no law in the state involved giving a court of that state rendering the final decree authority to alter or change that decree as to past due instalments. See Boyer v. Andrews, 142 Fla. 462, 196 So. 825.

By his answer defendant seeks to overcome the presumption. This presumption cannot be overcome except by stipulation between the parties or by proof of the law of Michigan in this regard. If it be shown that the courts of Michigan have the power and authority provided by statute to alter, amend or nullify not only the alimony judgment previously entered but also each weekly maturing instalment of alimony, then the judgment is not final and within the full faith and credit clause of the Federal Constitution and will not constitute a legal basis to support the suit in Chancery in this state. See Lechner v. Lechner, 154 Fla. 114, 16 So.2d 816 and cases there cited. On the other hand, if the court having jurisdiction of the cause in Michigan is without power or authority to alter, amend or nullify the decree here involved, then the Chancery Court in Florida may acting under the full faith and credit clause of the Federal Constitution, enforce the payment because it is then a final judgment. Se McDuffie v. McDuffie, 155 Fla. 63, 19 So. (2) 511 and cases there cited.

So it is that under the state of the pleadings it is necessary for the court to determine from testimony to be taken whether or not the decree relied upon as the basis for the suit here was or was not a final decree or final judgment which will require this Court to accord to it full faith and credit under the Federal Constitution.

For the reasons stated, certiorari is denied and the cause remanded for further proceedings.

So ordered.

THOMAS, C. J., and CHAPMAN, J., concurs.

CHILLINGWORTH, Associate Justice, concurs specially.

CHILLINGWORTH, Associate Justice, concurring specially:

In the brief, counsel for petitioner, in referring to the hearing in the trial court, stated:

"The hearing, for want of a better word, was of short duration. The Chancellor summarily advised counsel that the State of Florida protected its women and, without being granted an opportunity to be heard, denied defendant's motion to dismiss, and without application referred the case to a special master for the taking of testimony and declared that he would limit the time for the taking of testimony. While the Michigan decree was entered almost nine years ago and from the pleadings no reason for delay in prosecution of the case was advanced, the Chancellor suggested that, if plaintiff's counsel desired, he would limit the time for taking testimony to forty-eight hours. At the conclusion of this session, he entered his order reflecting his thoughts."

Counsel for petitioner, in discussing the question of laches, also made the following statement in the brief:

"As a matter of truth and fact and dehors the record, she knew at all times the whereabouts of the defendant."

The record in this case consists of a bill of complaint, an answer incorporating the motion to dismiss, and an order of the court. The record is wholly devoid of any matters of fact beyond those contained in the pleadings before the court, and affords no basis for the statements made by counsel.

When one appeals from the judgment or decree of a trial judge, he impliedly represents that the record on appeal does reflect harmful error of the trial judge. His client, as well as the appellate court, has a right to consider an appeal such a representation. A record of the proceedings below is presented here to establish such error, and for no other purpose.

The record on appeal is made pursuant to the direction of appellant (as well as appellee), who had the privilege of establishing the proceedings in the lower court by the Judge's certificate, the clerk's certificate, and, if these fail, there are other means. See 59.15 and 59.16, F.S.A.

The law intends that proceedings before the trial judge might be reviewed here, as they occurred below. When counsel, in oral argument or in brief, attempt to fortify the record on appeal by matters dehors the record, it has a great tendency to impress the appellate court that the appeal was improvidently taken, and that counsel is unwilling to rely upon the record to establish error. Without further reference to the impropriety of such action, it is evidence of weakness of position, and has a tendency to obscure the presentation of matters which might have merit.

THOMAS, C. J., BUFORD and CHAPMAN, JJ., concur.

COHEN v. COHEN