Summary
granting prohibition relief and quashing the order setting the modification petition for trial while the final judgment was on appeal in the Florida Supreme Court
Summary of this case from Horowitz v. HorowitzOpinion
No. 90-1891.
November 21, 1990.
Petition from the Circuit Court, Palm Beach County, James R. Stewart, Jr., J.
Ronald Sales and Jane Kreusler-Walsh of Klein and Walsh, P.A., West Palm Beach, for petitioner.
Paul F. King of Edna L. Caruso, P.A., West Palm Beach, and Esler Kirschbaum, P.A., Fort Lauderdale, for respondent.
We grant the writ of prohibition and quash the trial court's order setting the supplemental petition for modification for trial. The trial court does not have jurisdiction to modify an order under appeal. Campbell v. Campbell, 436 So.2d 374 (Fla. 5th DCA 1983), rev. dismissed, 453 So.2d 1364 (Fla. 1984); Buckley v. Buckley, 343 So.2d 890 (Fla. 4th DCA 1977), appeal dismissed, 362 So.2d 1050 (Fla. 1978); Kalmutz v. Kalmutz, 299 So.2d 30 (Fla. 4th DCA 1974). The underlying final judgment of dissolution is now pending in the Supreme Court on a certified question from this court. The pendency of the case in the Supreme Court deprives the trial court of jurisdiction to modify the judgment. See State v. Meneses, 392 So.2d 905 (Fla. 1981). The husband may of course request relinquishment of jurisdiction from the court having jurisdiction if he deems it advisable, or he may petition the trial court for temporary relief pending appeal in accordance with Florida Rule of Appellate Procedure 9.600(c). However, it is clear from the petition that he seeks elimination of permanent alimony and lump sum alimony from the final judgment, which is not relief "pending appeal" as contemplated within the appellate rule.
ANSTEAD, GUNTHER and WARNER, JJ., concur.