Legal Specs

Recent Family Law Decision

01 Feb 2008

Revestment

The court had authority to modify the distribution of proceeds under the doctrine of revestment; under this doctrine, litigants may revest a court which has general jurisdiction over the matter, with both personal and subject matter jurisdiction, over the particular cause after the 30 day period following final judgment during which post-judgment motions must ordinarily be filed. In order for the revestment rule to apply, the parties must actively participate without objection in proceedings which are inconsistent with the merits of the prior judgment.

Review Abuse of Discretion

Defendant failed to demonstrate that the court abused its discretion in modifying a divorce decree.

Discretion of Court

The modification of child support provisions rests in the sound discretion of the trial court and will not be interfered with in the absence of an abuse of that discretion or unless a manifest injustice has been done. Although the modification or termination of alimony provisions in a divorce decree rests in the sound judicial discretion of the trial court, such a modification or termination must not be made arbitrarily or capriciously, but rather must be equitable and must be based upon a showing of a substantial change in the circumstances of the parties. Modification of a divorce decree rests in the sound discretion of the trial court, and courts of review will not disturb its finding unless the evidence clearly so requires. Whether the alimony to be paid by the defendant should have been terminated rested in the sound discretion of the court. Alteration of an order respecting support payments rests in the sound judicial discretion of the trial court, and unless the record shows and abuse of that discretion such an order will generally not be disturbed on review. The modification of provisions for the payment of alimony and child support rests in the sound discretion of the court and a reviewing court will not interfere with the exercise of such discretion in the absence of its abuse.

Insufficient Record

Where there was no indication of the court's judgment concerning the evidence on husband's allegedly greater income, wife's allegedly greater need, and the causes underlying such but the record merely consisted of the testimony of the parties, the argument of their counsel, and general "findings" in the order, then the appellate court was unable to assess the validity of the circuit court's decision and remanded the case to give the circuit court the opportunity to indicate on the record its rational underlying the exercise of discretion which it undertook.

New Hearing Required

Where the statements of the circuit court reflected that it did not give appropriate significance to the evidence and was laboring under the misconception of the law applicable to a petition for modification of support and attorney's fees, that misconception deprived the wife of fair hearing on her petition and entitled wife to new hearing.


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