Cooper v. Cooper, 406 So. 2d 1223 (Fla. 4th DCA 1981). · Go Syfert
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Cooper v. Cooper, 406 So. 2d 1223 (Fla. 4th DCA 1981). Cases Citing This Book View Copy Cite
29 citation events (9 in the last 25 years) across 2 distinct courts.
Strongest positive: Charles Ruffenach v. Deutsche Bank National Trust Company, as Trustee for Ameriquest Mortgage Securities Inc., Asset- Backed Pass-Through Certificates Series 2005-R8, Raymond Lozano, Alili Rihkrand, Islebrook at Meadow Woods Homeowners' Association, Inc., Orange County, and Cit Financial, Inc. (fladistctapp, 2026-03-20)
Treatment trajectory · 1981 → 2026 · click a year to view as-of
1981 2003 2026
Top citers, strongest first. 12 distinct citers.
discussed Cited as authority (rule) Charles Ruffenach v. Deutsche Bank National Trust Company, as Trustee for Ameriquest Mortgage Securities Inc., Asset- Backed Pass-Through Certificates Series 2005-R8, Raymond Lozano, Alili Rihkrand, Islebrook at Meadow Woods Homeowners' Association, Inc., Orange County, and Cit Financial, Inc.
Fla. Dist. Ct. App. · 2026 · confidence medium
Comm’rs of Lee Cnty., 656 So. 2d 591 , 591–92 (Fla. 2d DCA 1995); Wells Fargo Bank, N.A. v. Meininger, 360 So. 3d 464 , 465 (Fla. 2d DCA 2023); Cooper v. Cooper, 406 So. 2d 1223, 1224 (Fla. 4th DCA 1981); Tanner v. Tanner, 391 So. 2d 305, 305 (Fla. 4th DCA 1980); Brake v. Murphy, 736 So. 2d 745, 747 (Fla. 3d DCA 1999); Seitlin & Co. v. Phoenix Ins.
discussed Cited as authority (rule) Austin v. Austin
Fla. Dist. Ct. App. · 2013 · confidence medium
Accord Mondello v. Torres, 47 So.3d 389, 397 (Fla. 4th DCA 2010) (“[A]s a general rule, a violation of due process occurs when a court determines matters not noticed for hearing and not the subject of appropriate pleadings.”); Mizrahi v. Mizrahi, 867 So.2d 1211, 1213 (Fla. 3d DCA 2004) (“Due process protections prevent a trial court from deciding matters not noticed for hearing and not the subject of appropriate pleadings.”); Cooper v. Cooper, 406 So.2d 1223, 1224 (Fla. 4th DCA 1981) (holding that a judgment based outside the pleadings cannot stand).
discussed Cited as authority (rule) McClain v. McClain
Fla. Dist. Ct. App. · 2013 · confidence medium
“A court is not at liberty to award alimony where the benefitting spouse has failed to seek such relief in the pleadings.” Hines v. Hines, 494 So.2d 297, 297 (Fla. 3d DCA 1986); see also Palumbo v. Palumbo, 576 So.2d 799, 800 (Fla. 1st DCA 1991); Massey v. Massey, 478 So.2d 478, 479 (Fla. 2d DCA 1985); Cooper v. Cooper, 406 So.2d 1223, 1224 (Fla. 4th DCA 1981).
cited Cited as authority (rule) Sabates v. State of Florida Department of Health
Fla. Dist. Ct. App. · 2012 · confidence medium
Co., 650 So.2d 624, 626-627 (Fla. 3d DCA 1994); Ashourian v. Ashourian, 519 So.2d 35, 36 (Fla. 1st DCA 1987); and Cooper v. Cooper, 406 So.2d 1223, 1224 (Fla. 4th DCA 1981)).
cited Cited as authority (rule) Georges v. Department of Health
Fla. Dist. Ct. App. · 2011 · confidence medium
Co., 650 So.2d 624, 626-627 (Fla. 3d DCA 1994); Ashourian v. Ashourian, 519 So.2d 35, 36 (Fla. 1st DCA 1987); Cooper v. Cooper, 406 So.2d 1223, 1224 (Fla. 4th DCA 1981).
discussed Cited as authority (rule) Snow v. Harlan Bakeries, Inc.
Fla. Dist. Ct. App. · 2006 · confidence medium
"At a minimum, an award for attorney's fees `requires a predicate of substantial competent evidence in the form of testimony by the attorney performing services and by an expert as to the value of those services.'" Pridgen v. Agoado, 901 So.2d 961, 962 (Fla. 2d DCA 2005) (quoting Cooper v. Cooper, 406 So.2d 1223, 1224 (Fla. 4th DCA 1981)).
discussed Cited as authority (rule) Pridgen v. Agoado
Fla. Dist. Ct. App. · 2005 · confidence medium
At a minimum, an award for attorney's fees "requires a predicate of substantial competent evidence in the form of testimony by the attorney performing services and by an expert as to the value of those services." Cooper v. Cooper, 406 So.2d 1223, 1224 (Fla. 4th DCA 1981).
discussed Cited as authority (rule) Todaro v. Todaro
Fla. Dist. Ct. App. · 1997 · confidence medium
Under Florida law, a trial court is without jurisdiction to "hear and determine matters which are not the subject of appropriate pleadings and notice." Defreitas v. Defreitas, 398 So.2d 991, 992 (Fla. 4th DCA 1981); see Johnson v. Johnson, 546 So.2d 97, 98 (Fla. 4th DCA 1989); Cooper v. Cooper, 406 So.2d 1223, 1224 (Fla. 4th DCA 1981).
cited Cited "see" Sandstrom v. Sandstrom
Fla. Dist. Ct. App. · 1993 · signal: see · confidence high
See Cooper v. Cooper, 406 So.2d 1223 (Fla. 4th DCA 1981) (a judgment based outside the pleadings cannot stand).
cited Cited "see" Alternative Dev. v. St. Lucie Club & Apt.
Fla. Dist. Ct. App. · 1992 · signal: see · confidence high
See Cooper v. Cooper, 406 So.2d 1223 (Fla. 4th DCA 1981).
cited Cited "see" Massey v. Massey
Fla. Dist. Ct. App. · 1985 · signal: see · confidence high
See Cooper v. Cooper, 406 So.2d 1223 (Fla. 4th DCA 1981); James v. James, 374 So.2d 1085 (Fla. 5th DCA 1979).
cited Cited "see, e.g." Wallace v. Wallace
Fla. Dist. Ct. App. · 1992 · signal: see also · confidence low
Gleason v. Gleason, 453 So.2d 941 (Fla. 4th DCA 1984); see also Cooper v. Cooper, 406 So.2d 1223 (Fla. 4th DCA 1981).
Willie Lee COOPER, Sr., Appellant,
v.
Mae France COOPER, Appellee.
81-123.
District Court of Appeal of Florida, Fourth District.
Dec 2, 1981.
406 So. 2d 1223
Per Curiam.
Cited by 24 opinions  |  Published

Allen R. Bosworth of Legal Aid Service of Broward County, Inc., Fort Lauderdale, for appellant.

Irwin A. Berkowitz, P.A., Fort Lauderdale, for appellee.

PER CURIAM.

Appellant seeks reversal of those portions of a final judgment of dissolution whereby appellee was awarded permanent alimony and a reasonable attorney's fee.

He first argues that permanent alimony should not have been awarded because appellee's Answer and Counterpetition contain neither any allegation upon which an award of alimony could be made nor a prayer therefor. The record supports appellant's contention. Appellee's counsel first made reference to a claim for alimony during his opening statement:

[*1224] [W]e will request the Court award a lump sum alimony of the home to the wife.

In response to this claim appellant's counsel, during his opening statement, objected.

MR. BOSWORTH: I would just like to point out, counsel has not pled any basis for alimony, whatsoever; nor has he requested it in his prayer for relief, answer, or his counterclaim, any award of lump sum alimony.
MR. BERKOWITZ: I have, Your Honor.
MR. BOSWORTH: He has requested adjudication of property rights, not —
MR. BERKOWITZ: Well, paragraph seven, that the property is located as follows — the respondent asserts a certain equity in the real property. She has made all payments, maintenance and upkeep on the real property.
MR. BOSWORTH: When you are talking alimony, you are talking ability to pay and need. That's not alleged.
MR. BERKOWITZ: We have asked for the Court to award the respondent alimony in this action.
THE COURT: Where is it? I am looking at your counter-petition. I don't see any request of alimony.
MR. BERKOWITZ: Well, Your Honor, if the situation arises, I would make an ore tenus motion at the close of the evidence and amend my pleadings to conform with the evidence. However, at this point, I would just allege the special equity in the house.
MR. BOSWORTH: I would note a continuing objection at this point, then, to any evidence that is going to be coming in to show the need or ability to pay alimony. Obviously, we are going to have to investigate these issues, as far as child support is concerned; but when we are talking about alimony, I am not prepared to defend alimony. I would have taken depositions if I would have known alimony is being requested.
THE COURT: I will sustain the objection.

At the close of the evidence appellee's counsel made no motion to amend the pleadings to conform to the evidence. Notwithstanding the foregoing, the trial court awarded the wife $100 per month as permanent alimony.

To be sure, a judgment based upon a matter entirely outside the issues made by the pleadings cannot stand. Cortina v. Cortina, 98 So.2d 334 (Fla. 1957); Chandler v. Chandler, 330 So.2d 778 (Fla. 1st DCA 1976). This general rule was applied in James v. James, 374 So.2d 1085 (Fla. 5th DCA 1979), which is directly on point. There, the Fifth District Court of Appeal vacated that part of a final judgment of dissolution of marriage which awarded the wife permanent alimony where her petition for dissolution did not raise the issue of alimony. Accordingly, we vacate that portion of the final judgment which awarded appellee permanent alimony.

Appellant's second point is that there is no predicate in the record for the trial court's award of a reasonable attorney's fee in the sum of $250 to appellee's counsel. We agree.

The only testimony presented was that of appellee when examined by her counsel:

Q. Mrs. Cooper, you have agreed to pay me a reasonable attorney's fee, is that correct?
A. Right.
Q. Have you paid anything?
A. No.
Q. Can you pay me anything?
A. Not today, I can't.

An award of an attorney's fee requires a predicate of substantial competent evidence in the form of testimony by the attorney performing services and by an expert as to the value of those services, Cohen v. Cohen, 400 So.2d 463 (Fla. 4th DCA 1981). In the absence of such evidence, we vacate that part of the final judgment which awarded an attorney's fee to be paid by appellant.

The remainder of the final judgment is affirmed.

AFFIRMED IN PART; REVERSED IN PART.

DOWNEY and GLICKSTEIN, JJ., and PEARSON, DANIEL S., Associate Judge, concur.