Opinion
No. 80-143.
April 8, 1980.
Appeal from the Circuit Court, Dade County, Ralph B. Ferguson, Jr., J.
Krongold Bass and Paul H. Bass, Miami, for appellant.
No appearance, for appellee.
Before HUBBART and NESBITT, JJ., and CHARLES A. CARROLL (Ret.), Associate Judge.
Following a judgment of dissolution of marriage, on motion of the wife, for failure of the husband to make certain payments which on final judgment he had been ordered to pay for benefit of the wife, the court entered a judgment against the husband for $5,000.00 for which execution was directed to be issued.
Thereafter, predicated upon her affidavit that said judgment was outstanding and unsatisfied, and a filed Sheriff's affidavit showing an outstanding, unsatisfied execution on the judgment, the wife moved (as provided for in Section 56.29, Florida Statutes (1977)) for an order to require the husband, as the defendant in execution, to appear before the court or a master appointed by the court to be examined concerning his property. The court, by an order which did not assign reasons therefor, denied the wife's motion.
§ 56.29, Fla. Stat. (1977), provides that upon such a showing, on motion of the plaintiff, the court shall so require of the defendant in execution, at a time and place to be specified by the order, with provision for service of the order (as for a summons or by service on defendant or his attorney as provided for service of a pleading) a reasonable time before the date of examination; with further provisions relating to said examination.
On consideration of this appeal by the wife therefrom, we hold the court was in error in denying said motion. The plaintiff wife had a clear legal right to the relief sought, as mandated by the cited statute. The order appealed from is reversed, and the cause is remanded for further proceedings.