Anderson v. Anderson
| Decision Date | 25 May 1976 |
| Docket Number | No. 75-1095,75-1095 |
| Citation | 333 So.2d 484 |
| Parties | Herbert C. ANDERSON, Appellant, v. Angela M. ANDERSON, Appellee. |
| Court | Florida District Court of Appeals |
Robert B. Kane, Tallahassee, for appellant.
Milledge, Horn & Hermelee and Martin D. Berg, Miami, for appellee.
Before BARKDULL, C. J., and PEARSON, J., and CHARLES CARROLL (Ret.), Associate Judge.
This is an appeal by an ex-husband from an order denying his second petition to be relieved of further obligation to pay alimony.
The case presents a question of whether a divorced husband should be required to continue to pay alimony to a wife who, in the years subsequent to divorce, has become self supporting.
These parties were divorced by a judgment entered by the Circuit Court of Dade County on January 10, 1962. Therein the husband was ordered to pay alimony of $400 per month, and $600 per month for support of the three minor children of the marriage, whose custody was awarded to the wife. On an appeal by the wife, a holding in the judgment that the husband was the sole owner of a 1959 purchase money mortgage of $71,000.00 was reversed, establishing that the wife owned a one-half interest therein. 1
On September 22, 1964, the husband filed a petition for modification of the judgment, seeking to be relieved of the order for payment of alimony, and a reduction in the child support. The wife filed a petition for increase of child support. The trial court denied both petitions. The husband appealed, and the wife cross assigned as error the denial of her petition. This court affirmed. 2 The husband petitioned the Supreme Court for review on certiorari. His petition was dismissed for want of conflict jurisdiction. 3 Justice Roberts filed a dissenting opinion, which recited the showing by the husband with respect to the capability of the wife for self support which she had chosen not to utilize. Justice Roberts expressed the view that the district court's affirmance was in conflict with numerous cases cited, because, on the facts, the denial of relief to the husband was contrary to the law.
Justice Roberts then proceeded to state the law applicable to the case as he understood it to be established. Although that statement of the law was made in a dissenting opinion, it was not made in dissent of any contrary holding as to those principles of law by the Court majority, which had not dealt with the merits. The dissent was from the majority holding that there was no conflict jurisdiction. For that reason, and due to the importance of the legal principles there stated, and their applicability to the facts disclosed on the subsequent petition of the husband for relief from the alimony, the denial of which was the basis of the present appeal, we adopt that statement of the law in Justice Roberts' opinion, which is as follows (194 So.2d at 908--909):
'These decisions all stand for the proposition that the marriage status, once achieved by the wife, does not carry with it the right forever after to be supported by her former husband in veritable ease and comfort, regardless of her capacities for self support. The horse and buggy era, when the husband's vow to take care of his wife "till death do us part' was accepted by both parties as a sacred promise and an essential part of the marriage contract--required, as well, by the mores of the society of that era and the necessity of insuring that the divorced wife could not become a public charge--is a thing of the past. Today the high incidence of divorce in our country, is, regrettably, a reality of life which we no longer approach in the manner of the camel threatened by an oncoming sand storm. We now educate our daughters, as well as our sons, to enable them to take their place in the business community--not only before and during marriage but also after the break-up of the marriage, should it occur. And we are coming more and more to recognize that in most cases the break-up of the marriage is not, as it cannot be, solely the fault of the party who is found to be technically at fault--that both parties must bear some of the brunt of the failure. It should not be considered a victory for one spouse and a reverse for the other, but a defeat for both.
'It is therefore the settled law of this jurisdiction that the fact that the divorced wife is able to be employed and has the ability to earn a living is a relevant material factor in determining her 'need' for alimony, regardless of whether she was or was not a wage earner during the marriage or at the time of the divorce. It is well settled, and has for a long time been so, that the fact the wife has a separate estate--whether acquired before or during marriage, from her own efforts or those of her husband--is a relevant material factor in determining her 'need' for alimony. Chaires v. Chaires, 1864, 10 Fla. 308, 315; 10 Fla.Jur., Divorce and Annulment, Sec. 166; Heller v. Heller, supra, (Fla.App.)., 151 So.2d 35; Kahn v. Kahn, supra., (Fla.)., 78 So.2d 367. The fact that there were minor children involved in the case Sub judice (aged 15, 13 and 8 at the time of the hearing on the petitions for modification in October of 1964, all in good health and attending local schools) is relevant to the question of whether the wife should be required to seek part-time, as distinguished from full-time, employment, but does not relieve her of her responsibility to contribute to her own support, if she has wage-earning capacity. See Raley v. Raley, supra, (Fla)., 50 So.2d 870.
By a petition filed on September 25, 1974, and amended on March 4, 1975, the husband again asked the court to relieve him of further obligation to pay alimony. Therein it was alleged the children had attained majority, and that he had supported and educated them, with the youngest now in college at his expense; that the children were not living with the wife, and it was no longer necessary for her to supply accommodations for them. It was further alleged that 'the wife has acquired a substantial earning capacity; she has a good job with a secure future'.
The wife filed a response, averring that the husband was seeking to modify a post-judgment agreement of the parties dated February 28, 1968, which contained a provision that it would not be subject to modification, 4 and averred that if such agreement was modifiable, her alimony could be modified only 'if there has been substantial changes in the financial position of either or both parties'. The wife's response listed the incomes of the parties for 1971-1973, as follows: 1971, husband $36,094.00, wife, $16,306.00; 1972, husband $52,296.00, wife, $18,585.00; 1973, husband $54,734.00, wife, $15,562.00. It appears from the record that the husband has assets and income in an amount which is ample to enable him to pay the alimony. He so admitted.
After an evidentiary hearing, the trial court denied the husband's petition for...
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