Bingemann v. Bingemann, 89-197

• Decision Date: 13 September 1989
• Docket Number: No. 89-197,89-197
• Citation: 14 Fla. L. Weekly 2167,551 So.2d 1228
• Parties: 14 Fla. L. Weekly 2167 Pamela W. BINGEMANN, Appellant, v. David A. BINGEMANN, Appellee.
• Court: Florida District Court of Appeals

Page 1228

551 So.2d 1228

14 Fla. L. Weekly 2167

Pamela W. BINGEMANN, Appellant, v. David A. BINGEMANN, Appellee.

No. 89-197.

District Court of Appeal of Florida First District.

Sept. 13, 1989.

Rehearings Denied Dec. 1, 1989.

Elliot Zisser, and Nancy N. Nowlis, of Zisser, Robison, Spohrer & Wilner, P.A., Jacksonville, for appellant.

Samuel S. Jacobson, of Datz, Jacobson & Lembcke, P.A., Jacksonville, for appellee.

JOANOS, Judge.

The former wife, Pamela W. Bingemann, appeals orders of the trial court which modified provisions of the final judgment of dissolution and ruled on various motions for contempt. The issues presented for review are: (1) the imposition of conditions regarding payment of college expenses for the parties' son; (2) the reduction of the former husband's child support obligation; (3) the award of less than the full amount of child support arrearages claimed; and (4) the trial court's authority to enforce its 1984 modification order. We affirm in part and reverse in part.

The parties were divorced December 13, 1977. The provisions of the final judgment pertinent to this appeal state:

4. The husband shall pay for the support of the minor child, to wit: CHRISTOPHER DAVID BINGEMANN, now nine years old, the sum of Three Hundred and no/100 Dollars ($300.00) per month. Said child support payment to be made to wife and to commence on the 15 day of December, 1977, and to continue on the same day of each and every month thereafter until said minor child attains the age of twenty-one years unless said minor child decides not to, and, in fact, does not, attend a college or university for higher education. Upon this decision, said child support payments shall terminate at age eighteen and sooner if said minor child dies or becomes self-supporting.

. . . . .

7. Over and above support payment provided herein for the minor child of the parties, the husband and wife shall each pay one-half of the cost of tuition, room, board and books for the minor child to attend at least four years of higher education.

In a modification order filed February 3, 1984, the trial court found that the needs of the minor child had increased, as had the ability of the parents to meet those needs. In keeping with those findings, the final judgment was amended to provide that the father would pay child support in the amount of $565.00 per month, rather than $300.00 per month. In all other respects, the final judgment remained the same.

The mother filed several motions for contempt for the father's failure to pay child support, claiming child support arrearages of $2,825.00, $6,780.00 and $10,170.00; and college expense arrearage of $1,024.44. In addition, the mother filed requests for discovery of the father's personal finances.

On June 22, 1988, after seeking a protective order to bar the mother's discovery requests, the father filed a motion to modify the final judgment provisions with regard to child support and payment of college expenses, and a motion for contempt, alleging that commencing in January 1987 the mother had failed to pay one-half of the son's college expenses. The father's motion for modification alleged that the provisions in the final judgment for payment of child support while the parties' son attended college were predicated on the assumption that the mother would maintain a home for herself and the son during his college years, and that the son would reside with the mother for appreciable portions of the year. The motion further alleged that the mother was no longer maintaining a home for herself, and for some time had been cohabiting with an adult male.

Evidence adduced at the hearing on the contempt motions revealed that the father had paid no child support since December 1986. In addition, letters were introduced written by the father to the mother in August and September 1986, expressing his intention to continue to pay $565.00 per month to the mother, and to treat this payment as his share of their son's college and reasonable living expenses, rather than as child support.

The record reflects that the parties' son entered Auburn University in September 1986, shortly after his eighteenth birthday. The son's attendance at Auburn was with the father's express consent. The record further reflects that the father became dissatisfied with his son's academic performance. In addition, the record demonstrates that the parties were unable to communicate effectively with each other with regard to their respective expectations and goals for their son's college career.

On August 17, 1988, the trial court issued an order on the motions for contempt and modification, finding that (1) since his enrollment at Auburn in August 1986, the parties' son had lived largely at Auburn; (2) the father had paid $13,758.00 toward his son's expenses, and the mother had paid $13,226.05; (3) in January 1987, the mother discontinued any further contribution to tuition payments and father discontinued payment of $565.00 per month child support payment to the mother; and (4) the combined payments of the parties exceeded the Auburn annual published estimates of college costs. The trial court further found that-

an implicit condition of the agreement by the parties for payment of college expenses for Chris was the assumption he would take a normal course load, would make satisfactory academic progress, and would work toward a suitable degree.

... He accordingly should hereafter be entitled to payment of college expenses from the parties for any quarter of college attendance only if he is enrolled throughout the quarter in fifteen hours of courses for which he will be entitled to credit toward his business degree program. Course credit shall not be given for free elective courses, except with approval of both parents. The parties should not be responsible for college expenses for any quarter unless Chris's grade point average in the preceding quarter equalled 2.0 or better.

The order outlined a procedure whereby the parties would share their son's college expenses with minimal contact with each other. Jurisdiction was reserved to determine the question of child support pending a hearing. On August 25, 1988, the mother filed a motion for rehearing of the August 17, 1988, order on the motions for contempt and modification.

At the hearing held October 25, 1988, the mother testified that she sold her home in December 1986, because she could not afford her mortgage payments together with the costs of her son's college expenses. After selling her house, the mother first moved to an apartment, then in mid-January 1987, she moved into her fiance's home. The mother said that she contributes equally toward the mortgage payments, utility costs, and all other operating expenses of the home. In addition, she testified that the home had been remodeled and a room added for her son, for the periods of time he lived with her during college breaks.

The father testified his decision to cease paying child support was motivated in part by the fact that the mother was living with another man. The father also stated that his objection to paying child support and college costs for his son was not related to concerns about money. Rather, his objections were based on the fact that he had no control with respect to his son's grades and degree program.

At the conclusion of the hearing, the trial court ruled that a change of circumstances occurred in September 1986, when the parties' son entered college. The court further found that the mother's financial affidavit indicated the son's living expenses were $400.00 per month. Based upon that figure, the trial court established $300.00 per month as the father's child support obligation, with such child support modification retrospective to September 1986. The father's child support arrearage was reduced to $7,800.00, by virtue of the retrospective modification. The trial court further determined that the arrearage would not be reduced for the months of September through December 1986, because the father had received credit against the college expenses for those months. In addition, the trial court determined that the father must contribute $1,800.00 toward the mother's attorney's fees. By order dated December 21, 1988, filed January 10, 1989, the trial court denied the mother's motion for rehearing of the August 17, 1988, order.

At the outset, we find the father's contention that the mother's notice of appeal does not encompass the August 17, 1988, order is without merit. The notice of appeal states that it is directed to orders "rendered December 21, 1988 and January 11, 1989. The nature of these two final orders are an Order signed December 21, 1988 denying the Motion for Rehearing of the Order on Motions for Contempt and Modification which had been signed August 17, 1988, and the Order for Support, signed January 11, 1989, which ruled upon matters reserved for further hearing in the aforesaid August 17, 1988 Order." In view of the specificity of the notice of appeal, the father was not misled concerning the subject matter of the appeal. Furthermore, Florida Rule of Appellate Procedure 9.110(k) provides that "partial final judgments are reviewable either on appeal from the partial final judgment or on appeal from the final judgment in the entire case." In this case, the August 17, 1988, order which expressly reserved jurisdiction for further proceedings in connection with child support, is such a partial final judgment.

The first issue on the merits concerns the construction given to the college costs provision of the parties' agreement, as set forth in the final judgment. A separation agreement entered into by the parties and ratified by the trial court is a contract, subject to interpretation like any other contract. Underwood v. Underwood, 64 So.2d 281 (Fla.1953); Herrero v. Herrero, 528 So.2d 1286 (Fla. 2d DCA 1988); Kenyon v. Kenyon, 496 So.2d 839 (Fla. 2d DCA 1986) rev. denied, 506 So.2d...