Bockoven v. Bockoven, 83-97
| Decision Date | 15 December 1983 |
| Docket Number | No. 83-97,83-97 |
| Parties | Barbara Hester BOCKOVEN, Appellant, v. Albert Marvin BOCKOVEN, Appellee. |
| Court | Florida District Court of Appeals |
Flem K. Whited, III, Daytona Beach, for appellant.
Garrett L. Briggs of Adams & Briggs, Daytona Beach, for appellee.
The appellant appeals from an order modifying a final judgment of dissolution of marriage which incorporated a separation and property settlement agreement between the parties. In its modification order, the trial court granted substantial relief to appellee husband relative to property and financial matters which were set forth in detail in the agreement.
In order to determine the issue on appeal, it is necessary to address the question as to whether the agreement is actually a pure property settlement agreement or whether parts of it can be considered payment made in lieu of alimony and thus modifiable. Jurisdiction, and therefore, modification, are dependent upon a determination of the nature of the agreement. Rubio v. Rubio, 347 So.2d 1093 (Fla. 2d DCA 1977). It is well settled that an agreement entered into to provide for alimony payments is subject to modification by the trial court. The court, however, does not have jurisdiction to modify an agreement which constitutes a settlement of property rights.
An examination of the record reveals a detailed property settlement agreement which, among other things, provides for periodic payments of money by the husband to the wife. Appellant contends that periodic payments are not necessarily alimony. In Fagan v. Lewis, 374 So.2d 18 (Fla. 3d DCA 1979), the former husband appealed from a final judgment denying his petition for modification of a property settlement agreement entered into with his former wife in connection with a divorce judgment. The agreement required the husband to pay the wife $170.00 per week "for her support and maintenance and discharge of the legal obligation" of the husband. The appellate court in sustaining the trial court found that the terms of the agreement were clearly in the nature of a property settlement in which the rights of the parties had become vested.
Applying the premise set forth in Fagan, supra, it is clear that appellant as well as appellee relinquished substantial property rights which were set forth in detail in the agreement for valuable consideration. The wife sold her business to her husband for $60,000.00 and the transaction was secured by a promissory note and a financing statement. She accepted employment with the husband with a separate employment contract at a set salary for her services. The parties also agreed to sell the marital residence and divide the purchase price. The wife further agreed to relinquish her interest in the jointly-owned Ford van to the husband and the husband agreed to relinquish his interest in the jointly-owned Corvette and motorcycle to the wife. The wife also agreed to transfer the title to the houseboat over to the husband. The only periodic payments of consequence in the actual agreement, as the wife points out, are those made in maintenance of the marital residence, and, under the terms of the agreement, those payments were to end upon the sale of the marital residence. As a result, they cannot be said to be in the nature of alimony payments. Additionally, the sale of the business to the husband appears to be solely a business transaction with no unusual payments that could in any way be labeled as alimony. Finally, that part of the agreement which allows for the employment of the wife by the husband as manager of the husband's business, while perhaps unwise, appears to be simply an employment contract and no more. The salary the wife was to receive was not more than would be reasonably expected for one in that position and certainly could not be termed in the nature of support, as she was expected to earn the money by working at the business.
A close analysis of the agreement reveals that the property rights of the parties were resolved in a conclusive manner. As such, its provisions are to be interpreted in the same manner...
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