Brown v. Brown
| Citation | 440 So.2d 16 |
| Decision Date | 26 October 1983 |
| Docket Number | No. AN-149,AN-149 |
| Parties | Mirth K. BROWN, Appellant, v. Dwight D. BROWN, Appellee. |
| Court | Florida District Court of Appeals |
Donald L. Braddock, of Howell, Liles, Braddock & Milton, Jacksonville, for appellant.
Kathleen F. Dekker of Brown & Camper, Tallahassee, for appellee.
The seventeen-year marriage of these parties ended in a 1979 Maryland divorce in which the wife was awarded alimony of $250.00 a month, and child support of $400.00 a month. After the Maryland divorce judgment was adopted as a Florida judgment in the Circuit Court of Duval County, the court modified the Maryland decree by terminating the husband's obligation to pay alimony, and reducing child support payments to $300.00 per month. The wife appeals. We affirm the order of modification except for the trial court's failure to retain jurisdiction for consideration of a future award of alimony, and remand for further proceedings with respect to that issue.
There would be little value in a detailed recitation of the evidence tracing the husband's fall from relative prosperity as a 40-year old president of a "high-tech" company earning $60,000.00 (plus) annually in 1977, prior to the divorce, to his present impecunious condition as a 44-year old, "over-the-hill" (his assessment) small company employee earning under $10,000.00 a year. We are immediately struck, however, by the improbability that one with the husband's qualifications (two engineering degrees, and a background including positions of responsibility with at least one Fortune 500 company), will forever remain down and out. We are confident that the same improbability must have occurred to the trial judge, for the record reflects the judge's close scrutiny of the husband's testimony concerning his employability. The husband has remained either unemployed or underemployed for some five years (he was fired from his $60,000.00 a year job prior to the divorce) and his testimony revealed extensive job-search efforts, as to which he says he has been disadvantaged by pending litigation with his former employer. He cites as further obstacles the fact that his engineering education is now out-dated in a world of rapidly changing technology, and he points also to the problem of over-qualification facing one of his age, background, and education in seeking re-employment at any level within his narrow field of expertise, computerized typesetting.
In his order of modification, the trial court found that the Maryland court's award of child support and alimony was based primarily upon the husband's history of high earnings, together with the presence of substantial assets not affected by the fact that he was unemployed at the time of the dissolution. Furthermore, at the time of the dissolution the wife was not engaged in income producing work. The court found, however, that since the dissolution the husband's assets have been disposed of, and despite substantial efforts on the part of the husband he is presently employed at a modest wage. The trial court noted in the order also that since the entry of the Maryland dissolution the wife has become the equitable owner of a comfortable home in Jacksonville, and with exception of a short period of time in early 1982 has been regularly employed as a legal secretary earning wages exceeding the earnings of the husband at his current employment. The trial court concluded that the husband does not have the "current ability" to pay child support and alimony as required by the prior judgment.
The rule governing the termination of permanent, periodic alimony in modification proceedings is that the moving party must show a substantial change in the circumstances of one or both parties not contemplated at the time of the final judgment of dissolution, and it must be further shown that the moving p...
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