Fort v. Fort
| Decision Date | 31 October 1956 |
| Citation | 90 So.2d 313 |
| Parties | Chester A. FORT, Jr., Petitioner, v. Anne Burton FORT, Respondent. |
| Court | Florida Supreme Court |
Smith & Axtell, Jacksonville, for petitioner.
Willard Ayers (of Greene, Ayres & Greene), Ocala, for respondent.
We here review an order of the lower court denying a petition for a reduction in alimony payments awarded to the wife in a divorce decree entered in her favor in 1947. The alimony award was based upon and in conformity with a separation agreement executed by the parties prior to their divorce.
In support of his petition, the husband adduced evidence that his income was approximately one-twelfth of what it was at the time of the agreement and divorce decree, and that the financial situation of the wife was substantially better than at that time. It appeared that the diminution of the husband's income came about when he gave up his medical employment in Atlanta, Georgia, and moved to Jacksonville, Florida, to establish a medical practice there. So far as the record shows, the husband's action in this respect was made in good faith and not from a desire to escape payment of the full amount of alimony agreed upon by the parties and awarded by the divorce decree. It was also shown that the husband had capital assets in the form of real estate which could be--and would have to be--sold to keep up the alimony payments as originally agreed upon and awarded to the wife.
After the introduction of evidence by the husband in support of his petition for reduction, the wife orally moved that the petition be dismissed on the ground that the change in the husband's financial situation was voluntarily produced and not the result of circumstances beyond his control. The motion was granted and the petition dismissed. We here review as on certiorari, under Fla.S.Ct. Rule 28, 31 F.S.A., the order of dismissal.
The Chancellor has a large discretion in passing upon applications for modification of awards of alimony, Blanton v. Blanton, 154 Fla. 750, 18 So.2d 902, but it does not appear that, in the instant case, the Chancellor appraised the uncontroverted facts and entered 'such order and judgment as justice and equity shall require, with due regard to the changed circumstances and the financial ability of the husband, * * *.' Section 65.15, Fla.Stat.1955, F.S.A.
As we read the record here, the Chancellor simply ruled, as a matter of law, that the husband was in no position to claim the benefits of Section 65.15, supra, because his changed financial ability was due to his own voluntary action in changing his employment and he had capital assets which could be converted into cash to meet the monthly payments. So the real issue here is whether a husband is barred, as a matter of law, from applying for a reduction in an alimony award based upon a separation agreement, where the change is brought about by voluntary action on his part and he has capital assets to meet--at least, for a time--the obligation. We have concluded that he is not so barred.
At the outset, it might be noted that it is settled law in this state that a separation agreement, incorporated in a divorce decree, is subject to modification under Sec. 65.15, supra, in the proper circumstances. Vance v. Vance, 1940, 143 Fla. 513, 197 So. 128; Underwood v. Underwood, Fla.1953, 64 So.2d 281. And in...
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Wiedman v. Wiedman
...proof of any one set of facts, such as voluntary or involuntary retirement, requires (as a matter of law) any set result. See Fort v. Fort, 90 So.2d 313 (Fla.1956). For this reason I disagree with the majority opinion in this case. The trial court's determination that Donald's retirement wa......
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Ohmes v. Ohmes
...(Emphasis supplied) Other Florida cases making similar enunciations are Vance v. Vance, 1940, 143 Fla. 513, 197 So. 128; Fort v. Fort, Fla.1956, 90 So.2d 313; Howell v. Howell, Fla.App.1964, 164 So.2d The answer of respondent in the Court below makes certain general averments, from which a ......
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Galligher v. Galligher, 87-843
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Frye v. Frye
...are subject to modification as they would be had they not been part of an agreement but rather ordered by the court. See Fort v. Fort, 90 So.2d 313 (Fla.1956); Underwood v. Underwood, 64 So.2d 281 (Fla.1953); Friedman v. Friedman, 366 So.2d 820 (Fla. 3d DCA 1979); Ohmes v. Ohmes, 200 So.2d ......