Friedman v. Friedman, 78-166
| Decision Date | 16 January 1979 |
| Docket Number | No. 78-166,78-166 |
| Citation | 366 So.2d 820 |
| Parties | Jack J. FRIEDMAN, Appellant, v. Rose A. FRIEDMAN, Appellee. |
| Court | Florida District Court of Appeals |
Greenberg & Murray and Donald J. Murray, Miami, for appellant.
Robert Silverstein, Miami, for appellee.
Before HAVERFIELD, C. J., and BARKDULL, J., and CHARLES CARROLL (Ret.), Associate Judge.
This is an appeal from a post-judgment order, in a divorce action, which denied the husband's petition seeking modification of the judgment to terminate further payments of periodic alimony.
In the circumstances disclosed by the record, where notwithstanding the husband's ability to pay the alimony, it was shown that the financial condition of the wife had improved substantially and that she had become self-supporting, we hold it was an abuse of discretion for the court to deny the husband's petition for modification. Mumm v. Mumm, 353 So.2d 134 (Fla. 3d DCA 1977); Goldin v. Goldin, 346 So.2d 107 (Fla. 3d DCA 1977); Anderson v. Anderson, 333 So.2d 484 (Fla. 3d DCA 1976); Kennedy v. Kennedy, 303 So.2d 629 (Fla.1974); Craig v. Craig, 298 So.2d 189 (Fla. 1st DCA 1974); Thigpen v. Thigpen, 277 So.2d 583 (Fla. 1st DCA 1973); Beard v. Beard, 262 So.2d 269 (Fla. 1st DCA 1972). Cf. Gratton v. Gratton, 358 So.2d 262, 265 (Fla. 3d DCA 1978).
In 1970, at suit of the wife, the parties were divorced by a judgment in which an agreement they had made some three weeks earlier was approved and made a part.
The provisions of the agreement included the following: that the wife was to amend her complaint for separate maintenance, to seek divorce; that the husband was to convey to the wife his interest in the marital home and its furnishings; that "as the purchase price" for the wife's stock in Engineered Castings, Inc. (representing her one-half interest in a corporate business operated by the husband) the husband would pay the wife $30,000.00, with $5,000.00 thereof payable upon the signing of the agreement and the balance payable at the rate of $100.00 per week until fully paid; and that the husband would transfer to the wife title to a certain automobile; that the wife would retain her stock until the $30,000.00 was fully paid, after which she would transfer the stock to the husband and convey to him her one-half interest in the property on which the business was located. While retaining the stock, the wife was to have the benefit of the corporation's group medical insurance policy.
The agreement contained a provision that if the husband should die before the said $30,000.00 was fully paid, the wife would retain the stock, subject to a right of the personal representative of the husband's estate to pay off the unpaid balance and thereupon receive the stock, if he should so elect.
Regarding alimony, the agreement contained the following provisions:
Seven years later, on February 23, 1977, the husband filed his petition for modification of the judgment to be relieved of further payment of alimony. His petition alleged his past compliance with the judgment, and as a grounds for the relief sought stated: "(T)he respondent, Rose A. Friedman, has become self-supporting, and her financial situation has improved substantially," and alleged his financial condition had worsened because of increased obligations. The wife's answer to the petition admitted the husband's compliance, and denied the other allegations.
The matter came on for hearing and evidence was presented, following which the trial court entered the order appealed from. Thereby, without making any findings of fact or stating conclusions of law, the court denied the husband's petition for modification. 1
The husband made no showing of adverse change in his financial circumstances, in support of the allegation relating thereto in his petition. The evidence revealed that his income has steadily increased. The fact that he may voluntarily have incurred obligations is not material. On this appeal, the husband concedes his financial ability to continue to pay the alimony, but contends the change in the circumstances of the wife, consisting of an increase in her financial ability by which she is adequately self-supporting entitled him to be relieved from further alimony payments.
The showing on the record, as to the change of circumstances and financial ability of the wife, most of the evidence as to which was supplied by the wife, is that there has been a substantial increase in her financial condition, and that from her employment and other income she has become self-supporting. At the time of the divorce, in 1970, the wife had an annual income of $3,200.00. She then became the sole owner of the residence property of the parties, and was to receive $30,000.00 from the husband. The residence property had an equity value of approximately $25,000.00 (as established when the wife sold it in 1973). With the benefit of a certain inheritance received by the wife subsequent to the divorce, by 1977 her assets amounted to approximately $185,000.00. That consisted of $178,000.00 in cash and $7,000.00 in municipal bonds, plus ownership of an automobile. Her debts did not exceed $500.00. She lives in an apartment, and it was her statement that her lifestyle is comparable to the modest lifestyle of the parties prior to her divorce. The wife has regular employment at Jackson Memorial Hospital, with substantial fringe benefits. Her annual salary in that position is between $12,000.00 and $13,000.00. She holds a real estate salesman's license. With her salary, and her income derived from other sources, the wife has an annual income of approximately $24,000.00 a year. Her living expenses were shown to be $12,500.00 per year. She pays approximately $6,500.00 income tax. Thus, it was shown that although the wife was not self-supporting at the time of the judgment in 1970, she had become self-supporting by 1977, and presently her...
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