Frye v. Frye

• Decision Date: 23 July 1980
• Docket Number: No. 79-2233,79-2233
• Citation: 385 So.2d 1383
• Parties: Larry Haynie FRYE, Appellant, v. Linda Ann FRYE, Appellee.
• Court: Florida District Court of Appeals

Page 1383

385 So.2d 1383

Larry Haynie FRYE, Appellant, v. Linda Ann FRYE, Appellee.

No. 79-2233.

District Court of Appeal of Florida, Second District.

July 23, 1980.

George M. Osborne of Osborne & Ciarciaglino, St. Petersburg, for appellant.

Larry G. Rightmyer, St. Petersburg, for appellee.

CAMPBELL, Judge.

In this case, we deal for the first time in this district with the question of whether a court must terminate rehabilitative alimony upon the remarriage of the spouse receiving that alimony.

Larry and Linda Frye were married on August 30, 1975, and separated less than three years later. As part of the dissolution proceedings, the Fryes entered into an agreement entitled "Separation and Property Settlement Agreement" in which they made provisions for the custody, visitation, and support of their minor child as well as for her medical and dental expenses and college education. The agreement also provided for payment of $1,500 lump sum alimony and $900 attorney's fees to Mrs. Frye, and made disposition of the couple's automobiles and furniture. Finally, it called for the payment to Mrs. Frye of the amount of $20 per week for a period of 52 weeks and was specifically designated as "rehabilitative alimony". The agreement was silent as to the effect of the remarriage of Mrs. Frye during that 52 week period.

The court entered a final judgment dissolving the marriage in which it incorporated the provisions of the Fryes' agreement. Approximately three months later Mrs. Frye remarried. Thereupon, Mr. Frye, on the advice of his attorney, discontinued payment of rehabilitative alimony. Mrs. Frye then filed a motion asking the court to declare Mr. Frye in contempt or, in the alternative, to compel his compliance with the final judgment. Mr. Frye responded by filing a petition for modification of the rehabilitative alimony alleging only the remarriage of Mrs. Frye as support for the modification. After a hearing on these motions at which no evidence was offered, the court entered an order in which it directed Mr. Frye to make all of the rehabilitative alimony payments required by the property settlement agreement. Mr. Frye then instituted this appeal.

The court refused to modify the rehabilitative alimony provision primarily because it originated as part of a property settlement agreement, relying on Vance v. Vance, 143 Fla. 513, 197 So. 128 (1940). In order, then, to determine the correctness of the trial court's ruling, we will first determine whether it depends on a reliance on the Vance case.

In Vance, the husband and wife entered into a property settlement agreement whereby the husband was to pay the wife $100 per month for six years and keep current a life insurance policy for her benefit. The payments were not designated as "alimony" payments. The wife, in turn, promised not to pledge the husband's credit and, in the event of a divorce, not to claim dower or any other interest in the husband's estate. They both agreed to divide between them their personal property which they had acquired during the marriage. Subsequently, they divorced, and the court incorporated the settlement agreement into its final decree. The wife then remarried and the husband sought to end the monthly payments of $100. The trial court granted the husband's motion, thereby ending the payments. The supreme court reversed and said:

When there is no property settlement or other impediment in the way, the remarriage of a divorced wife will generally relieve the former husband from the payment of alimony but where a property settlement was in good faith entered into by the parties and it is shown that it was intended as a release of all claims of each against the other, including that for alimony and one or both the parties have acted in reliance on the provisions of the property settlement, it should not be disturbed merely because one of the parties remarried.

143 Fla. at 517, 197 So. at 130.

While Vance appears to be much like the present case because both involve payments to be made over a specified period of time, it may be distinguished. Cases subsequent to Vance which have dealt with the modification of the terms of agreements entered into at the time of divorce usually hold that only those portions of such agreements which are in the nature of property settlements are not modifiable and that provisions in such agreements which are true alimony provisions, even though not designated as such, 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 849 (Fla. 2d DCA 1967).

Here, however, except for losing the right to make further claims against her husband by virtue of a mutual release clause contained therein, it cannot truly be said that Mrs. Frye gave up anything as a result of signing this agreement. Though the award in this case looks much like the contested provision in Vance, there the court treated the periodic payments as part of an overall property settlement and not as alimony and, therefore, not subject to modification. Here, however, it must be said that the periodic payments were, in fact, exactly what they were labeled, "rehabilitative alimony". It should be noted, however, that at the time the supreme court decided Vance the concept of "rehabilitative alimony" was not in existence.

If, then, we feel we cannot appropriately apply Vance to the facts here, we must determine if the trial court's denial of the husband's petition can otherwise be sustained. Mr. Frye's petition alleged that his wife had remarried and that she no longer needed rehabilitative alimony, and further that in the event she did need further rehabilitation, such rehabilitation should be the responsibility of her new husband. However, no evidence of Mrs. Frye's need was presented. On appeal, Mr. Frye refers us to cases which hold that the recipient's remarriage terminates the payor's obligation to pay. Although those cases involved permanent periodic alimony, Mr. Frye argues that they should control here since there is no substantial distinction between permanent and rehabilitative alimony.

We do not agree that there is no substantial distinction between the types of periodic alimony. Rather, there appears to be a sufficient distinction in terms of philosophy and purpose to warrant a holding that the well-established rule requiring termination of permanent periodic alimony upon the recipient's remarriage does not necessarily compel the same result when the periodic alimony is rehabilitative in nature.

Initially, it must be noted that all of the cases out of the Florida Supreme Court on this subject have dealt with termination, upon the recipient's remarriage, of alimony in general not with the specific type of alimony involved here. Moreover, those cases do not seem to set out a hard and fast rule requiring termination in all cases. And finally, all but one of those cases were decided prior to the advent of the concept of rehabilitative alimony. Six supreme court cases have touched on the question. Carlton v. Carlton, 87 Fla. 460, 100 So. 745 (1924); Vance v. Vance, 143 Fla. 513, 197 So. 128 (1940); Friedman v. Schneider, 52 So.2d 420 (Fla.1951); Chaachou v. Chaachou, 135 So.2d 206 (Fla.1961); In re Estate of Freeland, 182 So.2d 425 (Fla.1965); Canakaris v. Canakaris, 382 So.2d 1197 (Fla.1980). However, only Carlton and Friedman can be said to have directly confronted the issue of termination of alimony upon the recipient spouse's remarriage, but as in the other cases permanent alimony was involved.

Carlton is generally regarded as the seminal case, and although the court stated that the divorced wife was not entitled to alimony or maintenance and support because she had remarried, that rule was enunciated in almost a factual vacuum. The facts which were recited, however, distinguish it from the instant case: The concept of rehabilitative alimony did not exist at that time, and the wife had remarried between the time the chancellor had refused to award alimony and the time he again considered the question after the supreme court, in Carlton v. Carlton, 78 Fla. 252, 83 So. 87 (1919), had reversed his initial refusal. ¹ We question the applicability of that case, decided fifty-six years ago, to the case sub judice.

In Friedman v. Schneider, the husband was ordered to pay an unallocated sum of $375 a month for both child support and alimony. The wife remarried three years later and the husband ceased payments. Citing Carlton, the court held that "(w)here the periodic payments represent only the amounts the court decides are necessary to afford shelter, food, and clothing . . . for the quondam wife, her marriage to another ends the obligation." 52 So.2d at 421 (Emphasis added.) The court emphasized that "(t)he moneys to be paid by (the husband) seem only to have been ordered for the purpose of furnishing livelihood for the woman and child." Id. As will be seen, that purpose significantly distinguishes the alimony involved in Friedman from rehabilitative alimony. Moreover, the court in that case mentioned the existence of a prior agreement which had provided for termination of alimony upon the wife's remarriage. The rehabilitative alimony provision of the agreement involved in the instant case made no mention of the effect of remarriage.

All of the other supreme court cases expressed the termination rule in dicta. In Vance v. Vance, for example, the issue was whether an agreement between the parties was for alimony or for the settlement of property. (In holding that the agreement was one for the settlement of property and, thus, not modifiable, the court seemed to recede from its unequivocal rule in Carlton by stating that a wife's remarriage will "generally" relieve her former husband from his obligation...