Hardy v. Hardy, B-197

• Decision Date: 04 February 1960
• Docket Number: No. B-197,B-197
• Parties: Helen S. HARDY, Appellant, v. John R. HARDY, Appellee.
• Court: Florida District Court of Appeals

Page 106

118 So.2d 106

Helen S. HARDY, Appellant, v. John R. HARDY, Appellee.

No. B-197.

District Court of Appeal of Florida, First District.

Feb. 4, 1960.

Edward H. Robinson, Jacksonville, for appellant.

No appearance for appellee.

FUSSELL, Associate Judge.

Helen S. Hardy appeals from an order decreeing that the appellee, John R. Hardy, be not required to pay delinquent alimony and support money for his three minor children, and awarding her attorney $25 as a reasonable attorney's fee.

A final decree of divorce was entered between the parties on August 2, 1957. This decree awarded the custody of the three minor children to the wife, with right of visitation by the father at periods definitely set out in the decree. The decree also awarded the appellant $50 per week for alimony and support money. On September 13, 1957, this decree was modified by increasing the alimony and support money to $53 per week.

On October 9, 1958, appellant filed a petition for rule to show cause, alleging that the appellee was delinquent in his alimony and support money payments, and requesting attorney's fee for her attorney. A hearing was had on this petition and the order from which this appeal was taken was entered on March 12, 1959.

The court in its order found that the appellee was in arrears on his alimony and support payments in the amount of $371, and also found that the appellant had failed to give to the appellee visitation privileges as ordered by the prior decrees. It appears from the record that this case had caused the court a great deal of trouble by reason of the bickering and personal ill-feeling between the parties. A prior order had required the appellant to return the children from Alabama where she had taken them and deprived the appellee of his visitation privileges. Apparently many other difficulties arose between the parties which repeatedly caused action by the court and required the court order to be more specific and in detail in order to prevent its circumvention of technical violation, as each of the parties attempted to vent his spite and illfeeling on the other.

Appellant maintains on her appeal that the lower court was without authority to enter this order not requiring the appellee to pay $371, which the court found to be delinquent in alimony and support payments, and that the court also erred in allowing her attorney the sum of $25 which she contends is wholly inadequate for the services he performed. There is no evidence that the children have or will suffer by reason of the failure of appellee to pay this delinquent amount as the wife was apparently able to furnish this support for herself and children from her own resources.

Attention is called first to the failure of the decree to award separately the amount allowed for alimony and the amount allowed for support of the three minor children. Separate amounts should be awarded for alimony and for support of each minor child in all cases.

Our Supreme Court in the case of Zalka v. Zalka, Fla.1958, 100 So.2d 157, has held that an undivided award for alimony and child support is not void, but that each party is entitled to appeal at any time for an allocation of a specific amount for alimony and for child support. See also Katiba v. Katiba, Fla.App., 110 So.2d 693; and Sheppard v. Sheppard, Fla.1950, 45 So.2d 505.

Insofar as alimony is concerned, we feel that that part of the order appealed from which decreed that the appellee be not required to pay past due alimony was in error. The case of Fowler v. Fowler, Fla.1959, 112 So.2d 411, 414, in decisive of this question. In this case the lower court had cancelled past due alimony and refused future alimony payments on petition of the husband for modification because of invidious and vindictive action of the wife, of which the lower court found the wife to be guilty, and which is also found to have caused a reduction in the husband's income. We reversed the lower court, and Acting Chief Judge Wigginton, said:

'(9-11) The statute authorizes modification of an alimony decree only upon a clear showing that the circumstances of the parties or the financial ability of the husband have changed since the entry of the decree. Where the amount of alimony decreed is based upon an agreement freely entered into between the parties, a heavier burden rests upon the husband to justify a modification.

A reduction of the husband's income on any account will not in itself justify a modification in the alimony requirements of the decree. Husband's financial incapacity to continue the payment of alimony in the amount ordered by the decree must be shown if the court is to make such order as justice and equity may require. A modification decree cancelling husband's obligation to pay alimony to his wife cannot be justified solely on the basis of a penalty imposed because of her inequitable conduct which contributes to a diminution in husband's income.'

The statute referred to in the Fowler case, supra, is Florida Statute § 65.15, F.S.A., the pertinent provisions of which are as follows:

'65.15 Modification of alimony decrees, agreements, etc.--Whenever any husband and wife * * * shall have entered into any agreement providing for the payments for, or in lieu of, separate support, maintenance or alimony * * *, or whenever any husband has pursuant to the decree of any court of competent jurisdiction been required to make to his wife any such payments, and the circumstances of the parties or the financial ability of the husband shall have been changed since the execution of such agreement, or the rendition of such decree, either party may apply to the circuit court * * * for an order and judgment decreasing or increasing the amount of such separate support, maintenance or alimony, and the court, * * *, shall make such order and judgment as justice and equity shall require, with due regard to the changed circumstances and the financial ability of the husband, * * *. (Emphasis supplied)

'Thereafter the husband shall pay and be liable to pay the amount of separate support, maintenance, or alimony directed in such order and judgment, * * * and such agreement, or such decree, for the purpose of all actions or proceedings of every nature and wherever instituted * * *, shall be deemed to be, and shall be, modified accordingly, and it shall be unlawful to commence, or cause to be commenced * * * in any court any action or proceeding otherwise than as herein provided, nor shall any court have jurisdiction to entertain any action or proceeding otherwise than as herein provided to enforce the recovery of separate support, maintenance or alimony otherwise than pursuant to such order and judgment.'

By reason of the above Florida Statute and the prior decisions as cited and quoted, that portion of the weekly award which the lower court may decide shall be paid to the appellant as alimony, was improperly cancelled, and it was error to not require the appellee to pay this delinquent alimony since, under the testimony, there was no showing either that the needs of the appellant or the ability of the appellee had changed.

A different situation exists as to that portion of the weekly award which applies to support of the children. There is no agreement between the parties, nor is there any Florida statute which states the grounds upon which the court has authority to modify or cancel payment for such support. The power of the court in this regard is, therefore, determined by the court itself, and prior decisions of our Supreme Court indicate that the lower court has authority to modify, discharge, refuse to enforce, change or place upon condition payments of support from the father to the mother of minor children which have been awarded to her custody. Our courts have apparently felt that this is a proper, practical method of penalizing the mother and enforcing a decree of the court granting visitation privileges to the father, where the mother willfully removes the children from the State or refuses or prevents the father from exercising his right of visitation to his children as granted to him by the court. Naturally, there should be no abuse of discretion on the part of the lower court in exercising its power to thus enforce its decree, and the court should not refuse to require these payments for the support of the minor children where the children will thus be required to suffer. However, our courts have held that the father has a legal duty to support the children, no matter what the financial ability of the mother might be, and it does not seem unfair for the court to refuse to require the father to pay support money to reimburse the mother for the care of the minor children where she has willfully and spitefully violated the order of the court and refused the father his right of visitation with his children.

A review of the Florida cases of this or similar situations discloses the following:

In the case of Putnam v. Putnam, 1939, 136 Fla. 220, 186 So. 517, 518, the decree of the court as modified gave the husband custody of a sixteen year old daughter from July 15 to September 15 in each year, and gave custody to the mother for the remainder of the year. It required support money of $80 per...