Jaffee v. Jaffee, 80-146

• Decision Date: 03 February 1981
• Docket Number: No. 80-146,80-146
• Citation: 394 So.2d 443
• Parties: Beatrice JAFFEE, Appellant, v. Marvin JAFFEE, Appellee.
• Court: Florida District Court of Appeals

Page 443

394 So.2d 443

Beatrice JAFFEE, Appellant, v. Marvin JAFFEE, Appellee.

No. 80-146.

District Court of Appeal of Florida, Third District.

Feb. 3, 1981.

Rehearing Denied March 3, 1981.

Rubin & Friedman and Melvin A. Rubin, Miami, for appellant.

David M. Gersten, Miami, for appellee.

Before SCHWARTZ, NESBITT and BASKIN, JJ.

SCHWARTZ, Judge.

The ex-Mrs. Jaffee appeals from an order reducing the alimony provided in a November, 1970 "property settlement agreement," as incorporated into a final judgment of divorce entered in January, 1971. She also challenges the trial court's order that her former husband pay only half of the $12,500 in reasonable attorney's fees required for her defense of the modification proceeding. We reverse on both counts.

When their marriage broke up in 1970, the Jaffees had been married for over 20 years and had four children, ranging in age from 13 to 19. Dr. Jaffee was and still remains an active and successful pathologist. Mrs. Jaffee is a registered nurse, but had devoted the vast majority of her recent efforts to her domestic duties. The agreement, which both parties executed with the advice of respective counsel, provided for support payments of $250 per child per month until 21, and the disposition of the marital home after the last child had left, with the proceeds to be evenly divided. On the now-critical issue, it was agreed that Dr. Jaffee would pay permanent periodic alimony of $1,000 per month, subject to cost-of-living adjustments. It was further expressly stated:

The parties acknowledge that the Wife is a trained registered nurse with supervisory experience, and in the event that the Wife should resume her nursing career in order to supplement her income, such resumption of work by the Wife shall not be the basis for the Husband to seek a reduction in alimony due to the Wife.

In 1978, after two prior unsuccessful attempts to do so, Dr. Jaffee filed the present motion to reduce or eliminate his alimony obligation. ¹ Although there was some reference to an alleged diminishment in the husband's earning abilities, ² the primary thrust of the proceeding was that modification was justified by changes in Mrs. Jaffee's financial circumstances. By the time of the hearing on the motion in 1979 when the alimony payments had become $1,500 per month Mrs. Jaffee was 58, the children had all reached 21 and the home had been sold. Although she had received no other funds since the divorce, Mrs. Jaffee's half of the proceeds of the home had been converted into some $70,000 in assets of various kinds, including a $5,000 deposit on a new condominium residence. Insofar as employment was concerned, Mrs. Jaffee was listed with a nursing registry, from which she averaged approximately one day of work per week. Although she said she wanted to work more often, she also acknowledged that she had not sought full-time employment both because of her health and, more important, because she simply did not wish, at her age, to recommence full-time work after thirty years of not having done so. She continued instead to rely heavily upon the alimony payments in order to support herself.

On the basis of this testimony, the trial judge granted the husband's motion in part, holding:

The Court finds and determines that there has been a substantial change of circumstances in this case to justify a modification and that the husband is entitled to a reduction, but not an elimination of alimony entirely.

The Court finds and determines that there has been a substantial change in the financial condition of the parties. The children of the marriage are no longer minors and they do not reside in the marital home with the Mother. In fact, the marital home has been disposed of and the wife is in the process of purchasing a condominium home.

The Court finds and determines that both parties have financial resources and assets of their own.

The Court finds and determines that the wife is a fully licensed Registered Nurse and while she chooses on her own volition to work only one day a week she is both physically able and employment is available should she desire.

The Court finds and determines that the wife's testimony that her needs are approximately $36,000 yearly is unrealistic. The wife is a single, healthy, licensed Registered Nurse who can play tennis and otherwise has a normal activity schedule.

In accordance with these determinations, the court reduced the $1,500 alimony provision to $900 per month for a period of five years, ³ after which the issue was to be reexamined. This order is entirely unsupported by the controlling law and cannot be approved. While the trial court correctly determined that the alimony provision of the Jaffees' agreement was in fact generally subject to modification upon a proper showing, § 61.14, Fla.Stat. (1977), ⁴ the grounds relied upon below the "changes" in Mrs. Jaffee's financial situation and availability for additional employment were plainly, and as a matter of law, insufficient to justify the granting of that relief in this case. This is so because of the effect of two separate rules of law, both of which are directly contrary to the order under review.

No Unanticipated Change of Circumstances. In the first place, it is well-established that an alimony award may not be modified because of a "change" in the circumstances of the parties which was contemplated and considered when the original judgment or agreement was entered. E. g., Withers v. Withers, 390 So.2d 453 (Fla. 2d DCA 1980); Coe v. Coe, 352 So.2d 559 (Fla. 2d DCA 1977); Ashburn v. Ashburn, 350 So.2d 1158 (Fla. 2d DCA 1977); Howell v. Howell, 301 So.2d 781 (Fla. 2d DCA 1974); Waller v. Waller, 212 So.2d 352 (Fla. 3d DCA 1968); Tewksbury v. Tewksbury, 178 So.2d 346 (Fla. 2d DCA 1965). The reason for this doctrine is an obvious one: if the likelihood of a particular occurrence was one of the factors which the court or the parties considered in initially fixing the award in question, it would be grossly unfair subsequently to change the result simply because the anticipated event has come to pass. Both the rule itself and its rationale apply directly to this case. All of the "changes" in Mrs. Jaffee's situation were known, anticipated, and bargained about when the parties formulated their agreement in 1970:

(a) The obvious fact that the children would all eventually turn 21 and leave the home was provided for by the elimination of the husband's obligation to pay child support, specifically without any effect on the permanent alimony payments; see, Coe v. Coe, supra; Waller v. Waller, supra;

(b) Mrs. Jaffee's receipt of substantial funds from the sale of the marital home was the result of the specific provision to that effect in the agreement (which, again, nevertheless did not provide for a reduction in alimony when the sale took place). Ashburn v. Ashburn, supra; Howell v. Howell, supra; compare, Friedman v. Friedman, 366 So.2d 820 (Fla. 3d DCA 1979), cert. denied, 376 So.2d 71 (Fla.1979), in which the wife received a large inheritance after the divorce.

(c) As to the element which most influenced the trial court, both parties obviously were aware of Mrs. Jaffee's education and training as an R.N., and of the fact that she would become available to take on more work after the children grew up and moved away. See, Coe v. Coe, supra; Waller v. Waller, supra. In this connection, it should be emphasized that, unlike Friedman v. Friedman, supra, and Anderson v. Anderson, 333 So.2d 484 (Fla. 3d DCA 1976), upon which the trial court relied, Mrs. Jaffee is not actually self-supporting without reliance on the alimony, but merely has the alleged potential ability to become so.

Based on an analysis similar to this one, Withers v. Withers, supra reserved the elimination of an alimony obligation in an "aging ex-wife-R.N. v. ex-husband-M.D." dispute in which the facts, in many respects, were remarkably like these. We would also find that the order below is unjustified even in the absence of the husband's specific contractual waiver, to the effect of which we now turn.

Husband Contractually Precluded from Reliance on Wife's Employability. As we have seen, the primary basis for reducing the agreed-upon alimony payments was the trial judge's view that, if she wished, Mrs. Jaffee could support herself through her earnings as a qualified registered nurse. Even assuming the factual accuracy of this determination, Dr. Jaffee is precluded from relying upon it, as he successfully did below, by his specific contrary agreement that any "resumption of (her nursing career) by the Wife shall not be the basis for the Husband to seek a reduction in alimony...." (e. s.) There is no question of the validity and binding effect of this contractual undertaking, viewed either as a limited waiver of an otherwise existing right to seek modification, see, Lee v. Lee, 157 Fla. 439, 26 So.2d 177 (1946); Kilpatrick v. McLouth, 392 So.2d 985 (Fla. 5th DCA 1981) (complete waiver of right to modification valid); Muss v. Muss, 390 So.2d 415 (Fla. 3d DCA 1980) (same); Turner v. Turner, 383 So.2d 700 (Fla. 4th DCA 1980) (same); or, more straightforwardly, as a provision that sums which Mrs. Jaffee actually earns (which, a fortiori includes sums which she merely could earn) from nursing shall not be deducted from the amount the husband must pay. See, e. g., Pusey v. Pusey, supra, 386 So.2d at 271, n.1. Moreover, the meaning of the clause in question is entirely unambiguous, and is clearly conveyed by the plain language employed by the agreement itself. While Dr. Jaffee testified that it was his "intent" that the clause was not to apply after the children left the home, it is apparent that this testimony was incompetent as an attempt to vary the terms of a written document through the insertion of qualifying language which does not appear on its face. Ross v. Savage, 66 Fla. 106, 63 So. 148 (1913); Davis v. Fisher, 391 So.2d 810 (Fla. 5th...