Jelke v. Jelke, 69--795

• Decision Date: 17 February 1970
• Docket Number: No. 69--795,69--795
• Citation: Jelke v. Jelke, 233 So.2d 408 (Fla. App. 1970)
• Parties: Sylvia JELKE, Appellant, v. Minot Frazier JELKE, Appellee.
• Court: Florida District Court of Appeals

Page 408

233 So.2d 408

Sylvia JELKE, Appellant, v. Minot Frazier JELKE, Appellee.

No. 69--795.

District Court of Appeal of Florida, Third District.

Feb. 17, 1970.

Rehearing Denied April 20, 1970.

Horton & Schwartz, Krystow, Gay & Claiborne, Miami, for appellant.

Lurie & Capuano, Miami, for appellee.

Before PEARSON, C.J., and CHARLES CARROLL and HENDRY, JJ.

PEARSON, Chief Judge.

Sylvia Jelke, former wife of Minot Frazier Jelke, brings this interlocutory appeal from an order denying her petition for modification of the child support provisions of the final judgment of divorce. We hold that the uncontradicted evidence required a modification of some portions of the support provisions in the final judgment and that therefore the trial judge erred in failing to modify the judgment.

We reverse in part.

The parties were divorced in 1961. The final judgment incorporated a property settlement agreement. The provisions of that agreement in question here concern: (1) payment of $300 per month for each child; (2) transfer of the father's one-half interest in the marital home to a trustee for the two minor children; (3) sale of the marital home within 15 years of the date of the decree and use of the proceeds of the children's one-half interest for their education.

The petition for modification alleged that the amount necessary to support the children had increased and that the financial position of Mr. Jelke had substantially improved. The uncontested evidence shows that Mr. Jelke is able to make increased payments and that the needs of the children have increased. It was revealed however that Mr. Jelke has voluntarily paid: (1) an additional $100 per week for child support; (2) the annual tax on the home, approximately $1750; (3) $2400 per year for the children's private schooling.

Mrs. Jelke testified that $905 per month was required in general expenses to support the two children, who are now ten and eleven years old. In addition she asked that the judgment be modified to require the appellee to pay medical expenses, the $2400 yearly cost of the private schooling, the taxes on the home, and $20,000 to repair the home. Mr. Jelke stopped making the voluntary payments when Mrs. Jelke filed the petition for modification.

Mr. Jelke urges that the trial judge correctly ruled that modification was improper because the amounts set in the final judgment had been determined by a property settlement agreement. It is clear that where increased needs and an increased ability to provide for the needs are shown, a trial court has the power to require increased child support payments even though the amounts set in the judgment were those provided in a property settlement agreement incorporated into the final judgmet of divorce. See Sirkin v. Sirkin, Fla.App.1967, 204 So.2d 13. Further, it is error for a court to deny a petition for modification in the face of essentially undisputed evidence of a husband's improved ability to pay and substantially increased needs of the husband's children. See Chord v. Chord, Fla.App.1968, 209 So.2d 281. Voluntary...