Kennard v. Kennard

• Decision Date: 16 February 1938
• Citation: Kennard v. Kennard, 131 Fla. 473, 179 So. 660 (Fla. 1938)
• Parties: KENNARD v. KENNARD.
• Court: Florida Supreme Court

179 So. 660

131 Fla. 473

KENNARD v. KENNARD.

Florida Supreme Court

February 16, 1938

Rehearing Denied March 29, 1938.

Divorce proceeding by Sarah E. Kennard against Philip F. Kennard wherein defendant sought modification of a decree requiring defendant to pay plaintiff a stipulated amount per month for support and maintenance of two minor children.From the decree, the defendant appeals.

Affirmed.Appeal from Circuit Court, Hillsborough CountyL. L. Parks, judge.

COUNSEL

D. C McMullen, of Tampa, for appellant.

Whitaker Brothers, of Tampa, for appellee.

OPINION

CHAPMAN Justice.

On appeal to this court it has been made to appear that on January 20, 1928the circuit court of Hillsborough county, Fla., entered a decree of divorce in behalf of Sarah E. Kennard against Philip F. Kennard, and the said final decree awarded the custody of their two minor children to the plaintiff and required the defendant to pay to the plaintiff $125 per month for support and maintenance of the children.On April 13, 1931, defendant below, appellant here, by petition asked for a modification of the final decree dated January 20, 1928.On May 4, 1931, plaintiff below, appellee here, filed her petition for a rule nisi against the defendant, and on August 1, 1932, the chancellor adjudged defendant to be in arrears on alimony in the amount of $1,317.On October 2, 1934, the court entered its order adjudging the defendant to be in arrears on alimony under the original decree in the sum of $3,787.

On January 6, 1936, defendant below, appellant here, filed his petition for a modification of the final decree and a motion to dismiss the same was sustained by the court on February 20, 1936.Other hearings between the parties were had, when on January 17, 1936, the court entered its order modifying the final decree dated January 20, 1928, by relieving defendant below from the payment of alimony for the support of Evelyn Kennard because she was 21 years of age, and the final decree dated January 20, 1928, was further modified by requiring defendant to pay $75 per month during the school months and $50 per month during vacation months for the support of his daughter, Margaret Kennard, 18 years of age.

The decree dated July 17, 1936, recited the amount due by appellant, defendant below, on account of the order and final decree dated January 20, 1928, to be in the sum of $4,587 until February 1, 1936.An appeal from said final decree dated July 17, 1936, was taken to this court and two assignments of error presented for reversal of the decree appealed from.

The order of July 17, 1936, modified the final decree dated January 20, 1928, by relieving appellant from paying alimony for the support of Evelyn Kennard after she became 21 years of age.It was further modified requiring appellant to pay $75 per month during the school period and $50 per month during the vacation period for the support of Margaret Kennard until the further order of the court, 'and the final decree dated January 20, 1928, shall stand unchanged in all other respects.'The decree dated July 17, 1936, recites:

'It is further ordered that the defendant, Philip F. Kennard is now in arrears on account of said order entered on the 20th day of January, A.D. 1928, the sum of $4587.00, up to and including the February 1st, 1936, payment, which was the date of the last payment under said order prior to the time the said Evelyn Kennard became 21 years of age.'

The modification order dated, supra, was fully authorized by the authority of Duss v. Duss,92 Fla. 1081, 111 So. 382, and Schouler on Marriage, Divorce and Separation, vol. 2, 6th Ed., pp. 1993-1995, par. 1831, viz.:

'Modification can only be ordered on proof of change of conditions, as the decree is final as to conditions existing at the time, and a slight change is not enough to warrant modification.The husband's financial inability or the wife's wealth may not be alone ground for modifying the award, but the whole question is in the absolute discretion of the court.

'Alimony may be changed on grounds connected with the support of the children, or may be increased where it becomes inadequate, as where the wife becomes helpless and needs more than before.Alimony may be reduced where the husband's income is decreased, as where illness of the husband has caused him large expense and the wife needs less than before, or where the wife inherits property...