Leone v. Weed
| Decision Date | 21 August 1985 |
| Docket Number | No. 83-2784,83-2784 |
| Parties | 10 Fla. L. Weekly 1998 Linda Irene LEONE f/k/a Linda Irene Weed, Appellant, v. Thomas John WEED, Appellee. |
| Court | Florida District Court of Appeals |
James Fox Miller of Miller and Schwartz, P.A., Hollywood, for appellant.
Terrence P. O'Connor of Morgan, Carratt and O'Connor, P.A., Fort Lauderdale, for appellee.
The former wife appeals an order of the trial court denying her motion for contempt and granting the former husband's motion for modification of child support. We reverse.
The parties' marriage was dissolved in January of 1974. The final judgment incorporated by reference a property settlement agreement, which contained provisions concerning a wide variety of topics, including alimony and both child custody and support. According to the agreement, the wife received custody of the minor daughter, who was three years old at the time. The husband agreed to pay $200 per month beginning on December 1, 1973 and, on December 1, 1975, would increase the payments to $350. These payments were to continue until the daughter reached 18 years of age, married or became self-supporting. With respect to the husband's alimony obligations, he agreed to pay $350 per month commencing December 1, 1973 and ending on January 1, 1983, or until the wife died or remarried, whichever occurred first. Finally, the husband agreed to be responsible for medical and dental expenses of their child as long as he was otherwise obligated to support the child pursuant to the agreement. He also agreed to carry a life insurance policy in the amount of $50,000, with the wife as beneficiary, until his child support obligations terminated.
In May of 1981 a general master, acting upon a request by the husband to decrease his obligations, and an opposing request by the wife to increase them, raised the required child support payments from $350 to $650 per month. The former husband subsequently filed exceptions to the general master's recommendations in the trial court but to no avail--the court not only affirmed the master's findings, it also boosted the child support payments an additional fifty dollars to $700 per month.
In March of 1983, almost two years later and after the alimony obligations had terminated, the former husband, a physician, filed a motion seeking modification of child support. He stated that he was no longer practicing medicine and that he was without income. He further stated that he had been forced to resign from his medical practice. The former wife responded by filing two separate motions. First, she responded generally to the allegations regarding the husband's inability to pay. Second, she requested that the husband be held in contempt and, in support of this, she detailed the husband's failure to comply with previous orders of the court. Her motion alleged that the former husband was behind in his child support payments; that he had failed to maintain the life insurance policy; and that he had not satisfied his obligations concerning medical care for the child. Both motions were filed approximately two months after the husband's, and several months before the November, 1983 hearing. By the time of the hearing, the situation had worsened. The former husband was then almost $9,000 in arrears.
On November 17, 1983, a hearing was held on the parties' motions. The court heard testimony from both parties, the wife's attorney, and from a woman who was about to marry the former husband. The testimony predictably focused on the former husband's debts, assets and earning potential. Subsequent to the hearing, the court issued an order providing as follows:
1. It having been clearly established that Respondent [former husband] is not in deliberate violation of previous Court Orders, Petitioner's Motion for Contempt is denied.
2. It having also been clearly established that Respondent does not have the present ability, but does have the future capacity to contribute to the support of the child of the parties, his Motion for Modification is granted, as follows:
A) Commencing January 1, 1984, Respondent's obligation for support of his daughter shall be reduced to the sum of $400.00 per month. Of that sum, Respondent shall pay the sum of $200.00 cash on the first day of each month, for 12 consecutive months. The other $200.00 of the $400.00 per month obligation shall accrue, and shall be included in the Judgment referred to in Paragraph C below.
B) Commencing January 1, 1985, Respondent shall pay the sum of $400.00 per month as support for his child, such payment to continue until said child attains majority, becomes self-supporting, or further Order of this Court.
C) Respondent's support obligations for the months of April through December 1983 (nine months at $700 per month--$8,200.00), together with $608.56, medical and dental expenses paid by Wife, and the $2,400.00 described in Paragraph A, above, all totaling $11,208.56, shall be paid by Respondent in 12 consecutive equal monthly installments of $934.05 each, commencing on the first day of the month following the termination of child support, as described in Paragraph B, above.
D) Respondent's other obligation per Judgment of Dissolution of Marriage, dated January 9, 1974, shall remain unchanged, (except only the obligation concerning life insurance on which the Court declines to rule).
E) The question of an award of attorney's fees and costs to either party is deferred to later hearing on Motion.
We first address the former wife's contention that the trial court erred in failing to find the former husband in contempt based on his non-compliance with the final judgment of dissolution and property settlement agreement. The Florida Supreme Court, in Faircloth v. Faircloth, 339 So.2d 650 (Fla.1976) established the definitive standard by which the propriety of a contempt finding is to be judged:
[A] trial judge must make an affirmative finding that either (1) the petitioner presently has the ability to comply with the order and willfully refuses to do so, or (2) that the petitioner previously had the ability to comply, but divested himself of that ability through his fault or neglect designed to frustrate the intent and purpose of the order.
Faircloth, 339 So.2d at 651. See also, Bowen v. Bowen, ...
To continue reading
Request your trial
-
Kutz v. Fankhanel
...rate of twelve percent per annum. The interest calculations and award are consistent with Florida law. See Applegate; Leone v. Weed, 474 So.2d 401 (Fla. 4th DCA 1985); Butchart v. Butchart, 469 So.2d 965 (Fla. 4th DCA 1985); Melvin v. Melvin, 391 So.2d 691 (Fla. 1st DCA 1980), rev. denied, ......
-
Vitt v. Rodriguez
...1993); Puglia v. Puglia, 600 So.2d 484, 486 (Fla. 3d DCA 1992); Larger v. Diaz, 595 So.2d 1092, 1094 (Fla. 3d DCA 1992); Leone v. Weed, 474 So.2d 401 (Fla. 4th DCA 1985); Shellmyer v. Shellmyer, 418 So.2d 477, 478 (Fla. 4th DCA 1982); Smithwick v. Smithwick, 343 So.2d 945 (Fla. 3d DCA 1977)......
-
Hirsch v. Hirsch, 94-48
...in the father's income was voluntary, it was error for the court to reduce the father's child support obligation. See Leone v. Weed, 474 So.2d 401, 404 (Fla. 4th DCA 1985). See also Thomas v. Thomas, 589 So.2d 944, 947 (Fla. 1st DCA 1991); Waskin v. Waskin, 484 So.2d 1277, 1277-78 (Fla. 3d ......
-
Tietig v. Boggs, 90-2157
...trial court properly enforced the child support obligations of the final judgment of marriage dissolution. See, e.g., Leone v. Weed, 474 So.2d 401 (Fla. 4th DCA 1985); Meltzer v. Meltzer, 356 So.2d 1263 (Fla. 3d DCA 1978), cert. denied, 370 So.2d 460 (Fla.1979); Brown v. Brown, 315 So.2d 15......