Luedke v. Behringer

• Decision Date: 06 July 1962
• Docket Number: No. 2880,2880
• Citation: Luedke v. Behringer, 143 So.2d 218 (Fla. App. 1962)
• Parties: Margaret C. LUEDKE, Appellant, v. John Claud BEHRINGER, Appellee.
• Court: Florida District Court of Appeals

Page 218

143 So.2d 218

Margaret C. LUEDKE, Appellant, v. John Claud BEHRINGER, Appellee.

No. 2880.

District Court of Appeal of Florida, Second District.

July 6, 1962.

Dorothy A. Smith, Fort Lauderdale, for appellant.

McCune, Hiaasen, Crum & Ferris, Fort Lauderdale, for appellee.

WHITE, Judge.

Margaret C. Luedke, plaintiff below, appeals an order denying her prayer for a judgment for alleged 'arrears' in child support but requiring the defendant to increase his payments for child support from $100.00 to $125.00 per month. The chancellor found and adjudged as follows:

'* * * 1. Plaintiff and defendant are the parents of a minor child named Scharlyn. Pursuant to a divorce decree dated September 2, 1948, and entered by the Circuit Court of Milwaukee County, State of Wisconsin, the parties were divorced and defendant was directed to pay as support money to the plaintiff and the minor child the sum of $6000.00 per annum, payable in twelve installments of $500.00 each. The decree also provided that in the event of remarriage of plaintiff the defendant should pay reasonable expenses of support, maintenance and education of the minor child, the amount of such expense, in the event of a dispute to be determined by the Circuit Court of Milwaukee County, State of Wisconsin, in accordance with the settlement agreement.

'2. Thereafter, on September 7, 1950, plaintiff remarried. On March 24, 1951 the parties entered into an agreement (Defendant's Exhibit #1) whereby the judgment of divorce dated December 2, 1948 was amended as to alimony, the defendant Behringer would continue to pay $500.00 each month up to and including April 15, 1951. The agreement further provided that after April 15, 1951 the defendant would pay to plaintiff $180.00 [sic but record shows $100.00] per month as and for support money for Scharlyn and that he would pay any and all unusual and extraordinary medical expenses. The modification also stipulated that the agreement should not modify the original agreement approved by the Court except as it related to the amount of money to be paid by the defendant for use and benefit of plaintiff. There is no indication that this modification was ever ratified by the Wisconsin Court.

'3. Admittedly, as to the modification agreement, defendant paid $500.00 per month until April 15, 1951 and since that time until September of 1958 the defendant paid $100.00 per month. In 1958 defendant paid plaintiff $771.62 together with $2576.31 for support and maintenance while the daughter was in camp or boarding school. In 1959 defendant spent in excess of $2300.00 for the support and maintenance of the minor--some going to the plaintiff, other for the benefit of the child at school.

'4. In 1960 the defendant paid $1200.00 for support of Scharlyn.

'5. It is the opinion of the Court that the minor child of the parties required an increase in support and that the defendant is able to increase the monthly payment to plaintiff for support of Scharlyn.

'Accordingly, it is

'ORDERED, ADJUDGED AND DECREED that:

'1. Plaintiff's prayer for a judgment for arrears in child support be and the same is hereby denied, it having been shown by competent evidence that the defendant is not delinquent.

'2. The Defendant shall pay to the Plaintiff for the support and maintenance of the minor child of the parties the sum of $125.00 per month, the first payment to commence on October 1, 1961 and continue each month thereafter. In addition thereto the Defendant should pay any unusual or extraordinary medical expenses for said child.

'3. Plaintiff's prayer for attorney's fees be and the same is hereby denied.'

The chancellor's findings of fact as above set forth are not in question. The plaintiff, however, contends that the parties' agreement of March 24, 1951, subsequent to the decree, regarding the maintenance and education of their minor daughter was not a legally binding agreement and that the payments made, even though pursuant to such agreement, were in fact insufficient and that the circumstances justify a judgment against the defendant for arrearage. The chancellor's refusal to enter judgment with respect to past support is sustained by the trend of decisions in similar cases. See Dutcher v. Dutcher, 103 Kan. 645, 175 P. 975; Annotation 84 A.L.R. 299. It is notable in this connection that the original Wisconsin decree provided for lump sum monthly payments covering both alimony and child support, no particular sum being specified with reference to child support.

The prime considerations in this case are the interests and prospective welfare of the minor daughter, now sixteen years of age. It was shown that the defendant father provided for her as agreed by paying the stipulated amounts of child support and additional expenses. The parties agreed to a modification of the requirements as set forth in the original decree, and at the time of the instant suit each party had honored the new arrangement. It was not shown that the daughter suffered during the interim, and we find no basis for disturbing the chancellor's refusal to enter judgment for the claimed deficiency or 'arrearage' of child support.

The plaintiff next contends that the prospective part of the chancellor's order awarding $125.00 a month for future child support was grossly inadequate in view of the evidence. The chancellor found that the requirements of child support justified an increase from $100.00 per month and that the defendant was able to pay such increase. The defendant...