Malone v. Malone

• Decision Date: 20 May 1994
• Docket Number: No. 93-833,93-833
• Citation: Malone v. Malone, 637 So.2d 76 (Fla. App. 1994)
• Parties: 19 Fla. L. Weekly D1133 Linda C. MALONE, Appellant, v. Francis J. MALONE, Appellee.
• Court: Florida District Court of Appeals

Page 76

637 So.2d 76

19 Fla. L. Weekly D1133

Linda C. MALONE, Appellant, v. Francis J. MALONE, Appellee.

No. 93-833.

District Court of Appeal of Florida Fifth District.

May 20, 1994.

John D. Mahaffey, Jr., Orlando, for appellant.

Michelle T. Morley, Tavares, for appellee.

GOSHORN, Judge.

The former wife appeals the dismissal of her motion for the former husband to show cause why he should not be held in contempt for failure to pay child support in accordance with the parties' separation agreement which had been incorporated into their final judgment of dissolution of marriage. We reverse.

On November 19, 1984, the former wife filed a petition for dissolution of marriage. On March 27, 1985, the trial court rendered its final judgment incorporating the terms of a separation and property settlement agreement entered into by the parties on January 27, 1984. The judgment was not appealed. The agreement in pertinent part, provided:

Realizing the increases in the cost of living, it is understood and agreed that in the event the Husband receives an increase in compensation, the child support provided for herein shall be increased by an amount equal to twenty percent (20%) of such increase in compensation.

Various controversies arose between the parties, and the former wife ultimately filed the motion which is the subject of this appeal. The former husband moved to dismiss the motion, contending that automatic increases in child support are improper and thus unenforceable. The trial court agreed and dismissed the former wife's motion with prejudice.

We begin our analysis with the acknowledgment that the appellate courts in this state routinely reverse provisions in dissolution judgments which provide for automatic adjustments of support obligations. The rationale that has evolved is that an automatic increase in support lacks a foundation evidencing that need and ability to pay have substantially changed. See Kangas v. Kangas, 420 So.2d 115 (Fla. 2d DCA 1982) (order requiring unemployed husband to pay $10 per week per child to be increased to $35 per child on becoming employed reversed because there was no evidentiary basis for the determination of future events); Stoler v. Stoler, 376 So.2d 253 (Fla. 3d DCA 1979) (order requiring increase in support based on cost of living index reversed because, although it might be beneficial, it might not), cert. denied, 389 So.2d 1115 (Fla.1980); Reid v. Reid, 365 So.2d 1050 (Fla. 4th DCA 1978) (order providing for $25 child support and $25 alimony with alimony to increase to $50 when child support ceases reversed because husband would be paying $50 whether or not wife had custody); Richter v. State, 344 So.2d 889 (Fla. 4th DCA 1977) (error to award automatic yearly 5% cost of living increase); McNaughton v. McNaughton, 332 So.2d 673 (Fla. 3d DCA) (abuse of discretion to order successive reductions in alimony where record reveals no basis for reductions), cert. denied, 345 So.2d 424 (Fla.1977).

These cases are distinguishable from the instant case, however, in that none of the judgments incorporated the settlement agreement. In this case, the former husband agreed to the automatic increase and the final judgment incorporating that agreement was not appealed. While...