Mills v. Mills

• Citation: 339 So.2d 681
• Decision Date: 17 November 1976
• Docket Number: No. BB--169,BB--169
• Parties: E. Richard MILLS, Jr., Appellant, v. Martha B. MILLS, Appellee.
• Court: Florida District Court of Appeals

Page 681

339 So.2d 681

E. Richard MILLS, Jr., Appellant, v. Martha B. MILLS, Appellee.

No. BB--169.

District Court of Appeal of Florida, First District.

Nov. 17, 1976.

Herbert T. Schwartz of Schwartz & Dearing, Gainesville, for appellant.

Lynn James Hinson of Turnbull, Abner & Daniels, Winter Park, for appellee.

PER CURIAM.

This is an appeal from a judgment on the pleadings entered against the appellant/husband on his petition for modification.

In 1971 the parties entered into a 'Separation and Property Settlement Agreement.' Shortly thereafter, they were divorced, and the agreement was approved and confirmed in the final judgment of dissolution. Among the provisions of the agreement were the requirements for the payment of funds into a trust in order to pay the premiums on the husband's life insurance policies of which the wife was the beneficiary and for the payment of substantial alimony to the wife through the trustee.

Four years later, the husband filed a petition for modification of final judgment in the same proceeding alleging that he had recently discovered facts which if known at the time of the execution of the settlement agreement and the entry of the judgment of dissolution would have precluded his agreement or acquiescence to the entry of the court's order. The petition stated in pertinent part:

'3. The property settlement agreement was entered into by Petitioner in the belief that the Wife (hereafter referred to as Respondent) suffered from a debilitating cardiac condition which would impair her ability to maintain herself. Terms of said agreement pertaining to payment of alimony and the creation of a trust were predicated upon the same belief.

'4. Your Petitioner is now aware of recently discovered medical evidence which would obviate Respondent's need to be totally maintained and supported by alimony from Petitioner. Further, the basis upon which the aforesaid trust was established (paragraph 3 of the property settlement agreement) no longer is viable. Requirements of medical support thought to be necessary for reason of Respondent's cardiac condition are not, nor were they ever obliged by facts.

'5. Such facts, recently learned by the Petitioner, were not discoverable or extant at the time of this Court's Final Judgment.

'6. The needs of the Respondent for alimony have thus decreased since entry of the Final Judgment and, the ability of Petitioner to pay alimony sums specified in the property settlement agreement has decreased.'

The petition concluded with a prayer for the court to modify the alimony payments and to dissolve the trust in favor of a provision for the direct payment of alimony to the wife. The wife filed a response admitting that she had a heart condition when the settlement agreement was executed but denying the other pertinent provisions of the petition. Thereafter, the court entered an order granting the wife's motion for judgment on the pleadings.

The function of a motion for judgment on the pleadings is to raise questions of law arising out of the pleadings. Wagner v. Wagner, 196 So.2d 453 (Fla.4th DCA 1967). In considering a motion for judgment on the pleadings, all well-pleaded material allegations of the opposing party's pleadings are taken to be true and all allegations of the moving party which have been denied are taken as false. Miller v. Eatmon, 177 So.2d 523 (Fla.1st DCA 1965). Since conclusions of law are not deemed admitted, such a judgment may be granted if on the facts as admitted the moving party is clearly entitled to a judgment. Miller v. Eatmon, supra. On the basis of the admitted facts in these pleadings, the wife was entitled to a judgment on the pleadings.

The husband contends that he is entitled to seek a modification of the alimony payments under Section 61.14, Florida Statutes (1975), yet it is obvious from a study of the Separation and Property Settlement Agreement that this instrument was more than 'an agreement for payments for, or instead of support, maintenance or alimony' which is subject to modification under that statute. The agreement contained provisions whereby the wife gave up her interest in certain joint bank accounts and savings accounts and...