Newsome v. Newsome

• Decision Date: 13 September 1984
• Docket Number: No. AW-91,AW-91
• Citation: 456 So.2d 520
• Parties: Claire Delores NEWSOME, Appellant, v. Leslie Leonard NEWSOME, Jr., Appellee.
• Court: Florida District Court of Appeals

Page 520

456 So.2d 520

Claire Delores NEWSOME, Appellant, v. Leslie Leonard NEWSOME, Jr., Appellee.

No. AW-91.

District Court of Appeal of Florida,

First District.

Sept. 13, 1984.

William H. Maness, of Maness & Kachergus, Jacksonville, for appellant.

Harry L. Shorstein, Jacksonville, for appellee.

ZEHMER, Judge.

On this appeal, we review an order denying the former wife's motion to modify alimony provisions in a final judgment of dissolution of marriage. The issue, simply stated, is whether, as appellee contends, the final judgment provides for lump-sum alimony in the nature of a final property settlement not subject to modification or whether, as appellant contends, the judgment provides periodic alimony for rehabilitative purposes that is subject to extension or modification as to character and amount. We reverse.

The final judgment of dissolution, rendered November 6, 1978, which incorporated the stipulation and agreement of the parties, provided for payment of alimony to the wife in the following language:

The husband shall pay to the wife, as and for alimony the sum of $5,000.00 per year payable at the end of the last pay period of November for each year beginning in November of 1978 and continuing until November of 1983 inclusive or until the wife remarries or dies. In addition the husband shall pay to the wife, as and for alimony, the sum of $100.00 per week beginning on the first Friday following the entry of the Final Judgment of Dissolution of Marriage and continuing until the last Friday in the month of October 1983 or until the wife remarries or dies.

The final judgment, based on the settlement stipulation, also distributed the real and personal property owned by the parties at the time of dissolution, required the husband to assume certain debts, and specifically provided: that the former wife should have custody of the couple's minor daughter, then age twelve; that the husband would pay child support of $25 per week until the child attains majority or otherwise becomes emancipated; that the husband and wife would share evenly the college expenses of the minor child; that the husband would keep in effect his Veterans Administration life insurance policy and name the wife as irrevocable beneficiary; and that "the Court shall retain jurisdiction to enforce or modify the provisions hereof."

Appellant's motion to modify alleged, in general, that the husband's income had substantially increased; that her income was insufficient to cover her expenses and those of the minor child; that she did not have funds to pay for the minor child's education, as provided in the final judgment; and that she "has not been rehabilitated," although she is presently attending Florida Junior College in an effort to obtain a degree. Appellant asked the court to modify the provisions for child support and payment of the child's college expenses and, further, asked that the alimony payments due to terminate in October and November 1983 be increased in amount and made permanent.

The trial court denied the requested modification, ruling that the evidence did not support the former wife's claim that the alimony was rehabilitative in character and that she had not shown by competent evidence that she had not rehabilitated herself through no fault of her own. The court declined to modify the parties' agreement that each would share equally in the child's college expenses, but ordered an increase in child support to $100 per week. ¹ Appellant filed a motion for rehearing, which was denied by the trial court with the following explanation:

The 'alimony' provided for the wife by the Stipulation and Final Judgment was uncategorized and the amount and payment thereof is more consistent with lump sum alimony, and the Courts regards (sic) it as such since there was no evidence before the Court at the hearing which would help the Court categorize the same or make a finding that it was rehabilitative in nature.

We hold that the trial court erred as a matter of law in construing the parties' agreement as incorporated in the final judgment to provide for "lump sum alimony" that is not subject to extension or modification and in refusing to treat the periodic alimony provisions as rehabilitative in nature and purpose. The test for determining whether alimony provisions are nonmodifiable lump-sum alimony has been succinctly described in 25 Fla.Jur.2d, Family Law, section 449:

A lump-sum alimony award discharges the payor from further liability for the recipient party's support. An award of lump-sum alimony vests in the recipient at the time of the final decree of dissolution and is not subject to defeasance or modification. Lump-sum alimony is essentially payment of a definite sum and is in the nature of a final property settlement; hence, an award of lump-sum alimony creates a vested right which survives death and is not terminable on the recipient party's remarriage.

Accord, Canakaris v. Canakaris, 382 So.2d 1197 (Fla.1980); Cann v. Cann, 334 So.2d 325 (Fla. 1st DCA 1976). The provisions of the stipulated agreement and final judgment that alimony payments would continue "until the wife remarries or dies" are completely inconsistent with the notion that the parties intended a final, fixed lump-sum settlement that was not subject to further extension or modification pursuant to section 61.14, Florida Statutes. Wolfe v. Wolfe, 424 So.2d 32 (Fla. 4th DCA 1983). When the husband and wife intend to reach a final and complete settlement of all alimony rights and to forego any further right to modification thereof, such agreement must be specifically expressed by clear language evidencing an intent to waive all such rights in the future. E.g., Turner v. Turner, 383 So.2d 700 (Fla. 4th DCA 1980); Wolfe v. Wolfe, 424 So.2d 32, 34, n. 1 (Fla. 4th DCA 1983); ...