Petty v. Petty, 88-549

• Decision Date: 06 September 1989
• Docket Number: No. 88-549,88-549
• Citation: 548 So.2d 793,14 Fla. L. Weekly 2098
• Parties: 14 Fla. L. Weekly 2098 Virginia S. PETTY, Appellant, v. Eligia Jim PETTY, Appellee.
• Court: Florida District Court of Appeals

Page 793

548 So.2d 793

14 Fla. L. Weekly 2098

Virginia S. PETTY, Appellant, v. Eligia Jim PETTY, Appellee.

No. 88-549.

District Court of Appeal of Florida,

First District.

Sept. 6, 1989.

Mark Evan Frederick, P.A., Destin, for appellant.

Ted A. Stokes, Milton, for appellee.

JOANOS, Judge.

The former wife appeals an order of the trial court granting the former husband's petition for modification of a property settlement agreement. The issues for our review are: (1) whether the trial court erred in construing the parties' support agreement as child support rather than alimony, and (2) whether the trial court erred in modifying the permanent alimony award absent a showing of a substantial change of circumstances. We reverse.

The marriage between the parties was dissolved by final judgment of dissolution entered on March 21, 1975. The final judgment incorporated the child custody and property settlement agreement entered into by the parties, which the trial court found had been executed voluntarily after full disclosure. The agreement sets forth details concerning division of the property owned by the parties, both real and personal, together with an express provision that the wife should receive "as permanent alimony the husband's monthly civil service retirement check." The alimony provision of the agreement further specified that

[i]t is specifically understood that the wife shall provide for the maintenance and support of the minor children born of this marriage and shall apply the proceeds of the alimony payment toward said support as the wife in her sole discretion determines to be necessary. In the event the wife remarries, and the alimony payment thereby terminates, the parties hereto agree to petition the Court for a determination of the amount of child support to be paid by husband.

On April 13, 1976, the former husband filed the first of several petitions for modification of the alimony provision contained in the final judgment. By order entered November 8, 1976, the alimony provision was modified to provide that "the wife shall receive as permanent alimony $531.65. Said check shall be received monthly until such time as the wife remarries or dies." In all other respects, the final judgment, including the grounds for termination of alimony, remained the same.

Thereafter, on occasion, from April 1979 up until the entry of the order which is the subject of this appeal, the former husband continued his efforts to effect a reduction in the alimony payments, while the wife filed motions for contempt due to the husband's failure to pay alimony according to the terms of the agreement as modified by the 1976 order. The wife also filed a counter petition predicated on a substantial change of circumstances, which petition alleged that, due to the wife's deteriorating health, her need for financial assistance had increased and her ability to support herself had decreased.

The trial court's order found the former husband in arrears in alimony and child support, but denied the former wife's motion for contempt based on a further finding that the husband's failure to pay was not willful, wanton, or malicious. The trial court also denied the wife's counter petition for modification. Subsequently, the trial court denied another motion for contempt against the former husband, based upon the husband's failure to pay court ordered attorney's fees and costs.

On January 26, 1988, the trial court entered an order on the husband's petition for modification. The 1988 order from which this appeal is taken does not purport to modify the alimony provision of the final judgment of dissolution. Rather, the order construes the term "alimony" to mean "child support." The trial court found that the parties' children were no longer minors, and on this basis ruled that the husband was no longer required to make alimony or child support payments to the wife.

It is well settled that "[a] pure property settlement agreement is not subject to modification by the trial court without the consent of the parties." Kirchen v. Kirchen, 484 So.2d 1308, 1311 (Fla. 2d DCA 1986). See also Cannon v. Morris, 407 So.2d 372, 373 (Fla. 1st DCA 1981). However, a property settlement agreement which also makes provision for periodic alimony is separable and modifiable insofar as the support portion of the agreement is concerned. Jantzen v. Cotner, 513 So.2d 683 (Fla. 3d DCA 1987); Stevens v. Stevens, 510 So.2d 332, 333 (Fla. 2d DCA 1987); Kirchen, 484 So.2d at 1311; 2 H. Clark, The Law of Domestic Relations in the United States § 17.6, at 275 (1987). The nature of the agreement must be determined by an examination of the language of the agreement, the surrounding circumstances, and the parties' apparent purpose when they entered into the agreement. Underwood v. Underwood, 64 So.2d 281, 288 (Fla.1953); Jantzen, 513 So.2d at 684, fn. 1. The test for determining when periodic payments constitute support or a methodology for division of property, seems to be whether the payor spouse's payments are given in exchange for a reciprocal exchange of property interests from the recipient spouse. In other words, the question is whether the recipient spouse bought and paid for the payments and is therefore entitled to receive them as written as a matter of contract. See Salomon v. Salomon, 196 So.2d 111 (Fla.1967); Jantzen, 513 So.2d at 684, fn. 1; Boyd v. Boyd, 478 So.2d 356, 358 (Fla. 3d DCA 1985), review denied, 488 So.2d 67 (Fla.1986).

In Jantzen, paragraphs A and B of the marital settlement agreement listed the properties to be owned by the husband and wife respectively after dissolution. The provision for payments to the wife was set forth separately in paragraph C, entitled "alimony." The court concluded that the arrangement and content of the provisions, with the obvious distinction between the listing of capital assets and the alimony clause, provided a strong indication that the latter provision was not given in partial exchange for the wife's rights. The court also found it significant that the payments at issue were treated as tax deductible by the husband, consistent with the tax treatment ordinarily given support payments. 513 So.2d at 684, fn. 1 and 2.

The party seeking reduction of an alimony award which arises from a property settlement agreement bears a heavy burden to justify such reduction. Ochs v. Ochs, 540 So.2d 190, 191 (Fla. 1st DCA 1989); De Poorter v. De Poorter, 509 So.2d 1141, 1144 (Fla. 1st DCA 1987). Such an agreement, entered into freely and voluntarily, may be modified only upon a showing of changed circumstances which are "sufficient, material, involuntary, and permanent in nature." Servies v. Servies, 524 So.2d 678, 680 (Fla. 1st DCA 1988) (emphasis in original). See also, Bish v. Bish, 404 So.2d 840 (Fla. 1st DCA 1981); Waldman v. Waldman, 520 So.2d 87 (Fla. 3d DCA 1987), review denied, 531 So.2d 169 (Fla.1988). Moreover, where the language of the agreement indicates a clear intention that the agreed-upon alimony provisions would be controlling and that its terms would be modifiable only as specified in the agreement, such language is sufficient to operate as an implied waiver of any other ground for modification. Ochs, 540 So.2d at 191; Cunningham v. Cunningham, 499 So.2d 880 at 882 (Fla. 1st DCA 1987). Similarly, the party seeking termination of permanent, periodic alimony in modification proceedings must show "a substantial change in the circumstances of one or both parties not contemplated at the time of the final judgment of dissolution, and it must be further shown that the moving party is no longer able to pay any amount of alimony, or that the recipient has no need for money." Brown v. Brown, 440 So.2d 16, 18 (Fla. 1st DCA 1983), (emphasis supplied). See also Servies, 524...