Pratt v. Pratt, 94-745

• Decision Date: 26 October 1994
• Docket Number: No. 94-745,94-745
• Citation: 645 So.2d 510
• Parties: 19 Fla. L. Weekly D2265 Joseph S. PRATT, Appellant, v. Juanita PRATT, Appellee.
• Court: Florida District Court of Appeals

Page 510

645 So.2d 510

19 Fla. L. Weekly D2265

Joseph S. PRATT, Appellant, v. Juanita PRATT, Appellee.

No. 94-745.

District Court of Appeal of Florida,

Third District.

Oct. 26, 1994.

Rehearing Denied Dec. 14, 1994.

Lesperance Lesperance & Lesperance, Richard M. Gale, Miami, for appellant.

Mercedes Busto, Coral Gables, for appellee.

Before HUBBART, COPE and LEVY, JJ.

PER CURIAM.

This is an appeal by the husband Joseph S. Pratt from (1) a final order denying his motion to modify downward the alimony payments provided for in the marital settlement agreement entered into by the parties and incorporated in the final judgment of marital dissolution previously entered by the trial court, and an order entered upon rehearing of said order; and (2) a final order finding the husband in contempt for alimony arrearages and entering a final monetary judgment thereon in favor of the wife Juanita Pratt. We affirm with one modification.

1. The trial court determined that the marital settlement agreement was not subject to modification on the theory that the subject agreement is, in effect, a property settlement agreement, in which the wife gave up her interest in jointly held realty in exchange for the alimony payments under the agreement. We disagree because the agreement requires the husband to make alimony payments to the wife for the remainder of the wife's life, and it therefore cannot be considered a sum certain which was given to the wife in exchange for a comparable relinquishment of property rights; clearly, a lifetime of alimony payments is more in the nature of support for the wife. Indeed, the agreement denominates the payments as "permanent, periodic alimony" and specifically states that such alimony is given "because of the long duration of the marriage, the wife's contribution to same and her lack of work experience"--traditional factors for awarding permanent alimony. Sec. 61.08, Fla.Stat. (1991); Ugarte v. Ugarte, 608 So.2d 838, 839 (Fla. 3d DCA 1992), cause dismissed, 617 So.2d 322 (Fla.1993); Green v. Green, 484 So.2d 1269, 1270 (Fla. 3d DCA 1986); Colucci v. Colucci, 392 So.2d 577 (Fla. 3d DCA 1980). There is nothing in the agreement which states that the alimony is given for the wife's relinquishment of property rights. Moreover, the agreement further provides that if the wife secures employment with the family business, her monthly alimony is to be reduced by whatever she earns; this further supports our conclusion that the alimony payments were meant to meet her living expenses, as such payments must be reduced in the event she acquires a particular source of income to meet these expenses. The alimony payments provided in the marital settlement agreement were therefore entirely modifiable upon a proper showing of a change of circumstances, and the trial court's contrary determination must be set aside. See Joyce v. Joyce, 563 So.2d 1126, 1127 (Fla. 1st DCA 1990); Petty v. Petty, 548 So.2d 793, 795 (Fla. 1st DCA 1989).

2. The trial court further determined, as an alternative basis for its decision, that even if the marital settlement agreement was modifiable as to its alimony provisions, the husband had failed to establish a substantial change in his financial circumstances to warrant a reduction of alimony. We entirely agree and, in this respect, accept the trial court's well-reasoned analysis of this point in the order denying modification:

"Initially, where the alimony sought to be modified was set by the court upon an agreement of the parties, the party who seeks a change carries a heavier than usual burden of proof. Pimm v. Pimm, 601 So.2d 534, 537 (Fla.1992). Under this burden, the Husband must show that there has been a substantial change in circumstances; that the change was not contemplated at the time of Final Judgment of Dissolution, and that the change is sufficient, material, involuntary, and permanent in nature. Pimm, supra, 601 So.2d at 536. ¹ Moreover, the reduction must not be for the purpose of evading alimony. Denny v. Denny, 334 So.2d 300 (Fla. 1st DCA 1976).

The Husband argues that there has been a substantial change of circumstances due to his retirement, and that, therefore, he has substantially reduced his income to his social security payments and farm income. In regard to the farm income, he further contends that his income is presently non-existent due to the impact of Hurricane Andrew on the farm crops. Citing Pimm, he further argues that the fact that the Marital Settlement Agreement did not address retirement is not dispositive, and that the Court should reduce his obligation based on the criteria set forth by the Florida Supreme Court in Pimm, at 601 So.2d at 537. Here, the Husband argues that the Wife will not be in the 'peril of poverty' due to the value of the real property equitably distributed to her.

While the Husband argues a downward change in his income, the Court has received evidence that...