Scott v. Scott

• Decision Date: 02 November 1973
• Docket Number: No. 73--125,73--125
• Citation: Scott v. Scott, 285 So.2d 423 (Fla. App. 1973)
• Parties: Herbert W. SCOTT, Appellant, v. Marion Waterhouse SCOTT, Appellee.
• Court: Florida District Court of Appeals

Page 423

285 So.2d 423

Herbert W. SCOTT, Appellant, v. Marion Waterhouse SCOTT, Appellee.

No. 73--125.

District Court of Appeal of Florida, Second District.

Nov. 2, 1973.

Rehearing Denied Dec. 6, 1973.

Charles E. H. Beck, of DiVito & Beck, St. Petersburg, for appellant.

Edward A. Turville, of McClure & Turville, St. Petersburg, for appellee.

COWART, JOE A., Jr., Associate Judge.

When, after 28 years of marriage, during which the wife was not employed outside the home, the parties were divorced in December, 1970, the final judgment ratified, confirmed and approved their separation agreement in which the appellant-husband agreed to pay the appellee-wife $500 per month for one year and $400 per month thereafter as long as both lived and the wife did not remarry. On September 18, 1972, the appellant-husband filed his petition for modification under F.S. § 61.14, F.S.A.1971. At the hearing on said petition both parties filed financial statements (R.C.P. Rule 1.611 and form 1.975, 31 F.S.A.) and stipulated to their accuracy. The circuit judge declined to hear testimony and requested memorandums of law as to whether reduction of the support payments would be proper under these circumstances. Thereafter the appealed order denying modification was entered without further hearing.

The order denying modification does not specify the reasoning for the conclusion reached and thus appellant-husband assumes that the circuit judge erroneously concluded he lacked jurisdiction to modify the support provisions in the final judgment because it was based on a negotiated agreement between the parties or that if the circuit judge had jurisdiction he abused his discretion in declining to modify suppot on the basis of a change of circumstances in that the wife now has a job from which she nets $74.73 per week. While the appellee-wife did modestly suggest below that the circuit court lacked jurisdiction to modify a judgment that did not determine or award alimony support but merely approved a property settlement agreement, on appeal the bare authority and jurisdiction of the circuit court to modify such support provision has been conceded. See Risteen v. Risteen, Fla.App.1973, 280 So.2d 488.

The appellant argues that the income of the wife Alone is such a change of circumstances as to not only justify a modification of alimony but to render a denial of modification an abuse of judicial discretion. The appellee argues the agreed reduction in monthly support payments contemplated the future employment of the wife and that the support provisions were contained in and a part of the property settlement agreement.

The appellant cites Chord v. Chord, Fla.App. 3rd 1968, 209 So.2d 281, for the proposition that when a change of circumstances is clearly shown a petition to modify alimony cannot be denied....