Servies v. Servies, BS-399

• Decision Date: 10 March 1988
• Docket Number: No. BS-399,BS-399
• Citation: 13 Fla. L. Weekly 636,524 So.2d 678
• Parties: 13 Fla. L. Weekly 636 James A. SERVIES, Appellant/Cross-Appellee, v. Ruth J. SERVIES, Appellee/Cross-Appellant.
• Court: Florida District Court of Appeals

Page 678

524 So.2d 678

13 Fla. L. Weekly 636

James A. SERVIES, Appellant/Cross-Appellee, v. Ruth J. SERVIES, Appellee/Cross-Appellant.

No. BS-399.

District Court of Appeal of Florida First District.

March 10, 1988.

Rehearing Denied May 27, 1988.

Nancy T. Gilliam, Cantonment, for appellant/cross-appellee.

R. Larry Morris, of Levin, Warfield, Middlebrooks, Mabie, Thomas, Mayes & Mitchell, Pensacola, for appellee/cross-appellant.

SHIVERS, Judge.

Appellant, James A. Servies, appeals the trial court's denial of his petition for termination of alimony; appellee, Ruth J. Servies, cross-appeals the trial court's order temporarily reducing alimony. We affirm the issues on appeal, but reverse the issue raised on cross appeal.

The record indicates that a final judgment of dissolution was entered on April 29, 1971, dissolving the parties' 25-year marriage. The final judgment incorporated a February 4, 1971 separation agreement which provided, among other things, that husband would pay $375 per month in alimony and $375 per month in child support until the two minor children (aged 18 and 10 at the time) reached majority, provide the cost of educating the two minor children through four years of college, and pay for wife's nurses training at Pensacola Junior College. Husband made regular alimony payments after entry of the final judgment, and continued to pay $375 in child support until the eldest of the two minor children reached majority. He then reduced the child support payment by one half, and voluntarily continued to pay the reduced amount for nearly five years after the youngest child reached majority in 1981.

At the time of the dissolution in 1971, husband was earning $21,559 per year as Director of Libraries for the University of West Florida in Pensacola, a position he had held for five years. By 1985, his reported income for the same position was $40,058.18. In April of 1986, husband voluntarily retired at the age of 60, and began receiving a net income of $1,007 per month. He stated that he retired so that he could complete an independent research project he had begun five years earlier (a complete bibliography of the State of Florida), and that he had been experiencing an increased loss of vision in one eye since 1982, making it "virtually impossible" for him to read. He also stated, however, that his early retirement was entirely voluntary, that he was not asked by the university to retire, that he could have continued working until age 62 or 65 had he so desired, and that he declined a 1986 offer from the president of the university to return to his former position. Wife completed her nurses training following the dissolution, began working in 1972 at a Pensacola hospital, and reported a 1985 income of $24,018.

Arguing a substantial change in circumstances in that he had retired while his ex-wife had become self-supporting, husband moved for termination of alimony in 1986. The trial court denied the motion after a hearing, but ordered husband's alimony payments be reduced to $175 per month until such time as the reduced payments satisfied the $10,962 in child support overages paid by husband after the youngest child reached majority.

We affirm the trial court's denial of husband's motion for termination of alimony. The party moving for 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 ... that the moving party is no longer able to pay any amount of alimony, or that the recipient has no need for alimony....