Van Loon v. Van Loon

• Decision Date: 05 May 1938
• Citation: Van Loon v. Van Loon, 132 Fla. 535, 182 So. 205 (Fla. 1938)
• Court: Florida Supreme Court
• Parties: VAN LOON v. VAN LOON.

182 So. 205

132 Fla. 535

VAN LOON v. VAN LOON.

Florida Supreme Court

May 5, 1938

Rehearing Denied June 15, 1938.

Proceeding by Isabel Van Loon against W. E. Van Loon for a money judgment for overdue alimony payments, and for an adjudication that W. E. Van Loon is guilty of contempt.From an adverse decree, W. E. Van Loon appeals.

Affirmed.

On Petition for Rehearing.Appeal from Circuit Court, Dade County; Worth W. Trammell, judge.

COUNSEL

Kehoe &amp Kehoe, of Miami, for appellant.

Gordon McCauley and J. C. Durrance, both of Jacksonville, and Kunkel & White, of Miami, for appellee.

OPINION

WHITFIELD Presiding Justice.

In a decree of divorce granted in 1929 to the wife, Isabel Van Loon, on the ground of the habitual indulgence in violent and ungovernable temper by the husband towards the wife, it is ordered 'that the plaintiff be and she is hereby awarded the sum of $50.00 per month as permanent alimony,' to be paid by the defendant, W. E. Van Loon.

In 1936, Isabel Van Loon filed a petition in the cause in which she in effect alleged that W. E. Van Loon paid three installments of the alimony decreed, and 'that said defendant is now in default for 81 months or in the total sum of $4,050.00.'

The petition contains the following:

'9.That the complainant is without income or income property and is in dire need of the money awarded for her by this Honorable Court, and she is convinced that the defendant could many times, if not all of the time, have made the payments so ordered by said decree, but failed and refused to do so.

'10.This petitioner believes the defendant is financially able to pay the money decreed to be paid by him, but he refuses as he has consistently done heretofore to comply with the order and decree of this court.

'11.This petitioner further petitions this Honorable Court that if upon a hearing of this cause this Honorable Court should find that the defendant is unable to pay all the money found to be due and unpaid the complainant, that the complainant be awarded a judgment for all said sums as found due her which the defendant is found unable to pay and that an order of execution on said judgment may be granted.

'(a) Your petitioner therefore prays that this Honorable court will issue or cause to be issued a rule in this cause, directing and requiring the defendant, W. E. Van Loon, to show cause, if any he can, within a reasonable time to be fixed by this Court, why he, the said defendant, W. E. Van Loon, should not be adjudged in contempt of this Court, and be punished accordingly until he shall have complied with the decree of this Court aforesaid.

'(b) This petition prays further that if upon a hearing of this matter this Honorable Court should find that the defendant is unable to pay all the money found to be due and unpaid to the complainant, that this Honorable Court will award to the complainant a money judgment for such sums due complainant, which the defendant is unable to pay and that an execution be granted thereon.'

A rule to show cause was issued and served on W. E. Van Loon, who filed an answer to the rule averring facts and circumstances designed to show his inability to make the alimony payments and, with apologies for his unavoidable failure to comply with the alimony decree, asked that the rule be dismissed and the defendant discharged and granted relief from the alimony payments he is unable to make because of financial embarrassments.

Later, the defendant filed a petition alleging facts in support of the prayer:

'That because of his changed financial condition and standing and ability to comply with the final decree entered in this cause on the 1st day of October, A.D. 1929, and because of your petitioner's inability to pay the amounts due under the said final decree and that have become due under said decree, your petitioner prays that this Honorable Court enter an order modifying the said final decree and relieving your petitioner from the payment of any sums due thereunder or that have become due thereunder.'

The court rendered the following decree:

'This cause coming on to be heard upon the petition of the plaintiff for rule to show cause, the return of the Sheriff upon said rule, the answer of the defendant to said rule to show cause, and the petition of the defendant for an order modifying the final decree herein, and the same having been duly argued by counsel and considered by the Court, upon consideration thereof;

'It is ordered, adjudged and decreed that the defendantW. E. Van Loon, at the time of the filing of plaintiff's said petition herein was and is in arrears of the payments ordered by this Court to be paid to the plaintiff, in the sum of Four Thousand Fifty Dollars ($4,050.00), and it appearing unto this Court that said defendant is entitled to pay the said amount herein found to be due and payable to the plaintiff at this time, therefore, it is

'Further ordered, adjudged and decreed that the plaintiff, Isabel Van Loon, be and she is entitled to a judgment against the defendant, W. E. Van Loon, for the sum of $4,050.00.

'It is further ordered, adjudged and decreed that the plaintiff, Isabel Van Loon, do have and recover from the defendant herein, W. E. Van Loon, the sum of $4,050.00 for which let execution issue.

'It is further ordered, adjudged and decreed that the said petition of the defendant for an order modifying the said final decree be and the same is hereby denied insofar as the same applies to any payments which were in default at the time of the filing of the plaintiff's petition herein; insofar as payments falling due under said final decree in the future, it is hereby further ordered, adjudged and decreed that Ross Williams be and he is hereby appointed Special Master of this Court to take testimony herein as to whether or not the defendant should be awarded relief as to future payments and that said Master report his findings of fact and law to this Court with all convenient speed.'

An appeal was taken from the decree by defendant.

Apparently the decree was rendered upon the theory that the court had no authority to deny the plaintiff wife a decree for the past due and unpaid alimony installments, treating them as vested rights that are not subject to judicial reduction or cancellation because of changed financial resources and necessities of the parties to the divorce decree.

When the divorce decree awarding alimony was rendered in 1929, the following statute was in force:

'In every decree of divorce in a suit by the wife, the court shall make such orders touching the maintenance, alimony and suit money of the wife, or any allowance to be made to her, and if any, the security to be given for the same, as from the circumstances of the parties and nature of the case may be fit, equitable and just.'Section4987(3195), C.G.L.

When the defendant's answer to the rule in contempt was filed November 21, 1936, and when his petition for relief from alimony payments was filed March 17, 1937, the following statute, chapter 16780, Acts 1935, was in force:

'An Act Authorizing the Circuit Courts of the State of Florida to Modify or Confirm Payments for, or in Lieu of, Separate Support, Maintenance or Alimony, in Accordance with Voluntary Agreements Between Husband and Wife, or Pursuant to Decree of Court of Competent Jurisdiction, and Prescribing the Venue in Which Applications for This Purpose May be Instituted.

'Be it Enacted by the Legislature of the State of Florida:

'Section 1.Whenever any husband and wife heretofore, or hereafter shall have entered into any agreement providing for the payments for, or in lieu of, separate support, maintenance or alimony, whether in connection with any action for divorce or separate maintenance, or with any voluntary property settlement, or whenever any husband has pursuant to the decree of any court of competent jurisdiction been required to make to his wife any such payments, and the circumstances of the parties or the financial ability of the husband shall have been changed since the execution of such agreement, or the rendition of such decree, either party may apply to the Circuit Court of the Circuit in which the parties, or either of them, shall have resided at the date of the execution of such agreement, or shall reside at the date of such application, or in which such agreement shall have been executed, or in which such decree shall have been rendered, for an order and judgment decreasing or increasing the amount of such separate support, maintenance or alimony, and the Court, after giving both parties an opportunity to be heard, and to introduce evidence relevant to the issue, shall make such order and judgment as justice and equity shall require, with due regard to the changed circumstances and the financial ability of the husband, decreasing or increasing or confirming the amount of separate support, maintenance or alimony provided for in such agreement, or in such decree, and thereafter the husband shall pay and be liable to pay the amount of separate support, maintenance or alimony directed in such order and judgment, and no other or further amount, and such agreement, or such decree, for the purpose of all actions or proceedings of every nature and wherever instituted, whether within or without this State, shall be deemed to be, and shall be, modified accordingly, and it shall be unlawful to commence, or cause to be commenced as party, or attorney, or agent, or otherwise, in behalf of either party in any court any action or proceeding otherwise than as herein provided, nor shall any court have jurisdiction to entertain any action or proceeding otherwise than as herein provided to enforce the recovery of separate support, maintenance or alimony...