Withers v. Withers, 79-817

• Decision Date: 19 November 1980
• Docket Number: No. 79-817,79-817
• Citation: 390 So.2d 453
• Parties: Martha B. WITHERS, Appellant, v. Robert W. WITHERS, Appellee.
• Court: Florida District Court of Appeals

Page 453

390 So.2d 453

Martha B. WITHERS, Appellant, v. Robert W. WITHERS, Appellee.

No. 79-817.

District Court of Appeal of Florida, Second District.

Nov. 19, 1980.

John W. Boult, Tampa, for appellant.

Stephen W. Sessums of Albritton, Sessums & McCall, Tampa, for appellee.

HOBSON, Acting Chief Judge.

Appellant Martha B. Withers appeals a postdecretal order terminating alimony payments. She argues, inter alia, that evidence before the trial court failed to show a change of circumstances sufficient to justify termination of alimony. We agree and reverse.

The parties were divorced in January, 1964. The final judgment of dissolution provided $500 per month permanent alimony from appellee, Dr. Withers, to appellant. By a subsequent order dated January 29, 1969, the alimony was reduced to $450 per month.

In October, 1978, Dr. Withers filed a motion for termination of alimony payments grounded upon three assertions: 1) that children who were minors at the time of the initial decree were now adults; 2) that the wife was a registered nurse capable of full self-support without the assistance of alimony; 3) that the husband had paid the wife $30,000 in settlement of the wife's claim to an interest in certain real estate and stock.

The final order terminating alimony payments made the following findings of fact: 1) that the children of the parties were now adults; 2) that Dr. Withers was over sixty years of age and was not physically able to work as much as he did at the time of the final decree of divorce; 3) that Martha Withers was a registered nurse and was able to earn considerably higher wages now than she did several years ago when she commenced her employment as a registered nurse; 4) that Martha Withers resided in Fort Pierce where she was gainfully employed as a registered nurse, but had neither sold nor rented her home in Tampa, even though she no longer lived in it; 5) that Martha Withers had sufficient assets and income to support herself properly without further alimony; 6) that Florida law provided that women who are capable of supporting themselves should do so without alimony; 7) that the court was authorized to modify or terminate alimony based on changes in circumstances, such as the children reaching their majority, where the wife is gainfully employed on a full-time basis and accumulating assets and income.

DISCUSSION

The applicable rule in the instant case is that, in order to terminate permanent, periodic alimony, the complaining party must clearly show a substantial change in the circumstances of one or both parties, which circumstances must not have been present and contemplated at the time of the final judgment of dissolution. The complaining party must allege that he or she is no longer able to pay any amount of alimony or that the recipient is able to support himself or herself through their own efforts or resources.

Applying this rule to the evidence presented in the instant case, we find that:

1) Dr. Withers' estate was estimated to be approximately $750,000. His gross professional income in 1978 was $70,000 with a net of $37,000. His trust income totalled $14,500, interest income $5,000, and rental income $70,000. Dr. Withers' home was valued at $100,000 with a $50,000 mortgage.

2) At the time of final hearing on the motion, Martha Withers netted approximately $660 per month from her employment and had $2,000 in savings. Her expenses exceeded her income by about $600 per month. Her...