Work v. Provine, 92-2308
| Decision Date | 07 March 1994 |
| Docket Number | No. 92-2308,92-2308 |
| Citation | 632 So.2d 1119 |
| Parties | 19 Fla. L. Weekly D532 Kenneth Scott WORK, Appellant, v. Patsy B. PROVINE, f/k/a Patsy B. Work, Appellee. |
| Court | Florida District Court of Appeals |
Walter A. Steigleman, Fort Walton Beach, for appellant.
Bobby L. Whitney of Chesser, Wingard, Barr, Whitney, Flowers & Fleet, P.A., Shalimar, for appellee.
Appellant, the former husband, challenges an order entered on his former wife's petition for modification of a final judgment of dissolution. We affirm.
The parties to the instant appeal were divorced in July 1985. The judgement of dissolution incorporated an agreement of the parties. This agreement, styled "Property Settlement Agreement," contains comprehensive provisions covering child custody and support, use of the marital residence by the wife, and other property and financial matters, including distribution of marital assets. Among other things, the agreement contains a provision by which both parties waived alimony.
At issue in this proceeding is a provision for the equal division of payments receivable on a $27,500 promissory note (paragraph 11 of the agreement), 1 and another provision for the equal division of proceeds of the sale of an interest in real property valued in the agreement at $8,000 (paragraph 9). 2 The former husband concedes that the former wife was not paid in accordance with these two provisions. The former husband maintains that the promissory note was never collected and is, practically speaking, uncollectible. 3 The former husband further claims that the real property interest was not properly valued in the settlement agreement, and that upon the sale of the interest, the former husband actually sustained a loss. 4
The former wife's petition for modification sought, among other things, the distribution outlined in paragraphs 9 and 11 of the agreement as well as an increase in child support. The former husband counter-petitioned seeking a reduction in his child support obligation on the ground that he was no longer employed full-time and hence had a decreased ability to pay.
The cause proceeded to a hearing at which both parties testified. It was established that both parties have remarried, and that after dissolution, the former husband relocated to South Carolina and then to Atlanta, Georgia. The former husband, a certified public accountant, left a $42,000 a year position with an accounting firm in South Carolina, because he believed his job was in jeopardy due to indications that the firm was preparing to dissolve. He concedes that he did not have other employment secured when he resigned from the South Carolina firm and headed to Atlanta. Since his arrival in Atlanta, the former husband has not secured permanent employment, although he has been able to work on a per diem basis for at least two accounting firms during tax season.
In its order granting the petition for modification, the lower court found that the former wife, a legal secretary, waived alimony with the expectation that she would receive certain sums, including those stipulated in paragraphs 9 and 11 of the settlement agreement. Therefore, the lower court ordered the former husband to pay $17,750 (one-half of $27,500 plus $4,000) to the former wife as lump sum alimony. The lower court imputed to the former husband an earning capacity of $42,000, and accordingly, the amount of child support owed by the former husband was increased commensurate with this increase in income.
On appeal, the former husband argues that because the provision of paragraphs 9 and 11 pertain to a property settlement, they are not subject to modification. The former wife argues, in response, that the lower court did not actually modify the settlement agreement, but merely enforced what was intended by it.
Generally speaking, in the absence of a specific reservation of jurisdiction to make a later adjudication of property rights, a lower court does not have jurisdiction to modify property rights after an adjudication of those rights has been made in a judgment of dissolution. Harman v. Harman, 523 So.2d 187 (Fla. 2d DCA 1988). Modification of a property settlement incorporated into a final judgment of dissolution may only be had if the party seeking modification can satisfy the exceptionally heavy burden of showing that the settlement is the product of fraud, duress, deceit, misrepresentation, or overreaching, or that the settlement is unfair or unreasonable. McMahan v. McMahan, 567 So.2d 976 (Fla. 1st DCA 1990). Even if a specific reservation of jurisdiction is made, it has been held that such only affords a court authority to address property rights not previously settled by the final judgment. Brandt v. Brandt, 525 So.2d 1017 (Fla. 4th DCA 1988).
However, a lower court retains jurisdiction for the purpose of enforcing the final judgment of dissolution regardless of whether a specific reservation has been made. Seng v. Seng, 590 So.2d 1120 (Fla. 5th DCA 1991). Although the former wife styled her petition as a petition for modification, it is obvious that the former wife intended, with respect to paragraphs 9 and 11, an enforcement of these provisions. It is clear that the former wife did not seek anything extrinsic to these provisions; she sought only the amount specifically stated in paragraphs 9 and 11. Accordingly, the relief sought should have been labelled enforcement, rather than modification. In any event, the style of the pleading is not controlling. Scarfone v. Marin, 442 So.2d 282 (Fla. 2d DCA 1983).
It is true that the lower court designated the sums awarded as "lump sum alimony," whereas the property settlement agreement does not use this term. Nevertheless, we find the use of the term to be of no significance at this juncture, since the order under review merely orders the enforcement of the property settlement agreement by payment. Cf. Hobbs v. Hobbs, 518 So.2d 439 (Fla. 1st DCA 1988).
Lump sum alimony may be used to effectuate a distribution of marital properties or to provide support for a spouse in need in the traditional sense of alimony. Canakaris v. Canakaris, 382 So.2d 1197 (Fla.1980); Diffenderfer v. Diffenderfer, 491 So.2d 265 (Fla.1986). The parties specifically waived alimony in the property settlement agreement, as noted, and obviously intended by the division of the proceeds outlined in paragraphs 9 and 11 to make a distribution of property in lieu of alimony. Under these circumstances, the...
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