Bagley v. BagleyBagley v. Bagley
This appeal is from an order modifying the provisions of a final decree by reducing the amount of alimony required to be paid appellant by appеllee. It is contended that the chancellor abused his discretion and acted in disregard of established principles of law in rendering the order appealed.
From the record it appears that after twenty years of marriage the appellee husband sued appellant wife for divorce. At that time appellee was an officer in the United States Air Force earning a monthly salary of $1,050.00. Four living children were born of the marriage between the parties, one son of college age and three minor daughters ranging in age from nine to sixteen years. After institution of the action the parties entered into a comprehensive agreement by which they amicably settled their respective interests in property accumulated by them during their marriage. It was agreed thаt in the event a decree of divorce was rendered in the cause, the custody of the minor children would be awarded to a relative of the husband living in Alabаma, and that the husband would pay monthly a sum of $150.00 for the support of these children. The agreement further provided that the husband would pay as alimony for the supрort and maintenance of his wife the sum of $200.00 per month, and provide her with a home in which to live so long as she remained unmarried. This agreement was introduced in еvidence and fully incorporated in the final decree rendered by the court in which the husband was awarded a divorce from his wife. The final decree was rеndered on February 16, 1965.
On or about May 4, 1965, appellee husband filed in the cause a motion praying that the final decree be modified in several
The evidence reveals that appellee husband’s income from his employmеnt is exactly the same as that which he was receiving at the time he entered into the property settlement agreement with his former wife and when the final decree of divorce was rendered in February of 1965. To support his prayer for reduction in alimony, appellee offered in evidence what purported to be a schedule of his expenses, showing a monthly expenditure of $1,038.31. It will be noted that this amount almost equals his monthly income before payment of alimony to his former wife. An examination of the record reveals that such schedule of purported monthly expenses includes numerous substantial items of a nonrecurring nature, as well as other expenses which by any reasonable standard would be considered nonessential. It was based upon this evidence that the chаncellor awarded appellee husband the custody of the three minor children born of the marriage of these parties, ordered the home whosе use had theretofore been awarded appellant wife be sold and the net proceeds divided equally between appellant and ap-рellee, and reduced the amount of alimony payable to appellant from $200.00 to $100.00 per month, all as prayed for in appellee’s petition for modification.
As noted above, the evidence fails to-establish any material change in appellee’s financial condition which will justify a reduction in the alimony which he agreed to pay to his wife by the agreement they entered into during their divorce proceedings, and which was ordered to be paid by thе final decree rendered in that suit. The fact that his remarriage has created additional financial obligations for him is no justification for reducing the amount оf alimony awarded to his former wife. Upon the sale of the home which he agreed to furnish his former wife so long as she remains unmarried, he will be relieved from making further monthly payments in reduction of the mortgage indebtedness encumbering that property and, in addition, he will further benefit from the share of the net proceeds to be derived from a sale of that property. Even though it may be conceded that the expense of maintaining and caring for his minor children will increase аs they grow older, this is an expense which he prayed the court for permission to assume when he asked for their exclusive care and custody. Furthermore, аny such additional expenses required for their necessary maintenance and support are obligations which the law requires him to discharge regardless of whether he had their custody or the custody was placed with another.
In the case of Fowler v. Fowler,
“The statute authorizes modification of an alimony decree only upon a clear showing that the circumstances of the parties or the financial ability of the husband have changed since the entry of the decree. Where the amount of alimоny decreed is based upon an agreement freely entered into between the parties, a heavier burden rests upon the husband to justify a modification. A reduction of the husband’s income on any account will not in itself justify a modification in the alimony requirements of the decree. Husband’s financial incapacity to continue the payment of alimony in the amount ordered by the decree must be shown if the court is to make such order as justice and equity may require. * * * ”
The forеgoing principle was adopted and followed by the Second District Court of Appeal in the case of Glass v. Glass.
“The record shows no evidence that the ability of the husband to pay has changed еxcept for a statement by the husband that at the present time he could not pay $75.00 per week. This is not justification for a modification of an alimony decree as contemplated by the cases cited above. Therefore, that part of the decree which reduces the total amount of the рayments to $55.00 and terminates the husband’s obligation to pay alimony is reversed.”
It is our conclusion and we so hold that the evidence in this case falls far short of supporting that portion of the modification order appealed herein which reduced the husband’s alimony obligations from $200.00 to $100.00 a month. In this respect, the order appealed is reversed and the cause remanded with directions that an amended order be entered consistent with the holding and views herein expressed.
Notes
. Fowler v. Fowler (Fla.App.1959),
. Glass v. Glass (Fla.App.1964),