110 So. 2d 693 | Fla. Dist. Ct. App. | 1959
The appellant husband has appealed from an order dismissing with prejudice his petition for modification of a final decree of divorce. By his petition appellant sought an order apportioning as between the wife and minor children a lump sum award for alimony and support. It was the chancellor’s refusal to modify the final decree in such way as to make such apportionment that is assigned as error.
The parties to this appeal were divorced by final decree dated July 31, 1941. By the terms of the decree the wife was granted a divorce and awarded the custody of two minor children born of the marriage. The husband was ordered to pay the sum of $100 a month as alimony and as support of the children. The daughter married after arriving at her majority in 1951, and the son died on December 4, 1957. The husband continued thereafter to pay to the wife the full $100 a month allowance for alimony and support of the children. While current with these payments the husband filed his petition on April 19, 1958, alleging the foregoing facts and praying for an order modifying the final decree by apportioning the lump sum award between the wife for alimony and the children for support. It
“I have listened to this and my understanding of the law is, of course, that to justify the modification of a final decree for alimony, there must be some substantial change in the status of the parties. There is no substantial change for the worse on the part of either of these parties, the petitioner or the respondent. No doubt, there has been and testimony indicates there has been some substantial change for the better for both parties since 1941 and I expect one sort of offsets and equalizes the other * * * In the absence of any showing whatever of the petitioner’s inability to pay that amount and further, if the respondent or the plaintiff in the original proceeding, became disabled and had to give up her employment she would have from her savings, stocks and rentals of income of $97.50 gross, which would be wholly inadequate for her to maintain a home for herself.”
It was upon the foregoing findings that the chancellor entered his order denying and dismissing with prejudice the petition for modification of the final decree.
It is so well settled in this jurisdiction as to require no citations of authority that a petition to modify an award of alimony made in a final decree of divorce will not be granted except upon a showing of a change in circumstances of the parties. The chancellor was eminently correct in denying the prayer of the petition by which the husband sought an order relieving him from making further payments of alimony to his wife. On this appeal the husband makes no complaint that the last mentioned prayer of his petition was denied. The error which he urges is the action of the chancellor in refusing to apportion the lump sum award made in the final decree between the amount reasonably required for alimony on behalf of the wife, and the amount reasonably required for the support of the children.
In the Sheppard case
In the Bezanilla case
The latest decision of our Supreme Court on this subject, and the one which we deem to be controlling on the issue here involved, is the Zalka case.
In the case now before us it seems apparent that the chancellor considered the purpose of the petition for modification to be one seeking only a reduction in the payment of alimony. He failed to give proper consideration to the prayer of the petition which sought an apportionment of the lump sum award between alimony for the wife and support for the children. We are of the opinion that this failure constituted a departure from the essential requirements of law and was therefore erroneous.
It is not intended that this opinion be construed to prevent the chancellor, upon proper pleadings and proof, from modifying the provisions of the final decree fixing the amount of alimony to be paid the former wife should a change in the circumstances of the parties so warrant.
The order appealed from is reversed and the cause remanded for further proceedings consistent with the views herein expressed.
. Sheppard v. Sheppard, Fla.1950, 45 So. 2d 505.
. Bezanilla v. Bezanilla, Fla.1953, 65 So.2d 754.
. Zalka v. Zalka, Fla.1958, 100 So.2d 157.