Bedell v. Bedell

561 So. 2d 1179, 1989 WL 133261
CourtDistrict Court of Appeal of Florida
DecidedNovember 7, 1989
Docket87-98
StatusPublished
Cited by7 cases

This text of 561 So. 2d 1179 (Bedell v. Bedell) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Bedell v. Bedell, 561 So. 2d 1179, 1989 WL 133261 (Fla. Ct. App. 1989).

Opinion

561 So.2d 1179 (1989)

Diane B. BEDELL, Appellant,
v.
Robert L. BEDELL, Appellee.

No. 87-98.

District Court of Appeal of Florida, Third District.

November 7, 1989.

*1180 Frates, Bienstock & Sheehe, Miami, and Philip J. Kantor and Terry Bienstock, Miami, for appellant.

Frumkes & Greene and Cynthia Greene, Miami, for appellee.

Before SCHWARTZ, C.J., and BARKDULL, HUBBART, NESBITT, BASKIN, FERGUSON, JORGENSON, COPE, LEVY and GERSTEN, JJ.

HUBBART, Judge.

This is an appeal by the wife Diane B. Bedell from a final order (1) denying her petition to modify the amount of permanent periodic alimony established by a 1975 final judgment of marriage dissolution which incorporated a settlement agreement between the parties, and (2) denying her request for reimbursement of certain college expenses incurred by the parties' son. After notifying the parties that we intended to consider this appeal on an en banc basis because of a conflict of decisions in this district, see Fla.R.App.P. 9.331(a), (b), and having received supplemental briefs on this issue in addition to the main briefs filed by the parties, we affirm the final order under review.

I

The undisputed relevant facts of this case are as follows. In 1962, the wife Diane Bedell and the husband Robert Bedell were married and soon thereafter had two sons. The parties separated after nine years of marriage, and on July 28, 1975, a final judgment of marriage dissolution was entered below, incorporating a prior settlement *1181 agreement between the parties. Under the terms of the agreed upon final judgment, the wife Diane Bedell, who was then thirty-three years old, received: (1) $415 a month in permanent alimony, (2) custody of the parties' two minor children, who were then aged ten and twelve, (3) $250 a month in child support for each of the two children, and (4) the husband's one-half interest in a townhouse in which the wife continues to reside; the husband also agreed to pay for the children's college education. The wife did not work outside the home during the marriage; the husband attended medical school during the marriage, obtained a medical degree, and at the time of the divorce had just opened his first medical office. In 1977, the wife relinquished custody of the two children, who were then aged twelve and fourteen, to the husband; the children thereafter resided with the husband during the remainder of their minority. During that time, the husband ceased making child support payments to the wife.

On July 12, 1986, the wife filed a petition for modification in the trial court in which she sought an increase in her alimony; she also sought, by separate pleading, the expenses for the oldest son's first year in college. The husband filed an answer and counter-petition for modification in which he sought a termination of all alimony. The wife thereafter sought various discovery of the husband's present financial condition, through interrogatories and requests for production of documents. The husband objected to this discovery on the ground that "he has sufficient financial ability to discharge any reasonable fiscal obligation imposed by the [c]ourt as alimony." The trial court granted the husband's motion for protective order on this basis, and, accordingly, the wife was precluded from any discovery of the husband's financial circumstances.

The trial court conducted a non-jury trial on the wife's petition and the husband's counter-petition for modification, as well as on the wife's request for reimbursement for college expenses. Subsequent thereto, the trial court entered an extensive order denying all relief sought by both parties. The wife appeals.

II

The wife raises various points on appeal which challenge the trial court's refusal to increase her alimony. Her central contention, however, is that she was entitled to such an increase as a matter of law under Section 61.14(1), Florida Statutes (1985), based solely on the husband's stipulated substantial change in his financial circumstances for the better since the final judgment; this is particularly true, she urges, because her needs were not met by the original alimony award and are not currently being met. She further urges, as an alternative argument, that she demonstrated below that her financial circumstances have substantially changed for the worse since the final judgment due to the ravages of inflation and other causes, and that, accordingly, this showing, when combined with the increased wealth of the husband, entitled her as a matter of law to an increase in alimony. We find no merit in these contentions.

A

Under Section 61.14(1), Florida Statutes (1985), a spouse who is the recipient of an alimony award in a final judgment of marriage dissolution incorporating a prior settlement agreement, as here, "may apply to the circuit court ... for a judgment ... increasing the amount of ... alimony" when "the circumstances or the financial ability of either party has changed," and "the court has jurisdiction to make orders as equity requires, with due regard to the changed circumstances or the financial ability of the parties ... increasing, or confirming the amount of ... alimony provided for in the agreement or order." (emphasis added). Although the statute authorizes the recipient spouse to apply for an increase in alimony "when the financial ability" of the spouse paying the alimony changes for the better, clearly the court is not required by the statute to grant such a motion; to the contrary, the statute confers general jurisdiction on the court to *1182 enter an order only "as equity requires," taking into consideration the changed financial circumstances.

Although not free from doubt, the weight of authority in Florida appears to support the rule that

"in a petition for modification [seeking increased alimony] the recipient's need [as established by the standard of living maintained during the marriage] is the sine qua non of the determination; unless and until it is established that there has been a substantial increase in need, [the paying spouse's] ability to pay must not be considered. Once that need is established, the question is whether or not [the paying spouse] has the ability to meet that increased need, in whole or in part. To hold otherwise improperly grants the alimony recipient a continuing interest in the former spouse's good fortune."

Irwin v. Irwin, 539 So.2d 1177, 1178 (Fla. 5th DCA 1989). In accord with this rule, this court has held that where the financial needs of the recipient spouse, as established by the standard of living maintained during the marriage, have not substantially increased since the final judgment, the trial court is justified in denying a motion to modify upward the alimony award, even though there has been a substantial increase in the financial circumstances of the paying spouse. Waldman v. Waldman, 520 So.2d 87 (Fla. 3d DCA 1987), rev. denied, 531 So.2d 169 (Fla. 1988); Bess v. Bess, 471 So.2d 1342 (Fla. 3d DCA 1985), rev. denied, 482 So.2d 347 (Fla. 1986). As we stated in Powell v. Powell, 386 So.2d 1214, 1216 n. 6 (Fla. 3d DCA 1980), "an increase in the [paying spouse's] ability [to pay] would not in itself justify an upward modification of alimony if the [recipient spouse's] needs are already fully met by the existing award or otherwise." See Frantz v. Frantz, 453 So.2d 429, 430 (Fla. 3d DCA) (to same effect), rev. denied, 459 So.2d 1040 (Fla. 1984).

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Cite This Page — Counsel Stack

Bluebook (online)
561 So. 2d 1179, 1989 WL 133261, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bedell-v-bedell-fladistctapp-1989.