Dykes v. Dykes

712 So. 2d 1189, 1998 WL 316562
CourtDistrict Court of Appeal of Florida
DecidedJune 17, 1998
Docket97-2741
StatusPublished
Cited by5 cases

This text of 712 So. 2d 1189 (Dykes v. Dykes) 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
Dykes v. Dykes, 712 So. 2d 1189, 1998 WL 316562 (Fla. Ct. App. 1998).

Opinion

712 So.2d 1189 (1998)

Deena DYKES, Appellant,
v.
Paul Kevin DYKES, Appellee.

No. 97-2741.

District Court of Appeal of Florida, First District.

June 17, 1998.

*1190 Garrett N. Barket, Jacksonville, for Appellant.

Kelly B. Mathis of Gobelman and Love, Jacksonville, for Appellee.

JOANOS, Judge.

Appellant, the former wife in this domestic relations case, appeals an order in which the trial court modified the final judgment of dissolution of marriage, and established the former wife's child support obligation. The issues presented for review are: (1) the requirement that the non-custodial former wife pay child support, (2) the reduction in the amount of alimony which the former husband is required to pay, and (3) the determination of alimony arrearage. We affirm in part and reverse in part.

The final judgment of dissolution of marriage was entered October 5, 1995. The parties to this action are the parents of seven children, six of whom are still minors. Among other things, the final judgment sets forth the trial court's specific finding that the parties to this cause have limited resources. In this regard, the trial court found that although the wife's income was minimal at the time of entry of the final judgment, she was capable of earning minimum wage, and imputed an approximate net income of $200.00 per week to the former wife. The court also found the parties had been married more than fourteen years, "and the Wife needs, and the Husband has the ability to pay, permanent, periodic alimony to the Wife in the amount of $250.00 per week." Primary residential custody of the children was placed with the former husband, with shared parental responsibility and liberal visitation to be afforded the former wife. The court awarded the marital home and furnishings to the former husband, but required him to pay the mortgage, taxes, and insurance, and to hold the former wife harmless from these costs. The court awarded the husband sole ownership of the parties' floor-installer business, because the business would be the source for payment of alimony, child support, and the parties' joint debts. The former wife was awarded a 1991 Ford; the former husband was awarded a Dodge van, business equipment, and tools.

The decretal portion of the final judgment states in pertinent part:

3. The Wife shall pay no child support at the present time. The Court specifically reserves jurisdiction to impose reasonable *1191 child support upon a changed circumstance.
4. The Husband shall pay to the Wife as and for permanent, periodic alimony the sum of $250.00 per week, beginning Friday, October 6, 1995 and a like amount each and every Friday until the Wife remarries or dies....

The trial court also made the former husband responsible for payment of the marital debt, and reserved jurisdiction for enforcement or modification of any provision of the final judgment.

Following the October 1995 dissolution of the parties' marriage, the former wife filed numerous motions for contempt orders, alleging the former husband failed to keep his weekly alimony payments current. During the course of almost continuous post-judgment litigation, the former husband was ordered to pay $100.00 monthly toward the attorney's fee incurred by the former wife. On January 8, 1996, the former husband was current in his alimony obligation, but by April 1996, the trial court found the former husband in willful contempt for failure to pay alimony since January 19, 1996. The court found the former husband had an income greater than $45,000.00 to $50,000.00 annually, with the ability to earn more. The court further found the former husband failed to pay the wife's attorney's fees as ordered; he intentionally withheld visitation and telephone contact between the children and their mother; and despite having the ability to do so, the former husband failed to keep payments current on the wife's vehicle and the marital debts he was ordered to pay. The trial court granted the motion for contempt, and ordered the former husband incarcerated with the ability to purge himself of contempt upon immediate payment of $1,000.00 to be applied to the alimony arrearage, plus payment of the costs of incarceration. In addition, the former husband was ordered to pay $300.00 toward the attorney's fee arrearage, plus an additional $500.00 for the services of the former wife's attorney in bringing the motion for contempt; to comply with the terms of visitation and to provide the wife telephone access to the children; and, to pay the arrearage on the wife's vehicle and not permit it to go into repossession.

On May 17, 1996, the former wife filed her fifth motion for a contempt order, alleging, among other things, that the former husband had failed to make twenty weekly alimony payments, resulting in an arrearage in the amount of $5,000.00. The motion further alleged the former husband failed to pay attorney's fees as previously ordered; failed to pay mortgage payments causing the former wife and her attorney to be sued by the lender, thereby incurring costs, attorney's fees, and exposure to liability; and failed to pay marital debts and changed the ownership title of his recently-acquired sports car to his live-in girl friend.

On June 6, 1996, the former husband filed a motion to reduce or terminate alimony and a motion for child support. The former husband alleged he had been unable to work since April 1996, because he did not have the $2,000.00 required to make truck repairs. He further alleged that due to expenses during and following the divorce, his savings were depleted; he had been unable to find gainful employment and had received no income since May 9, 1996; he had been forced to apply for food stamps and AFDC; he was financially unable to pay alimony at that time; and the former wife was able to pay child support. In June 1996, the trial court entered an order granting the wife's fifth motion for contempt.

On October 4, 1996, the former husband filed a petition for modification of alimony and child support, and in February 1997, he filed a motion for temporary child support. In her amended answer to the petition for modification of alimony and for child support, the former wife alleged the former husband intentionally divested himself of the ability to earn the amount of income he previously earned, so as to avoid his alimony obligations. On March 18, 1997, the trial court awarded the former husband temporary child support in the amount of $62.51 per week.

According to the trial court's findings of fact, which this court has denominated an approved statement of the facts, the alimony awarded by the final judgment comprised forty-five percent of the husband's actual net *1192 income. The court found the former husband was ordered to pay accumulated marital debt in the amount of $18,000.00, and to pay attorney's fees for the wife. The court stated the husband testified he fell behind in his alimony payments, due to his financial inability to pay his bills and to provide food and clothing for the children, "without child support assistance." During the time the husband was jailed for contempt, he lost his job and his tools were stolen. The former husband testified his home was in foreclosure; the court judicially noticed the pleadings relating to the foreclosure.

The former wife testified that she was working two part-time jobs, in order to average forty hours of work per week. She said she could not find better full-time employment, because her automobile was repossessed when the husband failed to make payments as required in the final judgment.

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Bluebook (online)
712 So. 2d 1189, 1998 WL 316562, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dykes-v-dykes-fladistctapp-1998.