McBride v. McBride

352 So. 2d 1254
CourtDistrict Court of Appeal of Florida
DecidedDecember 15, 1977
DocketFF-310
StatusPublished
Cited by10 cases

This text of 352 So. 2d 1254 (McBride v. McBride) 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
McBride v. McBride, 352 So. 2d 1254 (Fla. Ct. App. 1977).

Opinion

352 So.2d 1254 (1977)

Gail C. McBRIDE, Appellant,
v.
Douglas B. McBRIDE, Appellee.

No. FF-310.

District Court of Appeal of Florida, First District.

December 15, 1977.

*1255 Isham W. Adams, Daytona Beach, for appellant.

James L. Padgett, Crescent City, for appellee.

RAWLS, Judge.

By this interlocutory appeal, appellant-wife seeks review of an order entered by a successor judge modifying the final judgment of dissolution of marriage by changing nunc pro tunc the form of alimony from permanent to rehabilitative.

The parties were married June 11, 1966, approximately ten days after the wife graduated from high school. The wife was 17 years old and the husband was 21 years old. During their marriage, the parties had two sons. The wife was never employed in the marketplace during the marriage.

In May of 1975, the husband filed a petition for dissolution of marriage accompanied by an offer of judgment. The parties entered into a stipulation by which they settled provisions for child support, visitation, and property settlement. The husband further agreed to pay $500.00 per month alimony; however, the parties were unable to agree whether the alimony payments would be made on a permanent or rehabilitative basis.

On October 17, 1975, Judge Leon F. Stewart entered his order dissolving the marriage, incorporating the stipulation provisions into the order, and directing that the $500.00 per month alimony be permanent.[1] The husband filed a petition for rehearing which was denied on December 19, 1975. No appeal was taken.

On February 10, 1976, the husband filed a petition for modification alleging a mistake of fact as to his financial status at the time of entry of the final judgment; the ability of his ex-wife to work; and financial losses that were leading to his bankruptcy. (A financial statement dated December 31, 1975, was filed with the trial court which listed the husband's net worth as $202,179.38. Also, a statement of cash receipts and disbursements was filed listing a cash balance of $75,425.17.) Following a hearing, Judge Stewart denied the petition for modification on April 2, 1976. Such denial constituted an affirmance of the previous order as to permanent alimony.

On September 24, 1976, the husband filed a petition for modification alleging material changes in the circumstances of the parties. An amended and second amended petition were filed. The second amended petition alleged that the income of the husband had materially changed and substantially decreased, that the circumstances of the wife had changed in that the minor children had both attained school age, and that subsequent to January 17, 1977, freezing weather had destroyed a vast majority of the husband's fern crop which was the source of his income. The husband prayed that the court "reduce his child support payments, and substantially reduce or eliminate entirely alimony payments." (A financial statement dated December 31, 1976, was filed showing a net worth of $94,308.66.)

On March 10, 1977, Judge Upchurch, Judge Stewart's successor, entered his order denying any modification in the child support or the amount of alimony but amending nunc pro tunc the final judgment of October 17, 1975, so as to provide that the alimony be rehabilitative, rather than permanent, payable for four consecutive years commencing October 1, 1975.

As grounds for reversal, appellant urges that the successor trial judge was without *1256 jurisdiction or authority to modify the final order of his predecessor.

Generally, in the absence of mistake or fraud, a successor judge cannot review, modify or reverse, upon the merits on the same facts, the final orders of his predecessor. Bailey v. Bailey, 204 So.2d 531 (Fla. 3rd DCA 1967).

Section 61.14, Florida Statutes, provides that the circuit courts have jurisdiction to make orders as equity requires to decrease or increase the amount of alimony with due regard to the changed circumstances or the financial ability of the parties. The jurisdiction of a successor judge is limited, for it has been held that while a successor judge could modify prospectively pursuant to Section 61.14, he could not "clarify" a final judgment of dissolution so that additional obligations would relate back to the time of the entry of the original judgment. Floyd v. Floyd, 281 So.2d 63 (Fla. 3rd DCA 1973). Thus, that portion of the trial court's order making the four-year period of rehabilitative alimony effective the date of the original decree was error because of its retroactive nature.

As to the form of alimony, rehabilitative vs. permanent, it should be noted that the husband petitioned for a reduction or elimination of alimony. The primary criteria to be used in establishing the amount of alimony is still the husband's ability to pay and the needs of the wife, taking into consideration the standard of living by the parties to the marriage. Sharpe v. Sharpe, 267 So.2d 665 (Fla. 3rd DCA 1972); and Firestone v. Firestone, 263 So.2d 223 (Fla. 1972).

In Herbert v. Herbert, 304 So.2d 465 (Fla. 4th DCA 1974), the Fourth District Court of Appeal stated:

"... the husband's petition for modification alleging matters bearing upon a substantial change in his financial circumstances and resulting in the order under review merely prayed for `an order reducing child support and alimony'. The pleadings do not reflect any suggestion or intimation that the husband's obligation to pay alimony should cease because of a [sic] substantial changes in his circumstances or those of his wife.
"Nevertheless, the trial court proceeded to terminate the husband's alimony obligation rather than reduce the same during his period of financial inability as prayed for in his petition. The trial court predicated this cessation upon its finding that there was `no justification in extending the husband's obligation for alimony to a woman who is well capable of supporting herself'. This gratuitous determination was inconsistent with the husband's petition for modification and for that matter with every other plead-and prayer for relief filed by the husband in the dissolution proceedings."

In the instant case, the husband petitioned for a reduction or elimination of alimony. The trial court declined to reduce the alimony; however, it changed the form of alimony from permanent to rehabilitative. This was error. The evidence presented established nothing more than the husband was undergoing a temporary reduction in income due to a winter freeze with resulting damage to his fern acreage. There was no evidence presented that the wife's financial circumstances had changed nor was there any evidence that the wife's ability for self support would occur at the end of the four-year period.

The judgment appealed is REVERSED.

McCORD, C.J., concurs.

BOYER, J., dissents.

BOYER, Judge, dissenting.

Prior to the untimely death of Judge Leon Stewart he entertained a petition for dissolution of the marriage of the parties hereto. In due course there was filed in the cause a stipulation which recited, inter alia, the following:

"That Petitioner shall pay and Respondent shall accept as total alimony and support for herself the sum of five hundred ($500.00) dollars per month, commencing on the first day of October, 1975, and continuing on the first day of each *1257 and every calendar month thereafter until appropriately terminated.

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Bluebook (online)
352 So. 2d 1254, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mcbride-v-mcbride-fladistctapp-1977.