Merting v. Merting

871 So. 2d 991, 2004 Fla. App. LEXIS 5240, 2004 WL 813165
CourtDistrict Court of Appeal of Florida
DecidedApril 16, 2004
DocketNo. 5D03-969
StatusPublished

This text of 871 So. 2d 991 (Merting v. Merting) 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
Merting v. Merting, 871 So. 2d 991, 2004 Fla. App. LEXIS 5240, 2004 WL 813165 (Fla. Ct. App. 2004).

Opinion

GRIFFIN, J.

This is an appeal of an order on petition for modification and petition to enforce final judgment, which we affirm in part and reverse in part.

The final judgment of dissolution of the marriage of Candice J. Merting [“Wife”], petitioner below, and James P. Merting [“Husband”], respondent below, was entered on August 26, 1998. Prior to the [992]*992entry of final judgment, Husband and Wife entered into a marital settlement agreement dated July 81, 1998 [“the Agreement”], and that Agreement was incorporated into the final judgment of dissolution of marriage. This Agreement had at least two peculiar characteristics. First, it contemplated that in order for Husband and Wife to meet them goal of shared parenting of their two minor children, Husband would continue to reside -in the marital residence with Wife -until Three months after the youngest child graduates from high school, at which time he was obliged to leave. This Agreement gave Wife the right of possession of the home and contained elaborate terms concerning which rooms Husband could access and when, who did which chores and how meals would be handled. The Agreement provided that Husband had the right to remain in the marital home under the Agreement unless his behavior- was inappropriate, he caused “undue” -stress to Wife or there were problems relating to the minor children due to the arrangement.

The other unusual thing about the Agreement is that Husband agreed to pay specified child support calculated in the Agreement to be “all the bills and expenses associated with the former marital residence as they have been customarily incurred in the past.” These expenses are listed in detail and totaled $4,731.69. Additionally, Husband'agreed to pay medical and hospitalization expenses for the children, life insurance and college. The Agreement recognizes that this agreed-to child support exceeded the child support guidelines. Especially odd was the fact that, given Husband’s income, it was beyond his ability to pay.

The Agreement also made provision for alimony as follows:

11. PERMANENT PERIODIC ALIMONY: As long as the Wife resides in the former marital home, the Husband agrees to pay all the Wife’s expenses and bills consistent with past expenses and bills as set forth in the Wife’s Financial Affidavit dated January 30, 1998 including medical insurance, household expenses and automobile expenses as set forth in Paragraph 7 above as well as the following monthly expenses ...
The Wife shall also receive incidental benefits of use of the former marital residence, other monies spent .in the household and automobile expenses as set forth in Paragraph 7 above. The parties agree that alimony is not taxable to the Wife and shall not be deductible from the Husband’s income.
On the first day of the first month following the sale of the former marital residence pursuant to the terms as set forth in Paragraph 12 below, the Husband shall pay permanent periodic alimony to the Wife in the minimum amount of $2,000.00 per month and $2,000.00 shall continue to be payable from the Husband to the Wife on the first day of each and every month thereafter until the Wife remarries or dies or the death of the Husband. In the event the Husband’s gross income exceeds $100,000.00 in any given year, alimony shall automatically be increased by 25% of the Husband’s income that is greater than $100,000.00, said 25% shall be payable to the Wife in twelve equal monthly installments during the following year in addition to the $2,000.00 permanent periodic alimony as set forth above.

The total alimony to be paid by Husband per month as set forth above was $790.00.

Paragraph 12 of the Agreement referred to in the above provisions concerned equitable distribution:

12. EQUITABLE DISTRIBUTION:
As and for equitable distribution of the [993]*993marital assets of the parties, the parties agree as follows:
(a) Marital Home: The marital residence of the parties is and has been located at 10823 Crescent Lane, Cler-mont, Florida 34711. The parties agree to remain joint owners of said residence and agree to put said residence on the market to sell at a mutually agreeable price three months after the graduation of the youngest child from high school. The Husband shall pay all expenses relating to said residence until said residence is sold....

The final judgment provided that “The Martial Settlement Agreement dated July 31st 1998 is hereby approved and incorporated into this Final Judgment of Dissolution of Marriage by reference, and the parties are ordered to comply with same.”

It should be noted that prior to the signing of the Agreement in July 1998 and the entry of the final judgment in August 1998, Husband filed a family law financial affidavit which showed his current income was $26,000.00 per year ($2,000.00 per month plus commissions) with an automobile allowance of $250.00 per month and up to $125.00 per month for a cell phone. Husband also stated his net income for the last calendar year, 1997, was $41,572.36.

The record suggests that Husband moved out of the marital home in January 2000. Husband then filed an initial petition for modification of the final judgment, although the record before us does not reflect the date of the petition. In his letter dated September 26, 2000, explaining his decision to deny the petition, the judge said:

[The marital settlement agreement] called for child support in the amount of $4,731.61 [sic] per month, alimony of $790 per month along with other financial obligations. The alimony is without taxable consequence. Suffice it to say that every provision in the Final Judgment is heavily weighted in favor of [Wife]. At the time of entry into the marital settlement agreement [Husband] was unrepresented. The agreement contemplates payments for [sic] greater than [Husband’s] income and ability to pay. [Husband] seeks relief from that judgment.
[Wife] wins. She has objected to granting [Husband] any relief. [Husband] has the burden of proving a substantial change in circumstances. The evidence was insufficient to carry this burden. At the time [Husband] entered into the marital settlement agreement he lacked the ability to meet his financial obligations. His income at the time he entered into the marital settlement agreement was less than his current income. While he was living in the marital residence at the time the agreement was executed, his leaving that residence was contemplated within the agreement. [Husband] made a bad deal. The agreement could well be considered unconscionable. However, the law is clear that the court is not authorized to rewrite or renegotiate the agreement. Only the parties can do that.
[Wife] realizes [Husband] does not have the ability to comply with the court ordered obligations. [Husband] is significantly in arrears however, [Wife] has not sought to having [sic][him] held in contempt of court. Instead of attempting to negotiate some workable compromise, [Wife] has simply objected to [Husband’s] Petition for Modification. The result is a situation where [Husband] is unable to meet his own basic needs. How long [Husband] can maintain is speculative. The court hopes this doesn’t get to the point where [Husband] gives up and leaves the jurisdiction. Certainly [Wife] and the parties [994]

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Cite This Page — Counsel Stack

Bluebook (online)
871 So. 2d 991, 2004 Fla. App. LEXIS 5240, 2004 WL 813165, Counsel Stack Legal Research, https://law.counselstack.com/opinion/merting-v-merting-fladistctapp-2004.