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Smart Summary

Factual and Procedural Background

The parties, Margaret Miller Johnson and Bernard A. Johnson, were divorced in Florida in 1965. The final judgment incorporated a property settlement agreement that allocated personal property and obligations between them. The wife received the title to the marital home, while the husband agreed to pay the mortgage, taxes, child support for three minor children, and permanent alimony of $350 per month. In 1978, Bernard petitioned to terminate his alimony obligation and his duty to pay the mortgage and taxes, arguing that the children were no longer dependent and the wife was self-supporting. The trial court ruled that the mortgage and tax payments were part of a non-modifiable property settlement, but it found the alimony modifiable and terminated the husband's alimony obligation, based on the wife's increased income and self-supporting status. The husband appealed this decision.

Legal Issues Presented

  1. Whether the husband's obligation to pay mortgage and taxes under the property settlement agreement is modifiable under Florida law.
  2. Whether the permanent alimony obligation is modifiable given the wife's increased income and changed circumstances.
  3. Whether there was a sufficient change in circumstances to justify termination of the permanent alimony.

Arguments of the Parties

Appellee's (Husband's) Arguments

  • The husband contended that the alimony obligation is modifiable because the wife did not relinquish any property rights in exchange for the alimony payments.
  • He argued that since the children were no longer dependents and the wife was earning sufficient income, his alimony obligation should be terminated.

Appellant's (Wife's) Position

  • This information was not available in the provided opinion.

Table of Precedents Cited

Precedent Rule or Principle Cited For Application by the Court
Fowler v. Fowler, 112 So.2d 411 (Fla. 1st DCA 1959) Property settlement agreements incorporated in divorce decrees are generally not modifiable. The court agreed that the husband's obligation to pay mortgage and taxes was part of a non-modifiable property settlement.
Coffin v. Coffin, 368 So.2d 105 (Fla. 4th DCA 1979) Alimony obligations are modifiable if the payee did not give up property rights in exchange. The court noted this principle but did not need to decide it because it found no substantial change in circumstances.
Goerlich v. Goerlich, 358 So.2d 895 (Fla. 2d DCA 1978) Similar to Coffin, regarding modifiability of alimony when no property rights were exchanged. The court referenced this precedent but did not apply it decisively in this case.
Turner v. Turner, 383 So.2d 700 (Fla. 4th DCA 1980) Consideration of whether permanent alimony awards can be modified when circumstances change. The court cited this case to support its analysis on modification of alimony and was referenced by the concurring judge as the basis for concurrence.
McAllister v. McAllister, 345 So.2d 352 (Fla. 4th DCA 1977) Criteria for awarding permanent alimony in long-term marriages. Used to affirm that the initial permanent alimony award was proper.
Gordon v. Gordon, 335 So.2d 321 (Fla. 4th DCA 1976) Standards for permanent alimony awards. Supported the propriety of the original permanent alimony award to the wife.
Canakaris v. Canakaris, 382 So.2d 1197 (Fla. 1980) Analysis of alimony awards and modification based on totality of circumstances. Guided the court's approach to evaluating whether a change in circumstances justified modification.
Taplin v. Taplin, 341 So.2d 1064 (Fla. 3d DCA 1977) Consideration of the totality of circumstances in alimony modification. Referenced in assessing whether the wife's improved income warranted termination of alimony.
Freeland v. Purcifull, 347 So.2d 726 (Fla. 2d DCA 1977) Standards for modification of alimony based on changed circumstances. Used to emphasize the need for substantial change before modifying alimony.
Tsavaris v. Tsavaris, 307 So.2d 845 (Fla. 2d DCA 1975) Burden on party seeking modification of alimony based on agreement. Supported the principle that the applicant bears a heavier burden to show a sufficient change when alimony is based on an agreement.
Coe v. Coe, 352 So.2d 559 (Fla. 2d DCA 1977) Similar to Tsavaris regarding modification burden. Reinforced the heavier burden on the party seeking modification.
Hagen v. Hagen, 308 So.2d 41 (Fla. 3d DCA 1975) Standards for modification of alimony obligations. Referenced to support the court's analysis of modification requirements.
Mosher v. Mosher, 321 So.2d 450 (Fla. 2d DCA 1975) Permanent alimony should not be terminated solely because the recipient becomes better educated or earns modest income. Supported the court's view that the wife’s modest income and education did not justify terminating alimony.
Herbert v. Herbert, 304 So.2d 465 (Fla. 4th DCA 1974) Similar principle to Mosher regarding modification of permanent alimony. Used to bolster the court’s conclusion about the stability of permanent alimony awards.

Court's Reasoning and Analysis

The court analyzed the nature of the property settlement and alimony obligations as incorporated into the final judgment. It held that the husband's obligation to pay the mortgage and taxes was part of a property settlement agreement, which under Florida law is not subject to modification, citing Fowler v. Fowler. Regarding alimony, the court acknowledged that periodic alimony is generally modifiable, especially when not exchanged for property rights. However, the court found no substantial change in circumstances or financial abilities of the parties sufficient to justify terminating the permanent alimony. The wife, though earning income as a librarian, lived modestly and below the standard of living enjoyed during the marriage, while the husband lived comfortably with a significantly higher income and assets. The court emphasized that the wife’s modest income and improved education did not warrant termination of permanent alimony, especially given the original agreement contemplated her employment post-divorce. The court concluded that the trial court abused its discretion in terminating the alimony obligation.

Holding and Implications

REVERSED in part; AFFIRMED in part.

The court upheld the non-modifiability of the husband's obligation to pay mortgage and taxes as part of the property settlement. It reversed the termination of the permanent alimony obligation, finding the trial court erred in concluding there was a substantial change in circumstances. The direct effect is that the husband remains obligated to pay permanent alimony as originally agreed, while the mortgage and tax payments remain non-modifiable. The opinion did not establish new precedent but reinforced existing principles regarding modification of alimony and property settlement agreements in Florida.

MARGARET MILLER JOHNSON, APPELLANT, v. BERNARD A. JOHNSON, APPELLEE.

SHARP, Judge.

The former husband and wife involved in this appeal were divorced in 1965, in Florida. The final judgment incorporated a "Property Settlement and Agreement" executed by the parties and their attorneys. Pursuant to this agreement each party received certain personal property. They agreed to refinance the marital home and use the proceeds to pay the debt on an automobile to be transferred to the wife and to pay off two mortgages on the home. The wife received the title to the home. The husband agreed to pay the mortgage and taxes on the house, and child support for the three minor children. He also agreed to pay the wife $350.00 per month as permanent alimony. In 1978 Bernard petitioned for termination of his alimony obligation and his duty to pay the mortgage and tax payments on the house, because the three children were in college or no longer living with the wife, and Margaret was earning an income sufficient for her own support.

The trial court found that Bernard's undertaking to pay the taxes and mortgage on the home was part of a property settlement agreement not modifiable under Florida law. Fowler v. Fowler, 112 So.2d 411 (Fla. 1st DCA 1959). We agree with this conclusion. However, the trial court found that the periodic alimony provision was modifiable. It terminated the husband's alimony obligation, based on a finding that the wife substantially increased her income since the dissolution and had become self-supporting. The husband argues that because it does not appear that the former wife gave up any property rights in exchange for the alimony, this obligation is modifiable. Coffin v. Coffin, 368 So.2d 105 (Fla. 4th DCA 1979); Goerlich v. Goerlich, 358 So.2d 895 (Fla. 2d DCA 1978). We do not need to reach this question in this case, because we find there was no substantial change in the circumstances or the financial abilities of either party, and it was therefore an abuse of discretion to terminate the permanent alimony obligation.

The parties' agreement provided (in part):
"9. In addition to the above, the Husband agrees to pay to the Wife as and for alimony the sum of three hundred fifty dollars ($350.00) per month and to continue said monthly payments so long as the Wife shall live or until she shall remarry.
. . . . .
16. This agreement is intended to be a complete property settlement agreement and as the same provides for the distribution of the property owned by the parties hereto or controlled by them, it is not subject to modification or recision."


See Turner v. Turner, 383 So.2d 700, (Fla. 4th DCA 1980).

At the time of the divorce the wife had been a housewife during the 20 years of their marriage. She had a college education but had not worked outside the home. During the marriage Bernard built a successful career as a salesman. He was frequently away from home, and Margaret cared for the children and the home, and supported his success in his career. They enjoyed a comfortable life style, which included membership in a country club, vacations in North Carolina and the "islands", nice clothing for the wife, and an "enviable" social life.

Within a few months after the divorce, the wife took a part-time job as a clerk. Both parties apparently contemplated that it would be necessary for the wife to work outside the home after the divorce in order to meet her normal living expenses. She also attended school part-time, and managed to earn her certification as a teacher and a librarian. She inherited some funds from her parents, but those funds were largely exhausted at the time of the modification proceedings. Margaret was never again able to achieve the standard of living she enjoyed during her marriage. She could not afford to paint the house or repair or replace the appliances, such as the dryer, refrigerator, stove, hot water heater, and furnace. She was driving a 1974 V.W. Beetle and had the same furniture in her home obtained during the marriage. She had a job as a librarian at $12,500 a year, but she lived very modestly. She had sought no increase in alimony or child support even though inflation and increased cost of living occurred over the 13 year period because she thought the agreement was not modifiable.

In contrast the evidence showed that Bernard was living very comfortably, even luxuriously by Margaret's standards. His income approximated $60,000 per year. His second wife was also employed and he had no dependents. Bernard lived in an oceanfront home in Ormond Beach overlooking the Oceanside Country Club. He valued it at $175,000. It was furnished with antiques and new furniture worth $15,000. He and his wife enjoyed the country club and their own private pool at home. His net worth exceeded $200,000. He and his second wife were driving new Lincoln Continentals.

Clearly a permanent alimony award to Margaret was proper in the initial proceedings. McAllister v. McAllister, 345 So.2d 352 (Fla. 4th DCA 1977); Gordon v. Gordon, 335 So.2d 321 (Fla. 4th DCA 1976); Canakaris v. Canakaris, 382 So.2d 1197 (Fla. 1980). Whether or not a sufficient change in circumstances occurred in this case requires the consideration of the totality of the parties' circumstances. Taplin v. Taplin, 341 So.2d 1064 (Fla. 3d DCA 1977); Freeland v. Purcifull, 347 So.2d 726 (Fla. 2d DCA 1977). Where the alimony obligation is based on an agreement, a heavier burden is on the applicant to establish the change as sufficient. The lower court in this case disregarded the affluent circumstances of the former husband, and the situation established by the record that the former wife was living far below the standard of living she enjoyed during marriage and far below the former husband's current standard of living. The lower court relied solely upon the fact that the former wife had obtained a full-time job paying $12,500 per year. Had she not done so, her living standard would have been near the "poverty level." The divorced wife of a long term marriage who is awarded permanent alimony should not be faced with the prospect of losing her right to alimony if she becomes better educated, or if she earns a modest income as in this case. Mosher v. Mosher, 321 So.2d 450 (Fla. 2d DCA 1975); see Herbert v. Herbert, 304 So.2d 465 (Fla. 4th DCA 1974); McAllister v. McAllister, 345 So.2d 352 (Fla. 4th DCA 1977). This premise is even stronger where the parties agreed to the permanent alimony award initially, and where both contemplated it would be necessary for the former wife to become gainfully employed after the divorce.

Tsavaris v. Tsavaris, 307 So.2d 845 (Fla. 2d DCA 1975); Coe v. Coe, 352 So.2d 559 (Fla. 2d DCA 1977); Hagen v. Hagen, 308 So.2d 41 (Fla. 3d DCA 1975).

The poverty level in 1978 for a woman living in the city was $3,190. Newspaper Enterprise Association, Inc., The World Almanac, p. 201 (1980).

See Turner v. Turner, 383 So.2d 700, (Fla. 4th DCA 1980).

REVERSED in part; AFFIRMED in part.

FRANK D. UPCHURCH, Jr., J., concurs.

COBB, J., concurs specially.

COBB, Judge, concurring specially.

I concur in the result reached by the majority on the basis of Turner v. Turner, supra, fn. 2.

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Comments

JOHNSON v. JOHNSON
(Jul 24, 1980)