ELMER KREISER, APPELLANT,
v.
HELEN KREISER, APPELLEE
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A former husband appealed a trial court's denial of his motion to modify or eliminate alimony payments under an unwritten agreement made during the parties' 1976 dissolution. The Fourth District Court of Appeal affirmed, holding that the wife's increased income was foreseeable and that the parties' written agreement was binding and not subject to modification absent changed circumstances.
The court affirmed the trial court's denial of the modification, holding that the agreement was binding and that substantial competent evidence supported the wife's affirmative defense that her increased income was foreseeable at the time of the agreement.
[1] Alimony payments recited into the record of a trial court during a dissolution proceeding are subject to modification unless the agreement specifies otherwise.
[2] Attorneys can effectively provide in dissolution agreements that a spouse's alimony is not modifiable.
Previewing 2 of 5 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“attorneys can effectively provide in these agreements that the wife's alimony is not modifiable. If payments are intended to be a property right and non-modifiable, that, too, can be stated in the agreement.”
Establishes that parties can clearly designate alimony as modifiable or non-modifiable, and that the absence of such specification does not resolve the issue.
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Join FLexlaw to unlock all legal intelligenceThe parties entered into an agreement during their contested 1976 dissolution providing for monthly alimony payments of $1,200. The agreement was reci…
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[*41] GLICKSTEIN, Judge.
This is an appeal by a former husband from a final judgment in an action brought by him to modify an unwritten agreement which was recited into the record of the trial court during the parties contested dissolution in 1976, ten years prior to the unsuccessful attempt at modification. The husband was attempting to terminate completely all payments of $1,200 per month, designated in the recited agreement as alimony, and treated by the wife as such on her income tax returns from the time of agreement.
The case represents the converse of Wolfe v. Wolfe, 424 So. 2d 32 (Fla. 4th DCA 1982), in which the husband deducted the payments of “alimony” for years on his income tax return then opposed the ex-wife’s attempt to modify the alimony on the ground that the wife had executed a true property settlement. We rejected the husband’s argument and by footnote pointed out that attorneys can effectively provide in these agreements that the wife’s alimony is not modifiable. If payments are intended to be a property right and non-modifiable, that, too, can be stated in the agreement. While Wolfe postdated the present parties’ dissolution, the attorney’s options did not, given the basic tools then available.
However, we affirm the final judgment for another reason; substantial competent evidence in the record to support the conclusion that the wife had established her affirmative defense that the increase in the wife’s income was foreseeable. Citing Penland v. Penland, 442 So. 2d 1054 (Fla. 1st DCA 1983), the wife points out, with which we agree, that it was reasonable to anticipate the corporate stock held by the parties would be liquidated after the parties’ dissolution, thus providing the wife with additional assets and income.
The husband was seeking complete elimination of the wife’s alimony, not just its reduction; and was seeking to undo — ten years after the fact — an agreement whose terms were as grating as they were binding. It was not an independent judicial determination being attacked, but a bargain that bore a monthly reminder by the writing of a check.
GUNTHER, J., and GOLDMAN, MURRAY, Associate Judge, concur.
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Gelber v. Brydger, 248 So. 3d 1170 (Fla. 4th DCA 2018)
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Gray v. Karin Lauscher, 537 So. 2d 708 (Fla. 5th DCA 1989)…such will sustain the trial court’s conclusion that any changes in the circumstances of the parties was anticipated at the time the final judgment of dissolution was entered. See Rosen v. Rosen, 528 So. 2d 42 (Fla. 3d DCA 1988); Kreiser v. Kreiser, 505 So. 2d 40 (Fla. 4th DCA 1987); Penland v. Penland, 442 So. 2d 1054 (Fla. 1st DCA 1983). The trial court awarded attorney fees below to the wife despite the fact that the wife admittedly had an equal or superi- or ability to pay those fees. See McIntyre v. Mc…1 / 2
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Barney Boardman v. Boardman, 526 So. 2d 218 (Fla. 3d DCA 1988)…PER CURIAM. Affirmed. Kreiser v. Kreiser, 505 So. 2d 40, 41 (Fla. 4th DCA 1987); Margulies v. Margulies, 491 So. 2d 581 (Fla. 3d DCA 1987).…
Authorities Cited
- Wolfe v. Wolfe, 424 So. 2d 32 (Fla. 4th DCA 1982)
- Penland v. Penland, 442 So. 2d 1054 (Fla. 1st DCA 1983)