LINDA C. MALONE, APPELLANT,
v.
FRANCIS J. MALONE, APPELLEE

Fla. 5th DCA | 1994-05-20
No. 93-833
W. SHARP and DIAMANTIS, JJ., concur.
637 So. 2d 76 Florida District Court of Appeal, Fifth District (1994) Positive Treatment
Cited by 4 cases

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Synopsis

The former wife appealed the dismissal of her contempt motion against the former husband for failing to pay child support increases mandated by their separation agreement. The appellate court reversed, holding that while automatic support increases are generally disfavored, those agreed to by the parties and incorporated into a final judgment are enforceable.


Holding

The court held that it was error for the trial court to dismiss the former wife's contempt motion. Although automatic increases in child support are ordinarily disfavored, provisions agreed to by both parties and incorporated into a final judgment are enforceable, even if the court could not have ordered such provisions absent agreement.


Headnotes

[1] A provision in a marital settlement agreement for automatic increases in child support based on an increase in the payor's compensation is enforceable when incorporated i…

[2] Courts can generally enforce provisions in marital settlement agreements that they could not order absent the parties' agreement.

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Key Quotes

“a court can generally enforce provisions in marital settlement agreements even though the court could not order the same provisions absent an agreement”

Establishes the key principle that enforceability of settlement agreement provisions is not limited to those a court could independently order

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Facts & Procedural History

The parties entered into a separation and property settlement agreement on January 27, 1984, which provided that child support would increase by 20% o…

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Opinion of the Court
GOSHORN, Judge.

GOSHORN, Judge.

The former wife appeals the dismissal of her motion for the former husband to show cause why he should not be held in contempt for failure to pay child support in accordance with the parties’ separation agreement which had been incorporated into their final judgment of dissolution of marriage. We reverse.

On November 19, 1984, the former wife filed a petition for dissolution of marriage. On March 27, 1985, the trial court rendered its final judgment incorporating the terms of a separation and property settlement agreement entered into by the parties on January 27, 1984. The judgment was not appealed. The agreement in pertinent part, provided:

Realizing the increases in the cost of living, it is understood and agreed that in the event the Husband receives an increase in compensation, the child support provided for herein shall be increased by an amount equal to twenty percent (20%) of such increase in compensation.

Various controversies arose between the parties, and the former wife ultimately filed the motion which is the subject of this appeal. The former husband moved to dismiss the motion, contending that automatic increases in child support are improper and thus unenforceable. The trial court agreed and dismissed the former wife’s motion with prejudice.

We begin our analysis with the acknowledgment that the appellate courts in this state routinely reverse provisions in dissolution judgments which provide for automatic adjustments of support obligations. The rationale that has evolved is that an automatic increase in support lacks a foundation evidencing that need and ability to pay have substantially changed. See Kangas v. Kangas, 420 So. 2d 115 (Fla. 2d DCA 1982) (order requiring unemployed husband to pay $10 per week per child to be increased to $35 per child on becoming employed reversed because there was no evidentiary basis for the determination of future events); Stoler v. Stoler, 376 So. 2d 253 (Fla. 3d DCA 1979) (order requiring increase in support based on cost of living index reversed because, although it might be beneficial, it might not), cert. denied, 389 So. 2d 1115 (Fla.1980); Reid v. Reid, 365 So. 2d 1050 (Fla. 4th DCA 1978) (order providing for $25 child support and $25 alimony with alimony to increase to $50 when child support ceases reversed because husband would be paying $50 whether or not wife had custody); Richter v. State, 344 So. 2d 889 (Fla. 4th DCA 1977) (error to award automatic yearly 5% cost of living increase); McNaughton v. McNaughton, 332 So. 2d 673 (Fla. 3d DCA) (abuse of discretion to order successive reductions in alimony where record reveals no basis for reductions), cert. denied, 345 So. 2d 424 (Fla.1977).

These cases are distinguishable from the instant case, however, in that none of the judgments incorporated the settlement agreement. In this case, the former husband agreed to the automatic increase and the final judgment incorporating that agreement was not appealed. While no case has been found where the validity of such agreements were directly at issue, there are cases where such agreements incorporated into the final judgment were enforced. See Adams v. Adams, 502 So. 2d 1301 (Fla. 1st DCA 1987); Bish v. Bish, 404 So. 2d 840 (Fla. 1st DCA 1981); Blue v. Blue, 188 So. 2d 563 (Fla. 4th DCA 1966). Further, a court can generally enforce provisions in marital settlement agreements even though the court could not order the same provisions absent an agreement. See Winset v. Fine, 565 So. 2d 794 (Fla. 3d DCA 1990) (enforcing provision of marital settlement agreement requiring husband to contribute to son’s college education even though son reached age of majority).

We hold that it was error for the trial court to dismiss the former wife’s motion for rule to show cause. On remand, we caution that our holding does not dictate a finding of contempt. The trial court must consider the former husband’s equitable defenses and whether and how the court should exercise its contempt power. The court must also consider the former husband’s petition for modification. See, e.g., Tietig v. Boggs, 578 So. 2d 838 (Fla. 3d DCA 1991), approved, 602 So. 2d 1250 (Fla.1992).

REVERSED and REMANDED.

W. SHARP and DIAMANTIS, JJ., concur.


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Citator

Cited By

  • Ballantyne v. Ballantyne, 666 So. 2d 957 (Fla. 1st DCA 1996)
    …, 551 So. 2d 1228, 1233 (Fla. 1st DCA 1989), review denied, 560 So. 2d 232 (Fla.1990) (citations omitted). We find no ambiguity in the subject child support provision. The parties are thus bound by the terms of their agreement. See Malone v. Malone, 637 So. 2d 76, 76-77 (Fla. 5th DCA 1994); Adams v. Adams, 502 So. 2d 1301 (Fla. 1st DCA 1987). We hold that the trial court abused its discretion by denying appellant’s motion for modification of the child support award. The cause is reversed and remanded with di…
  • Darwin v. Brown, 757 So. 2d 628 (Fla. 5th DCA 2000)
    …was financially overextended and unable to pay the lump sum alimony. Since the parties agreed to this formula, Darwin is not entitled to change it now and the trial court was correct in enforcing this agreement against Darwin. See Malone v. Malone, 637 So. 2d 76 (Fla. 5th DCA 1994) (provision in separation agreement incorporated into final dissolution judgment which provided for automatic increases in husband’s child support obligation based on increases in his salary was enforceable even though such provis…

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