WALTER BUTLER, APPELLANT,
v.
SHIRLEY RIEDEL BUTLER, APPELLEE
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In this divorce appeal, the court addresses whether a chancellor can modify a final decree incorporating a property settlement agreement to change provisions regarding the children's religious education and schooling. The court holds that while decrees concerning children's welfare are modifiable, modification requires a showing that the change advances the children's welfare, not merely the mother's convenience.
The court holds that decrees pertaining to children's welfare are interlocutory and may be modified as the children's welfare requires, but modification requires an evidentiary basis showing that the change advances the children's welfare. The court reverses the modification orders regarding future schooling and support obligations but affirms the portion requiring the father to reimburse expenses already incurred.
“Decrees pertaining to the welfare of the children are, in a sense, interlocutory and because of this they may be modified, from time to time, as the welfare of the children requires.”
Establishes the foundational principle that child welfare decrees can be modified despite being part of a final divorce decree.
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Join FLexlaw to unlock all legal intelligenceWalter and Shirley Butler entered into a comprehensive property settlement agreement dated April 8, 1960, which was incorporated into a final divorce …
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This is an appeal from a post decretal order in a divorce suit. The orders appealed are: (1) an order modifying final decree of divorce; and (2) an amended order modifying the same decree. Both orders appealed were entered as a result of the same hearing.
The appellant and the appellee entered into an extensive property settlement *438agreement dated April 8, 1960. A final decree of divorce was entered on May 24, 1960 and this decree “ratified, approved and confirmed in all respects” the property settlement agreement between the parties. Thereafter on November 4, 1960 the former wife filed a motion entitled “Petition for Interpretation of Portions of Property Settlement Agreement.” The Chancellor correctly considered this petition as a petition for modification of the final decree.
After the taking of testimony the chancellor granted the modification of the decree in certain respects. It is this order which is appealed and we reverse in part.
The agreement which was made a part of the final decree provided that the mother should have custody of the children and that the children should be raised in the Roman Catholic Church. It was also agreed that the mother would give the children a proper Roman Catholic education, if such should be reasonably available.
The father has appealed the orders modifying the final decree and assigns as error, first, that portion of the order which allows the mother to enroll certain of the children in a private, non-Catholic school, and, second, that portion of the order which requires the father to pay the additional expenses of the private school. He argues that the chancellor was without power to make the changes. This position is not well taken. Decrees pertaining to the welfare of the children are, in a sense, interlocutory and because of this they may be modified, from time to time, as the welfare of the children requires. Lee v. Lee, 157 Fla. 439, 26 So.2d 177; Bezanilla v. Bezanilla, Fla.1953, 65 So.2d 754; Schraner v. Schraner, Fla.App.1959, 110 So.2d 33; Johnson v. Johnson, Fla.App.1959, 114 So.2d 338.
It is next urged that the chancellor erred because the record is devoid of a legal basis for the changes mentioned. The power of a chancellor to modify a final decree of divorce in accordance with the welfare of the children is one which must be carefully used. An examination of the record in this case reveals that it was not shown that the welfare of the children would be advanced by the changes made. It appears that there was certain difficulty and inconvenience to the mother in carrying out the provisions of the agreement she had made. This is not sufficient reason to modify and change the agreement of the parties which the court has ratified. Cf. Eisinger v. Eisinger, Fla.1957, 95 So.2d 502; Stanley v. Stanley, 158 Fla. 402, 28 So.2d 694.
It having been determined that there was no basis in the testimony for an order modifying the final decree by changing the provisions for the children’s schooling, it follows that the provision changing the amount of support which the father is to be required to pay in the future for the different schooling must also be reversed. But the amount which the father is ordered to pay for expenses already incurred by the mother at the time of the hearing is not shown to have been improperly incurred; therefore, the portion of the order of March 3, 1961, directing the father to pay certain amounts for schooling already received by the children, is affirmed.
Accordingly, the orders appealed are reversed in part by striking from the order of March 3, 1961, paragraphs numbered “1. a.” and “1. c.” and by striking from the order of April 20, 1961, paragraphs numbered “1. (a)” and “1. (b)” and paragraph number “2.” In all other respects the orders are affirmed.
Affirmed in part and reversed in part.
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Hegler v. Hegler, 383 So. 2d 1134 (Fla. 5th DCA 1980)…v. Wells, 298 So. 2d 493 (Fla. 1st DCA 1974). “Decrees pertaining to the welfare of the children are, in a sense, interlocutory and because of this they may be modified, from time to time, as the welfare of the children requires.” Butler v. Butler, 132 So. 2d 437 (Fla. 3d DCA 1961). . § 61.1304(1) and (5), Fla.Stat. (1977). See also: § 61.1308 Fla.Stat. (1977). . § 61.1308(1)(b), Fla.Stat. (1977). . § 61.1308(1)(c), Fla.Stat. (1977). . Code 1957 Art. 16, § 184 to 207. Maryland adopted the Uniform Act in…
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Bolton v. Patricia H. (Bolton) Gordon, 201 So. 2d 754 (Fla. 4th DCA 1967)…the continuing power of a court to modify a custody order upon a substantial change of circumstances is not affected by the fact that the decree incorporated any stipulation of the divorced parties respecting custody. Butler v. Butler, Fla.App.1961, 132 So. 2d 437; Annot., 73 A.L.R.2d 1444. Therefore, the chancellor was not bound by the non-waiver provision in the stipulation adopted in the original decree insofar as it related to child custody. But this is not essential to our decision. The chancellor found…
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Sirkin v. Sirkin, 204 So. 2d 13 (Fla. 3d DCA 1967)…law; however, they are not the only cases, nor are they the latest cases in point of time. Perla v. Perla (Fla.1952) 58 So. 2d 689, 690; Sedell v. Sedell (Fla.App. 1st Dist., 1958) 100 So. 2d 639, 642; and Butler v. Butler (Fla.App. 3rd Dist., 1961) 132 So. 2d 437, 438. In Sedell, the court, while citing the Lee case with approval, wrote as follows: “Provisions of a separation agreement or final decree relating to the support, [*16] care and custody of children are always subject to review and approval by th…
Previewing 3 of 6 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Lee v. Manfred B. Lee, 157 Fla. 439 (Fla. 1946)
- Throwbridge Hull Stanley v. Stanley, 158 Fla. 402 (Fla. 1947)
- Rambo v. Mayo, 65 So. 2d 754 (Fla. 1953)
- Bezanilla v. Bezanilla, 65 So. 2d 754 (Fla. 1953)
- Schraner v. Betty Schraner (Emerson), 110 So. 2d 33 (Fla. 1st DCA 1959)
- Johnson v. Johnson, 114 So. 2d 338 (Fla. 1st DCA 1959)
- Eisinger v. Eisinger, 95 So. 2d 502 (Fla. 1957)