JOHN FORTE, APPELLANT,
v.
MARY FORTE, APPELLEE

Fla. 3d DCA | 1975-10-07
Nos. 75-215, 75-597
Before HENDRY, HAVERFIELD and NATHAN, JJ.
320 So. 2d 446 Florida District Court of Appeal, Third District (1975) Negative Treatment
Cited by 18 cases

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Synopsis

In this consolidated interlocutory appeal, a husband challenged a trial court's modification of a separation agreement requiring him to purchase a home for his ex-wife and children. The appellate court affirmed the trial court's findings of bad faith and its modification of the purchase price from $65,000 to $75,000, holding that housing provisions directly relate to child support and are subject to modification, and that inflation justified the increase.


Holding

The court affirmed both orders, holding that: (1) the housing provision directly relates to the maintenance and support of the children and is thus subject to court modification; (2) the trial court properly took judicial notice of inflation between 1972 and 1975, and the record contained expert testimony supporting the increase to $75,000; and (3) ample evidence supported the trial court's finding that the husband failed to act in good faith.


Headnotes

[1] A court may modify provisions of a separation agreement relating to child support and maintenance, including housing, when circumstances indicate it is necessary for the…

[2] Courts may take judicial notice of inflation and rising costs of living when interpreting or modifying financial provisions of a separation agreement.

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Key Quotes

“The law in Florida is well settled that provisions of a separation agreement relating to the support, care and custody of children are always subject to review and approval by the court, the guiding star being the best interests and welfare of the children.”

Establishes the foundational principle that child support-related provisions are always subject to modification

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Facts & Procedural History

John and Mary Forte divorced on April 25, 1972, with a separation agreement incorporated into the final judgment. The agreement gave Mary Forte two op…

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Opinion of the Court
PER CURIAM.

PER CURIAM.

This is the consolidation of two interlocutory appeals by the husband, John Forte, petitioner in the trial court. In the first, he seeks review of the order of January 29, 1975, on motions to enforce the property settlement agreement. In the second, he seeks review of the order on the husband’s motion to enforce the order of January 29, 1975. On April 25, 1972, the marriage of John Forte and Mary Forte was dissolved. The separation agreement entered into by the parties on April 13, 1972, was incorporated within the final judgment of dissolution of marriage.

Under the terms of the agreement, Mary Forte was afforded an option with respect to housing and the right to purchase housing. As the first alternative, she had the right to select a homesite of a total value of, and not to exceed $15,000 and thereafter to cause John Forte to construct a home upon that site which should contain not more than 2,500 square feet under roof and have a construction cost of not more than $50,000 at the husband’s actual cost. In the event that the wife exercised her option under this provision, the husband was required to assist the wife in the design of the home. The second alternative available to Mary Forte was to require John Forte to purchase a home for a sum not to exceed $65,000.

In either event, under the terms of the agreement, title to the house was to be taken in the husband’s name and Mary Forte had the right to later purchase the home from John Forte for the amount of money expended by him in constructing or purchasing it.

In the event that Mary Forte failed to exercise either option, the agreement provided that John Forte would pay to Mary Forte additional support of $350 per month to be used by her and their two minor children for housing expenses. The agreement further provided that:

“In the event that the Husband refuses to perform any of his obligations in accordance with Paragraphs 8 and 9 above, providing that the Wife has rendered performance in accordance with the provisions thereof, then the time limit set forth in such preceding paragraphs shall be extended until the disagreement between the parties has been resolved.”

In March of 1973, John Forte filed a motion to enforce the terms of the agrees ment, contending that the wife had elected to cause a house to be constructed, but that she failed to timely provide him with plans for the construction as provided in the agreement. He sought an order either compelling that the plans be furnished, or discharging him from the obligation to have a house constructed. At the hearing on the motion, the architect selected by Mary Forte to design the house, testified that the plans were 75 per cent completed. The court required him to complete the plans within three weeks. When the plans were submitted to John Forte for approval and bids were obtained, it became apparent that the house could not be constructed within the agreed price. Mary Forte then sought to revert to the second option, the purchase of a home.

On January 29, 1975, after hearing extensive testimony, the trial judge found that the husband acted in bad faith in his negotiations with the wife as to constructing or purchasing a home, and entered an order on motions to enforce property settlement agreement, providing that

“(a) John Forte shall purchase for the use and benefit of Mary Forte a residential home to be selected by Mary Forte within sixty (60) days of January 10, 1975, the purchase price of which shall not exceed $75,000.

(b) That Mary Forte shall have the option to purchase the said house including all appurtenances thereto from John Forte for the sum of $70,000.” (emphasis added)

Subsequently, John Forte filed a motion to enforce the order of January 29, 1975, since Mary Forte had not complied within sixty days. Following a hearing, the court entered an order denying the motion and directing John Forte to purchase the house selected by Mary Forte.

There are two separate appeals in this case, one from each order. The two points presented by John Forte on appeal, in substance, are (1) whether the court erred in finding that he had been guilty of bad faith. If so, then Mary Forte should be estopped from obtaining any house, but should be required to receive the $350 per month for housing purposes; (2) whether the court had the authority to order John Forte to pay $75,000 for a house when the agreement called for purchase of a house by him for up to $65,000. He contends that the court, in effect, has modified a portion of the separation agreement which does not relate to alimony or support monies.

The law in Florida is well settled that provisions of a separation agreement relating to the support, care and custody of children are always subject to review and approval by the court, the guiding star being the best interests and welfare of the children. Lang v. Lang, Fla.App.1971, 252 So. 2d 809 and cases cited therein. Interpretation or modification of a separation agreement affecting welfare of children is not only permissible but obligatory where the circumstances so indicate. Lang v. Lang, supra. According to Sirkin v. Sirkin, Fla.App.1967, 204 So. 2d 13, there is a continuing obligation of a father to provide living quarters as an element of support for the children. Therefore, the provision for housing for Mary Forte and the two minor children directly relates to the maintenance and support of the children and it was proper for the court to modify such provision.

As in Stanley v. Stanley, 1947, 158 Fla. 402, 28 So. 2d 694, where the Florida Supreme Court took judicial knowledge of the rise in the cost of living, we now take judicial knowledge of the fact of inflation from 1972 when the separation agreement was executed and the final judgment was entered in this cause until 1975, when the two orders now on appeal were entered. Even if such were not the case, the record of the hearings before the trial judge is replete with expert testimony as to the rise in the cost of construction or purchase of a single family home from 1972 to 1975. We find no error in the modification by the trial judge from a $65,000 home to a $75,000 home.

John Forte’s argument that Mary Forte did not comply with the January 29, 1975, order is erroneous. The order states that she must select a home within 60 days, which she did; not that the deal must close. As to whether the husband failed to act in the spirit of cooperation and good faith, the record contains ample evidence to support the court’s finding that both sides failed to do so to a certain extent, but the husband to the greater extent.

Therefore, for the reasons stated and upon the authorities cited, the orders herein appealed are

Affirmed.


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Citator

Cited By

  • Desilets v. Desilets, 377 So. 2d 761 (Fla. 2d DCA 1979)
    …975 has been seriously eroded by the increase in the cost of living produced by inflation; of this we may take judicial notice. Stanley v. Stanley, 158 Fla. 402, 28 So. 2d 694 (1947); Pope v. Pope, 342 So. 2d 1000 (Fla.4th DCA 1977); Forte v. Forte, 320 So. 2d 446 (Fla.3d DCA 1975), cert. denied, 351 So. 2d 406 (Fla.1977); Annot., 18 ALR2d 10 at § 5 (1951). In the cases cited, it was held that a rise in the cost of living is a change of circumstances which may be properly considered by a trial judge in increa…
  • Nelson v. Nelson, 433 So. 2d 1015 (Fla. 3d DCA 1983)
    …ort provisions while the children were in the husband’s care. This extrajudicial custody modification, which is the genesis for the present residence of the children, was never approved by any court and is, in my view, a nullity. See Forte v. Forte, 320 So. 2d 446 (Fla. 3d DCA 1975), cert. denied mem., 351 So. 2d 406 (Fla.1977); Lang v. Lang, 252 So. 2d 809 (Fla. 4th DCA 1971). Because no other court had dealt with the custody status of the children, the proper forum to litigate custody was the court that ent…
    1 / 2
  • Powell v. Powell, 386 So. 2d 1214 (Fla. 3d DCA 1980)
    …975 has been seriously eroded by the increase in the cost of living produced by inflation; of this we may take judicial notice. Stanley v. Stanley, 158 Fla. 402, 28 So. 2d 694 (1947); Pope v. Pope, 342 So. 2d 1000 (Fla.4th DCA 1977); Forte v. Forte, 320 So. 2d 446 (Fla.3d DCA 1975), cert. denied, 351 So. 2d 406 (Fla.1977); Annot., 18 A.L. R.2d 10 at § 5 (1951). In the cases cited, it was held that a rise in the cost of living is a change of circumstances which may be properly considered by a trial judge in in…

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