
    Cecelia M. WILSON, Appellant, v. Americus H. WILSON, Appellee.
    No. 84-2118.
    District Court of Appeal of Florida, Fourth District.
    April 10, 1985.
    
      Daisy B. Sammons, West Palm Beach, for appellant.
    Timothy W. Gaskill of DeSantis, Cook, Gaskill & Silverman, P.A., North Palm Beach, for appellee.
   HURLEY, Judge.

This appeal challenges a post-judgment order ousting a mother and child from their home which had been awarded as an incident of child support. We reverse and remand.

The parties to this appeal were never married, but lived together for several years. Along with the mother’s children from a previous marriage, they resided in a home which the couple purchased. During the relationship, the parties had one child.

The parties eventually decided to separate and, therefore, petitioned the trial court to determine property and custody rights. A final judgment was entered which, among other things, awarded the mother custody of the child plus sole and exclusive use of the parties’ home. The judgment indicated that the award was made to provide “a home for the parties’ ... minor child,” and stated that her occupancy was to “continue until such time as (the mother) marries or the parties’ ... child reaches eighteen (18) years of age, becomes self-supporting, marries or dies, or until the home is permanently inhabited by an additional party.” No appeal was taken from this judgment.

At some point subsequent to entry of the final judgment, the mother’s elder daughter (from a former marriage) and the daughter’s husband moved in with the mother and younger daughter. The father, relying on the resident restriction clause, filed a motion to terminate the mother’s exclusive use and possession. The mother countered with an answer and affirmative defense which asserted that the resident restriction clause was contrary to case law and should not be enforced. The trial court ruled for the father and this appeal ensued.

We believe the trial court erred by not considering the substance of the mother’s pleading. Although styled as an answer and affirmative defense, it sought modification of the support provision in the final judgment by eliminating the resident restriction clause. It is axiomatic “that child support agreements are always subject to judicial modification whenever there is a sufficient showing of a change of circumstances from the time of the award....” Granville v. Granville, 445 So.2d 362, 364 (Fla. 1st DCA 1984). The same holds true for modification of a provision for exclusive possession of realty. See Briner v. Briner, 425 So.2d 211 (Fla. 4th DCA 1983). In our view, the recent development in the law governing resident restriction clauses, see, e.g., McClay v. McClay, 447 So.2d 1026 (Fla. 4th DCA 1984); Tyler v. Tyler, 427 So.2d 1027 (Fla. 2d DCA 1983), provides ample justification for modifying the provision in question. Such action is clearly in the best interest of the minor child for it ensures her beneficial use of the home. This decision, of course, does not restrict the father from seeking appropriate relief in the future should that become necessary. See Tyler v. Tyler, supra.

Accordingly, the order on appeal is reversed and the cause is remanded with instructions to treat the mother’s pleading as a petition for modification.

REVERSED AND REMANDED.

GLICKSTEIN, J., concurs with opinion.

LETTS, J., dissents with opinion.

GLICKSTEIN, Judge,

concurring.

I agree with some of the thoughts expressed by both of my colleagues. Nevertheless, the matter should be reversed and remanded for the taking of testimony to resolve the compelling interests of the child, on the one hand, and the legitimate property rights of the father.

Square one, to me, is the intent of the final judgment which, in my view, cannot be determined by simply reading the phrase which the original trial judge added in her handwriting at the end of paragraph 4; namely:

or until the home is permanently inhabited by an additional party.

Did she intend that if the additional party were a permanent nurse for the child, then the wife lost exclusive use and possession? The key is the identity of the additional party and the common sense effect of that party’s inhabiting the home. The successor trial judge, in my opinion, should not have stricken the wife’s affirmative defense which identified the occupants as the wife’s daughter and her husband. That successor trial judge being unavailable to resolve the matter now, his successor should be able to resolve the competing tensions in this matter not only by a reasonable interpretation of the language but by considering options available to the parties. For example, should the court find the presence of the wife’s other daughter and the daughter’s husband offensive to his sense of fairness to the husband, he could order the continued possession to be contingent upon their immediate removal should the facts show the occupancy to be a free ride at appellee’s expense. In short, a creative remedy should be available on remand.

LETTS, Judge,

dissenting.

In my view, the original award of exclusive use of the home was in and of itself unusual under the facts of this case. To add to this oddity, we now construe a pleading, perfectly clear in its statement, to mean something totally foreign to what it alleges. We do not enjoy such license.

Moreover, we conclude that the moving in of the mother’s other emancipated daughter and son-in-law, is a modification of the child support for the minor daughter of the father. I fail to see how.

It is stated that the modification is necessary to ensure the minor child’s continued use of the home. That end can clearly be met by the departure of the emancipated daughter and her husband. There is no showing that they (the married couple) are contributing to the support of the minor child.

We have, in effect, amended the pleadings, “tried” this case de novo and substituted our judgment for that of the trial court.  