Substance, not form, controls. See Salomon v. Salomon, 196 So.2d 111, 113 (Fla. 1967); Underwood, 64 So.2d at 288; Rubio v. Rubio, 347 So.2d 1093, 1095 (Fla. 2d DCA 1977). The trial court should assess whether (1) alimony payments are made in exchange for a property interest, (2) the payments are modifiable, (3) the payments terminate upon remarriage or death, and (4) the payments are deductible from the payor's federal income tax and taxable to the payee.
On appeal, the former wife asserts that the marital settlement agreement was an agreement to settle property rights and, therefore, was not subject to modification. See, e.g., Rubio v. Rubio, 347 So.2d 1093 (Fla. 2d DCA 1977). In the alternative, she argues that the former husband failed to meet his burden of showing a substantial change in circumstances.
The record reflects that the trial court correctly determined that the former husband is responsible only for the tax liability on the $3000 a month alimony, without consideration of any additional income received by the former wife. See Rubio v. Rubio, 576 So.2d 337, 338 (Fla. 2d DCA 1991) (finding that former husband's agreement to pay taxes derived from former wife's receipt of alimony did not require husband to pay taxes on rate resulting from wife's employment and investment income, rather, husband could calculate tax due on alimony as if wife had no other income); Rubio v. Rubio, 347 So.2d 1093, 1095-96 (Fla. 2d DCA 1977) (same). Furthermore, we find that the wife's issue of "gross up" taxes was not adequately presented to the trial court, and thus not preserved for appeal. See Castor v. State, 365 So.2d 701, 703 (Fla. 1978) (finding that reviewing courts will not consider points raised for first time on appeal); Hoffman v. Hoffman, 793 So.2d 128, 131 (Fla. 4th DCA 2001) (holding that appellate court cannot consider issue on appeal that was not argued below or raised by motion for rehearing).
We not only find no support for such a recommendation, we find that the medical payment provision of the marital settlement agreement, as adopted in the final judgment of dissolution, is nonmodifiable. See Rubio v. Rubio, 347 So.2d 1093 (Fla. 2d DCA 1977). However, as with any such provision, it is implicit that those expenses must be reasonable and necessary.
Moreover, our conclusion is in accord with principles set forth by this court in a previous appeal between the parties. In Rubio v. Rubio, 347 So.2d 1093 (Fla. 2d DCA 1977), this court addressed a similar, although not identical, issue. The court reversed an order which forced the husband to pay the tax due on the wife's earned income:
The characterization of a payment provision in a property settlement agreement as "alimony" is not controlling on the issue of whether true alimony was intended by the parties. Underwood v. Underwood, 64 So.2d 281 (Fla. 1953); Rubio v. Rubio, 347 So.2d 1093 (Fla. 2d DCA 1977); White v. White, 338 So.2d 883 (Fla. 3d DCA 1976), cert. den., 352 So.2d 176 (Fla. 1977). Permanent periodic alimony is terminated upon the death of either spouse or the remarriage of the receiving spouse.
7. The Husband agrees to pay for all reasonable and necessary medical and dental and ocular and pharmaceutical expense of the Wife indefinitely, not recklessly or needlessly incurred, including her present care by her physician Dr. Saul Holtzman of St. Petersburg, Florida, or any other physician selected by the Wife. This obligation shall terminate upon remarriage of Wife. In a prior appearance before this court in which the husband unsuccessfully sought to limit his liability under that paragraph, we said in Rubio v. Rubio, 347 So.2d 1093 (Fla. 2d DCA 1977): The obligation of appellee as to these expenses is clearly and unambiguously spelled out.
Underwood v. Underwood, 64 So.2d 281 (Fla. 1953). See also, Rubio v. Rubio, 347 So.2d 1093 (Fla. 2d DCA 1977). In other words, we should look to substance, not to form.
Jurisdiction, and therefore, modification, are dependent upon a determination of the nature of the agreement. Rubio v. Rubio, 347 So.2d 1093 (Fla. 2d DCA 1977). It is well settled that an agreement entered into to provide for alimony payments is subject to modification by the trial court. The court, however, does not have jurisdiction to modify an agreement which constitutes a settlement of property rights.
The record clearly reflects that the allocation by the parties of the responsibility for the mortgage payments, taxes, insurance, house repairs, and children's medical expenses was part of the property settlement agreement. As has been held on numerous occasions, the property settlement is not modifiable. See, e.g., Rubio v. Rubio, 347 So.2d 1093 (Fla.2d DCA 1977); Gilbert v. Gilbert, 312 So.2d 511 (Fla.3d DCA 1975); Vandervoort v. Vandervoort, 277 So.2d 43 (Fla.3d DCA 1973). Therefore, we reverse that part of the trial court's order.