NICOLE KRAUS v. THOMAS KRAUS

• Court: District Court of Appeal of Florida
• Decided: August 24, 2022
• Docket: 21-0740
• Status: Published

Opinion

Third District Court of Appeal State of Florida

Opinion filed August 24, 2022. Not final until disposition of timely filed motion for rehearing.

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No. 3D21-740 Lower Tribunal No. 15-659-P ________________

Nicole Kraus, Appellant,

vs.

Thomas Kraus, Appellee.

An Appeal from the Circuit Court for Monroe County, Luis Garcia, Judge.

Thomas-McDonald Law Firm, P.A., and Aislynn Thomas McDonald, for appellant.

Twig, Trade, & Tribunal, PLLC, and Morgan L. Weinstein (Fort Lauderdale), for appellee.

Before LOGUE, LOBREE, and BOKOR, JJ.

LOGUE, J. We affirm both the trial court’s denial of Appellant’s, Nicole Kraus

(“former wife”), motion for judgment on the pleadings, and the trial court’s

order granting Appellee’s, Thomas Kraus (“former husband”), Third

Supplemental Petition for Modification of Alimony.

The trial court properly denied the former wife’s motion for judgment

on the pleadings. 1 “A motion for judgment on the pleadings must be decided

wholly on the pleadings and is granted only if the pleadings establish that the

movant is entitled to judgment as a matter of law.” Perez Escalona v. City of

Miami Beach, 227 So. 3d 722, 724 (Fla. 3d DCA 2017) (internal quotations

omitted).

Section 61.14, Florida Statutes (2022), “gives an ex-spouse the right

to file a petition for an increase in alimony where ‘the circumstances or the

financial ability of either party has changed.’” Bedell v. Bedell, 583 So. 2d

1005, 1007 (Fla. 1991) (quoting § 61.14, Fla. Stat.). The former husband’s

petition alleged that the former wife discharged the marital debt she assumed

pursuant to the marital settlement agreement. It further alleged that this

discharge both increased her ability to pay alimony by reducing her own debt,

and financially injured the former husband by leaving him open to

1 We review a trial court’s order denying a motion for judgment on the pleadings de novo. Walker v. Figarola 59 So. 3d 188, 190 (Fla. 3d DCA 2011).

2 subsequent tax issues. Pursuant to Bedell, this alleged change in the former

wife’s ability to pay was sufficient to petition for a modification of alimony.

The trial court was permitted to consider evidence of financial hardship

due to the former husband’s medical condition and loss of income. The

former wife argues that these issues were not included in the pleadings and

therefore the trial court’s consideration of such evidence was a violation of

the former wife’s right to fair notice. “Under Florida law, a trial court is without

jurisdiction to hear and determine matters which are not the subject of

appropriate pleadings and notice.” Todaro v. Todaro, 704 So. 2d 138, 139

(Fla. 4th DCA 1997) (internal quotations omitted). However, “when an issue

is tried by implied consent, due process concerns are alleviated.” Nisr v.

Barakat, 88 So. 3d 212, 212 (Fla. 3d DCA 2011). “Implied consent arises

when arguments and evidence are presented on the issue without objection

by the opposing party.” C.J. v. Dep't of Children & Family Servs., 9 So. 3d

750, 755 (Fla. 2d DCA 2009).

The former husband’s financial hardship due to his medical condition

and loss of income were tried by consent. The former wife not only failed to

object to the introduction of this testimony in the hearing, but specifically

engaged in questioning regarding the former husband’s heart condition and

3 his loss of income. Because these issues were tried by consent, it was not

error for the trial court to consider them in its order.

Finally, the trial court’s order modifying alimony was supported by

competent substantial evidence. 2 The former husband presented testimony

and evidence that the former wife relieved herself of her obligation to assume

the marital debt by filing for bankruptcy, and that her salary had considerably

increased, constituting a permanent and substantial change in her ability to

pay alimony.

Affirmed.

2 “A trial court's Order regarding modification of alimony may not be disturbed on appeal in the absence of a showing of a clear abuse of discretion.” Lopez v. Lopez, 920 So. 2d 1165, 1167 (Fla. 3d DCA 2006). Generally, an appellate court will not disturb a trial court’s modification of alimony that is supported by competent substantial evidence. See Driggers v. Driggers, 127 So. 3d 762, 764 (Fla. 2d DCA 2013).