Plevy v. Plevy

District Court of Appeal of Florida

Plevy v. Plevy

517 So. 2d 128, 13 Fla. L. Weekly 109, 1987 Fla. App. LEXIS 11781, 1987 WL 3346

CourtDistrict Court of Appeal of Florida

DecidedDecember 30, 1987

DocketNo. 85-2157

StatusPublished

This text of 517 So. 2d 128 (Plevy v. Plevy) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Plevy v. Plevy, 517 So. 2d 128, 13 Fla. L. Weekly 109, 1987 Fla. App. LEXIS 11781, 1987 WL 3346 (Fla. Ct. App. 1987).

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HERSEY, Chief Judge.

Muriel Plevy appeals from an order of modification in post-dissolution proceedings. The issue on appeal is whether the trial court abused its discretion in decreasing, rather than increasing, the wife’s alimony. The matter was referred to a general master and for the second time in this case the trial court approved the master’s report BEFORE hearing and consideration of timely-filed objections. See Plevy v. Plevy, 466 So.2d 1219 (Fla. 4th DCA 1985). We again reverse and remand with instructions to the trial court to follow the dictates of Berkheimer v. Berkheimer, 466 So.2d 1219 (Fla. 4th DCA 1985).

[129]*129Because the matter is already before us and for reasons of judicial economy we have considered this appeal on the merits despite the procedural error. Preliminary we note an error in the trial court’s finding that Muriel Plevy was a Certified Public Accountant. In addition, the fact that she was on the verge of being terminated from her employment occasioned by medically-necessitated absenteeism (which has now in fact occurred) should have been taken into account by the court.

Regardless of the foregoing, and based solely on the record made below, we determine that permanent periodic alimony should have been increased rather than decreased. The husband, a doctor, has experienced a substantial increase in earnings. The wife, on the other hand, has faced continually increasing expenses and her health has made it difficult to improve her economic situation. We believe the standard articulated in Canakaris v. Canakaris, 382 So.2d 1197 (Fla.1980), mandates a finding that failure to give the wife an increase in the amount of permanent periodic alimony was an abuse of discretion.

The husband’s reliance on Cann v. Cann, 334 So.2d 325 (Fla. 1st DCA 1976), and Friedman v. Friedman, 366 So.2d 820 (Fla. 3d DCA), cert. denied, 376 So.2d 71 (Fla.1979), is totally misplaced. It has not been shown that under the present circumstances Muriel Plevy is or can be self-supporting. On the contrary, Wolfe v. Wolfe, 424 So.2d 32 (Fla. 4th DCA 1982), and Powell v. Powell, 386 So.2d 1214 (Fla. 3d DCA 1980), dictate an increase in alimony under such circumstances as we find here.

Donald Plevy cross appeals, challenging failure of the trial court to terminate alimony. We affirm on the cross appeal.

REVERSED AND REMANDED.

DELL, J. concurs. STONE, J., concurs in part; dissents in part with opinion.

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HERSEY, Chief Judge.

Muriel Plevy appeals from an order of modification in post-dissolution proceedings. The issue on appeal is whether the trial court abused its discretion in decreasing, rather than increasing, the wife’s alimony. The matter was referred to a general master and for the second time in this case the trial court approved the master’s report BEFORE hearing and consideration of timely-filed objections. See Plevy v. Plevy, 466 So.2d 1219 (Fla. 4th DCA 1985). We again reverse and remand with instructions to the trial court to follow the dictates of Berkheimer v. Berkheimer, 466 So.2d 1219 (Fla. 4th DCA 1985).

[129]*129Because the matter is already before us and for reasons of judicial economy we have considered this appeal on the merits despite the procedural error. Preliminary we note an error in the trial court’s finding that Muriel Plevy was a Certified Public Accountant. In addition, the fact that she was on the verge of being terminated from her employment occasioned by medically-necessitated absenteeism (which has now in fact occurred) should have been taken into account by the court.

Regardless of the foregoing, and based solely on the record made below, we determine that permanent periodic alimony should have been increased rather than decreased. The husband, a doctor, has experienced a substantial increase in earnings. The wife, on the other hand, has faced continually increasing expenses and her health has made it difficult to improve her economic situation. We believe the standard articulated in Canakaris v. Canakaris, 382 So.2d 1197 (Fla.1980), mandates a finding that failure to give the wife an increase in the amount of permanent periodic alimony was an abuse of discretion.

The husband’s reliance on Cann v. Cann, 334 So.2d 325 (Fla. 1st DCA 1976), and Friedman v. Friedman, 366 So.2d 820 (Fla. 3d DCA), cert. denied, 376 So.2d 71 (Fla.1979), is totally misplaced. It has not been shown that under the present circumstances Muriel Plevy is or can be self-supporting. On the contrary, Wolfe v. Wolfe, 424 So.2d 32 (Fla. 4th DCA 1982), and Powell v. Powell, 386 So.2d 1214 (Fla. 3d DCA 1980), dictate an increase in alimony under such circumstances as we find here.

Donald Plevy cross appeals, challenging failure of the trial court to terminate alimony. We affirm on the cross appeal.

REVERSED AND REMANDED.

DELL, J. concurs. STONE, J., concurs in part; dissents in part with opinion.

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517 So. 2d 128, 13 Fla. L. Weekly 109, 1987 Fla. App. LEXIS 11781, 1987 WL 3346, Counsel Stack Legal Research, https://law.counselstack.com/opinion/plevy-v-plevy-fladistctapp-1987.

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