Suarez v. Sanchez

43 So. 3d 118, 2010 Fla. App. LEXIS 12186, 2010 WL 3239168
CourtDistrict Court of Appeal of Florida
DecidedAugust 18, 2010
DocketNo. 3D09-1593
StatusPublished
Cited by4 cases

This text of 43 So. 3d 118 (Suarez v. Sanchez) 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.

Bluebook
Suarez v. Sanchez, 43 So. 3d 118, 2010 Fla. App. LEXIS 12186, 2010 WL 3239168 (Fla. Ct. App. 2010).

Opinion

ROTHENBERG, J.

The former wife, Concepcion Suarez, appeals from a post-dissolution order terminating, effective June 2008, the former husband’s, Victor Sanchez, obligation to pay permanent periodic alimony; decreasing the amount of the former husband’s alimony obligation for the months of January to May 2008; and denying the former wife’s motion for attorney’s fees. We conclude that the trial court abused its discretion by terminating the former husband’s obligation to pay permanent periodic alimony as of June 2008, and decreasing the former husband’s alimony obligations as to the months of January to May 2008, but did not abuse its discretion by denying the former wife’s request for attorney’s fees.

In June 2005, the former husband petitioned for divorce, and thereafter, in April 2006, a final judgment of dissolution of marriage, incorporating the parties’ marital settlement agreement (“MSA”), was entered. Under the MSA, the former husband, who was then seventy-nine years old and employed, agreed to pay the former [120]*120wife $1,500 per month in permanent periodic alimony. The MSA also detailed the division of the parties’ liabilities and assets, including the parties’ retirement accounts, pensions, and proceeds from the pending sale of their marital home. Following the division of the retirement accounts and the sale of the marital home, the former husband received approximately $209,000, whereas the former wife received $168,000. In 2006, the year the parties entered into the MSA, the former husband earned $36,666 in wages and received $33,921 from his pension and $20,293 in social security benefits.

In August 2007, less than one-and-a-half years after the parties entered into the MSA, the former husband filed a Motion for Modification and Termination of Alimony and for Other Relief (“Motion to Terminate/Modify”), asserting that there had been an involuntary, permanent, and substantial change in circumstances that was not contemplated when the parties entered into the MSA, including that he has since retired,1 his income has decreased, the former wife has substantial assets, and the former wife’s needs have decreased. Thereafter, in February 2009, the former wife filed a motion for contempt and sanctions, asserting that the former husband failed to make certain alimony payments.

At the final hearing on the former husband’s and former wife’s motions, the evidence demonstrated that the former husband, who was then eighty-two years old, stopped working on June 20, 2008, when he was approximately eighty-one years old. Thereafter, he continued to receive social security benefits and pension payments, totaling over $58,000 in 2008.2 Further, the former husband’s financial affidavit dated April 2, 2009, reflects that his monthly expenses total over $4,000, and he has $65,000 remaining in his Individual Retirement Account. On the other hand, the former wife’s financial affidavit reflects that her monthly gross income from social security, her pension, and interest and dividends totals $1,7663 and her monthly expenses total $3,370. Further, the former wife testified that she has approximately $94,000 in certificates of deposit. Thus, the record reflects that the former husband’s gross annual income is $58,000, whereas the former wife’s gross annual income is $21,192, and the former husband’s reported annual expenses equal $48,000, whereas the former wife’s reported annual expenses equal $40,404.

Following the hearing, the trial court entered an order terminating the former husband’s alimony obligation effective June 2008; modifying the former husband’s alimony obligation for the months of January to May 2008, from $1,500 per month to $975 per month, with a $400 credit for the amounts paid during those months; and denying the parties’ motions for attorneys’ fees, finding that both parties have the need, but neither party has [121]*121the ability to pay. The former wife’s appeal followed.

The former wife contends that the trial court abused its discretion by terminating the former husband’s alimony obligations effective June 2008 because the change in circumstances — retirement at the age of eighty-one — was contemplated when the parties entered into the MSA, voluntary as he opted to retire, and neither substantial nor material, and because the former husband failed to establish that he is no longer able to pay any amount of alimony or that the former wife is capable of self-support. See Woolf v. Woolf 901 So.2d 905, 912 (Fla. 4th DCA 2005) (holding that the abuse of discretion standard of review applies to orders modifying alimony). Although we conclude that the former husband’s retirement amounts to a substantial and material change in circumstances, we find that the trial court abused its discretion by terminating the former husband’s alimony obligation. Therefore, we reverse the portion of the order under review terminating the former husband’s alimony obligation, but remand to allow the trial court to consider a modification of the former husband’s alimony obligation to the former wife.

“[T]o justify a modification of alimony, the moving party must show: (1) a substantial change in circumstances; (2) that the change was not contemplated at the final judgment of dissolution; and (8) that the change is sufficient, material, permanent, and involuntary.” Kusick v. Kusick, 944 So.2d 1081, 1082 (Fla. 2d DCA 2006); see also § 61.14(l)(a), Fla. Stat. (2009) (“When the parties enter into an agreement for ... alimony, ... and the circumstances or the financial ability of either party changes ..., either party may apply to the circuit court ... for an order decreasing or increasing the amount of ... alimony, and the court has jurisdiction to make orders as equity requires, with due regard to the changed circumstances or the financial ability of the parties ..., decreasing, increasing, or confirming the amount of ... alimony provided for in the agreement.”); Zeballos v. Zeballos, 951 So.2d 972, 974 (Fla. 4th DCA 2007); Woolf 901 So.2d at 912. Further, to terminate permanent periodic alimony, “the complaining party must allege that he or she is no longer able to pay any amount of alimony or that the recipient is able to support himself or herself through his or her own efforts and resources.” McManus v. McManus, 638 So.2d 1051, 1052 (Fla. 2d DCA 1994) (emphasis added); see also Weiser v. Weiser, 657 So.2d 1276, 1276 (Fla. 4th DCA 1995) (vacating modification order relieving former spouse of obligation to pay permanent alimony where trial court did not find that former spouse “was unable to pay any amount of alimony”). In addition, the party seeking the modification of alimony carries a heavier burden when the alimony is set by the parties’ agreement. Woolf, 901 So.2d at 912.

In Pimm v. Pimm, 601 So.2d 534, 537 (Fla.1992), the Florida Supreme Court set forth relevant factors that must be considered when determining whether a voluntary retirement is reasonable, and thus, may be considered as a change in circumstances when addressing a motion to modify alimony:

In determining whether a voluntary retirement is reasonable, the court must consider the payor’s age, health, and motivation for retirement, as well as the type of work the payor performs and the age at which others engaged in that line of work normally retire....

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Bluebook (online)
43 So. 3d 118, 2010 Fla. App. LEXIS 12186, 2010 WL 3239168, Counsel Stack Legal Research, https://law.counselstack.com/opinion/suarez-v-sanchez-fladistctapp-2010.