Walters v. Walters

96 So. 3d 972, 2012 Fla. App. LEXIS 13207, 2012 WL 3192752
CourtDistrict Court of Appeal of Florida
DecidedAugust 8, 2012
DocketNo. 4D11-2073
StatusPublished
Cited by5 cases

This text of 96 So. 3d 972 (Walters v. Walters) 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
Walters v. Walters, 96 So. 3d 972, 2012 Fla. App. LEXIS 13207, 2012 WL 3192752 (Fla. Ct. App. 2012).

Opinion

POLEN, J.

Appellant, Kevin Walters (“Former Husband”), appeals the trial court’s final orders on his petition for modification of alimony and adjudging him in contempt of court. Former Husband appealed on six points: retroactive modification of alimony; amount of alimony in consideration of his net income; the trial court’s refusal to consider Linda Walters’ (“Former Wife”) current needs; clarification of the trial court’s temporary modification; the trial court’s failure to consider Former Husband’s health care payments for the parties’ children; and the trial court’s finding that Former Husband divested funds. We affirm as to the first two points on appeal and reverse and remand on the remainder of the points for the reasons set forth herein.

The Walters were married for approximately fourteen years, at which point they dissolved their marriage, citing that it was irretrievably broken. The couple have four children together, one of whom reached the age of majority by the time this appeal was filed, and another whom has now reached the age of majority.

Former Wife worked in hospitality at the beginning of the marriage, until she decided to focus on being a wife and mother while working part-time jobs and volunteering. Former Husband worked as the Vice President of Food and Beverages at The Breakers Hotel. The court calculated Former Husband’s annual base salary at $225,000.00 per year. Former Husband was also entitled to two different bonuses, which are estimated to equal approximately $300,000.00 per year on average. Therefore, the trial court found that Former Husband’s annual income was around $525,000.00. The court imputed Former Wife’s annual gross income at $31,000.00, anticipating that she would return to her previous salary of $51,300.00 within a few years.

The court awarded permanent periodic alimony to Former Wife, ordering payments of $5,625.00 per month, plus $60,000.00 on December 1 of each year, to be taken from Former Husband’s bonus. However, Former Husband’s income was decreased when the economy took a downturn. In 2008, Former Husband was able to pay the $60,000.00 alimony out of his bonus, but in 2009, his income was almost $100,000.00 less than what it was the year before. Despite this decrease, Former Husband still paid the total amount he was required to pay. In 2010, Former Husband’s position at The Breakers Hotel ceased to exist. At this point, while Former Husband was given a one-time severance payment and a bonus, that bonus was $54,000.00, making it impossible for For[975]*975mer Husband to pay $60,000.00. Instead, Former Husband paid Former Wife twenty percent of his bonus.

Upon hearing that his position was eliminated, Former Husband began to look for new jobs immediately. Former Husband looked for positions comparable to his job at The Breakers and attempted to do some consultation work to maintain an income. For one consulting job, Former Husband made $24,500.00, but was unable to secure any other work. Former Husband also started a company that bought and sold vintage luxury items for a profit. Even though Former Husband’s income substantially declined, he continued to pay the $5,625.00 per month in alimony and $1,520.00 per month in child support, as well as twenty percent of his bonus.

Former Husband filed a petition for modification of the final judgment of dissolution of marriage. In the petition, Former Husband sought a downward modification to be applied retroactively to the date he filed the petition, as well as a reduction or abatement of his obligations. Former Husband also requested a credit for any payments made after the petition was filed in excess of the modified amount(s). In response, Former Wife filed a motion for contempt and enforcement, alleging that Former Husband willfully and intentionally failed to pay the Former Wife the $60,000.00 payment which was due to her on December 1, 2010. The parties were ordered to mediation, which resulted in an impasse. A non-jury trial was held.

At the trial, the court informed Former Husband that his delay in notice for trial made it so the court would not retroactively apply any downward modifications to the time the petition was filed. Additionally, the court did not allow testimony as to the Former Wife’s current needs and allowed statements only about the status of the home. The court reasoned that Former Wife’s needs were already assessed at the time of final judgment and did not need to be reassessed at the time of the modification hearing. When Former Wife was asked about her new car and the costs associated therewith, the objection to discussing her needs was renewed and the trial court sustained the objection.

Following the trial, the court entered final judgment on Former Husband’s petition for modification and on Former Wife’s motion for contempt and enforcement. In the final judgment, the court expressed its concern that Former Husband made the

unilateral decision not to pay the Former Wife the full amount of alimony due, when at the time it was due he had over $60,000.00 in a Wachovia High Performance Money Market account. According to the Former Husband’s Financial Affidavit filed on December 22, 2010 he had cash available to him of $73,000.00, a retirement account worth $305,000.00 and he was earning $29,041.66 a month. He clearly had the ability to pay the $60,000.00 alimony payment to the Former Wife.

The court also expressed concerns with Former Husband’s expenditures related to his vintage business.

Ultimately, the court ordered a temporary suspension of the $60,000.00 alimony payment while monthly alimony in the amount of $5,625.00 was to continue. The trial court also denied Former Husband’s request for retroactive modification of the $60,000.00 alimony payment and child support back payments. This appeal followed.

A trial court’s order on modification of alimony is reviewed by the appellate court for an abuse of discretion. Roberts v. Roberts, 21 So.3d 888, 889 (Fla. 4th [976]*976DCA 2009) (citing Cleary v. Cleary, 872 So.2d 299 308-04 (Fla. 2d DCA 2004)).

Retroactive Modification

Former Husband argues that the trial court erred in its determination that his notice to set cause for trial was unduly delayed, which resulted in the trial court’s denial of the request for retroactive modification.

Retroactivity is the rule rather than the exception which guides the trial court’s application of discretion when modification of alimony or child support is granted. However, it is within the trial court’s discretion to determine whether to make the modification retroactive, and we find no abuse of discretion on this record.

DeSantis v. Smith, 634 So.2d 796, 797 (Fla. 4th DCA 1994). “[A]n award of retroactive alimony must be based on the receiving spouse’s need for alimony and the paying spouse’s ability to pay.” Valentine v. Van Sickle, 42 So.3d 267, 274 (Fla. 2d DCA 2010). In Alpert v. Alpert, 886 So.2d 999 (Fla. 2d DCA 2004), the appellate court reversed as to the award of retroactive alimony because the record did not support the findings that the husband had the ability to pay the amount awarded. Id. at 1002.

This case is distinguished from Alpert where the trial court was unable to determine the sources and amount of the former husband’s income during the time period in question. Id.

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Cite This Page — Counsel Stack

Bluebook (online)
96 So. 3d 972, 2012 Fla. App. LEXIS 13207, 2012 WL 3192752, Counsel Stack Legal Research, https://law.counselstack.com/opinion/walters-v-walters-fladistctapp-2012.