Weinstein v. Weinstein

447 So. 2d 309, 1984 Fla. App. LEXIS 11604
CourtDistrict Court of Appeal of Florida
DecidedFebruary 1, 1984
DocketNo. 83-12
StatusPublished
Cited by2 cases

This text of 447 So. 2d 309 (Weinstein v. Weinstein) 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
Weinstein v. Weinstein, 447 So. 2d 309, 1984 Fla. App. LEXIS 11604 (Fla. Ct. App. 1984).

Opinion

GLICKSTEIN, Judge.

This is an appeal from an order, denying the wife’s petition for modification. We reverse and remand as to the wife’s petition. There is no cross appeal by the husband.

The parties’ sixteen year marriage was dissolved by final judgment in 1979. At the time of dissolution, the wife was forty-seven years old and a housewife; the husband, a medical doctor. There were two minor children, whose custody was awarded the wife, who was also granted exclusive use and possession of the marital home and its furnishings until the elder minor child reached majority or went away to college outside Palm Beach County. Thereupon the wife was to become responsible for all the costs of operating and maintaining the home so long as she continued to reside there. The husband was to pay the wife, for six years, rehabilitative alimony of $500 per week. Thereafter her permanent periodic alimony would be $200 per week. Child support was set at $100 per week for each child. The award, which appears in retrospect rather scanty on its face, was not appealed by the wife, who subsequently filed her petition for modification in 1982, alleging that her needs had risen substantially; and that her former husband’s ability to pay had also markedly increased. In his answer and affirmative defenses, the husband alleged that the wife’s expenses had been reduced by virtue of the majority of the elder child; and that he was offering the marital home for sale and the wife’s share of proceeds would provide the wife with adequate revenue for a comfortable existence. He counterpeti-tioned for a reduction in child support, elimination of the alimony award, and a setoff for alimony already paid, alleging the wife’s original financial affidavit was fraudulent.

The wife’s 1982 financial affidavit showed monthly living expenses for herself and the minor child, including mortgage and maintenance costs of the marital home were now $4,816. Her 1978 financial affidavit had shown monthly expenses of $4,275. Her actual 1979 expenses had been $3,500 per month, which discrepancy shall be discussed hereinafter. At the hearing on her petition for modification, she testified that since the dissolution she had borrowed more than $11,000 from parents and friends to meet expenses, the rise in which included an 80% increase in property taxes on the marital home. During withering cross-examination the wife admitted that the 1978 affidavit had been erroneous, but maintained she had obtained the figures from the former husband and had not learned they were inflated until she began paying such items as the mortgage payments herself. The husband’s counsel drew attention to the fact that the wife had not notified the court of the discrepancy for nearly three years.

Besides the approximately $2,000 per month alimony and the $400 per month child support for the remaining minor child, the wife’s only income was $155 per month from a second mortgage. She had obtained a real estate salesman’s license but has not been active in that field, and has otherwise been employed only one month, earning $800. Looking at the record evidence of the husband’s financial picture in a light most favorable to him, his income at the time of the modification proceeding had [311]*311risen to $160,000; and there had been material increase in his net worth.

Following an extensive hearing the trial court issued its final judgment, in which it stated the following findings of fact.

1. The Respondent/Former Husband’s income and assets have increased significantly since the final dissolution of marriage.
2. The Petitioner/Former Wife’s circumstances have changed since the final dissolution of marriage only to the extent of normal inflation and increased costs of living.
3. During the previous dissolution of marriage proceeding the Petitioner/Former Wife filed a false affidavit with the Trial Court which was not brought to the attention of counsel or the Court until approximately three years after her knowledge of the false affidavit. The Court finds that there was no intentional fraud committed by the Petitioner/Former Wife but that the affidavit was, in fact, false.
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5. The Court finds that the Petitioner/Former Wife has made little or no effort to rehabilitate herself as was anticipated by the previous Order of this Court dated July 5, 1979, and in fact, still is not gainfully employed despite the fact that more than three years have elapsed out of the six years of rehabilitative alimony previously granted by this Court.
6. Whatever increase in alimony the Petitioner/Former Wife might be entitled to accepting her new affidavit at face value, would be offset by approximately the same amount that her previous false affidavit exaggerated her expenses. While this Court has no way of knowing what the previous Court relied upon it can only be presumed that both counsel for the Former Husband and the Court relied upon the previous affidavit filed by the Wife in the dissolution of marriage proceeding in determining the Former Wife’s needs.
7. The Court finds that it would be inequitable to force the Petitioner/Former Wife to repay the alleged “overages” that may have been paid by the Former Husband since the date of the previous Order as she is presently without means to do so.
8. Based upon the previous Order of this Court the Wife is free to vacate the marital homeplace at any time and reside at any place of her own choosing, thereby substantially reducing her monthly expenses as alleged.
9. The Court finds that the Respondent/Former Husband has made voluntary payments for the mortgage payments during the pendency of this modification, however it would be inequitable to force the Petitioner/Former Wife to repay those amounts at this time or to reduce the alimony amount during the remaining portion of her rehabilitative alimony.
10. The Court finds there was no evidence presented by the Petitioner/Former Wife as to any change of circumstances as to the parties’ remaining minor child.
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12. The Court finds that to award attorney’s fees to the Petitioner/Former Wife would only encourage this type of frivolous litigation and would be inequitable under the circumstances.

The trial court denied both the former wife’s petition for modification and the former husband’s counterpetition, and ordered each party to bear its own costs and attorney’s fees. This appeal followed.

Pope v. Pope, 342 So.2d 1000 (Fla. 4th DCA 1977), and its progeny make clear that when a husband’s income has markedly improved while a wife’s circumstances have worsened because of the impact of inflation, it is error not to grant the wife a modification of alimony. Yet the trial court found those changes in circumstances, and considered the petition frivolous. The evident bases for refusing the wife’s petition were (1) her false but not fraudulent financial affidavit to the court at the time of the final dissolution three years earlier, or her failure to notify the court [312]

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Bluebook (online)
447 So. 2d 309, 1984 Fla. App. LEXIS 11604, Counsel Stack Legal Research, https://law.counselstack.com/opinion/weinstein-v-weinstein-fladistctapp-1984.