Wolfe v. Wolfe

953 So. 2d 632, 2007 WL 911830
CourtDistrict Court of Appeal of Florida
DecidedMarch 28, 2007
Docket4D05-3527
StatusPublished
Cited by7 cases

This text of 953 So. 2d 632 (Wolfe v. Wolfe) 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
Wolfe v. Wolfe, 953 So. 2d 632, 2007 WL 911830 (Fla. Ct. App. 2007).

Opinion

953 So.2d 632 (2007)

Keith R. WOLFE, Appellant,
v.
Nancy B. WOLFE, Appellee.

No. 4D05-3527.

District Court of Appeal of Florida, Fourth District.

March 28, 2007.
Rehearing Denied May 8, 2007.

*633 Edna L. Caruso of Edna L. Caruso, P.A., and Jay R. Jacknin of Christiansen & Jacknin, Lawyers, West Palm Beach, for appellant.

Cynthia L. Greene of Law Offices of Greene Smith McMillan, P.A., Miami and Law Offices of Sara Blumberg, P.A., Boynton Beach, for appellee.

WARNER, J.

The former husband appeals the trial court's denial of his petition for modification of his alimony obligation to the former wife, where the former wife's expenses had decreased significantly because of the sale of the marital home. We conclude that the trial court erred in failing to reduce the alimony and reverse.

The parties were divorced in 2002 after twenty-four years of marriage. In the final judgment of dissolution, the court determined that the husband had a substantial monthly income of around $26,000 from his dental practice. Both parties agreed that the wife would need permanent alimony. However, because the parties were selling the marital home, the husband argued that the wife's expenses would be reduced once the sale was complete. He proposed some bridge-the-gap alimony until the house was sold. Nevertheless, the court declined to speculate on the wife's future expenses after the sale of the home. It did not want to place the wife in a position of having to seek modification should the projected decline of future expenses not come to fruition. The court then awarded the wife $13,000 per month in permanent alimony. That award was based upon the wife assuming all of the expenses of the marital home. The court also ordered the sale of the marital home. In all, each party received approximately $2,000,000 in marital assets. The husband appealed the final judgment, and we affirmed. See Wolfe v. Wolfe, 864 So.2d 1229 (Fla. 4th DCA 2004).

Within a year of this court's decision, the former husband filed a petition for modification of alimony. In his petition, the former husband claimed that subsequent to the entry of the final judgment, a substantial and permanent change of circumstances occurred in that his income was far less than his net monthly earnings contemplated in the final judgment. Additionally, since the entry of the parties' final judgment, the former wife sold the parties' former marital home, which was a significant basis in determining the amount of alimony to award to the former wife. She purchased a smaller residence, decreasing her needs.

When the parties sold the marital home, the former wife received $370,000. From her share of the sale proceeds, she put about $100,000 into the new home and put about $270,000 into a money market fund. Although the marital home carried a thirty-year mortgage with a balance at sale of *634 $220,000, the wife financed $320,000 of her new residence with a fifteen-year mortgage, making the mortgage payments approximately the same as the mortgage on the marital home. Had she kept the same size mortgage ($220,000) and amortization of thirty years, her payments would be $1,200 instead of $2,500 per month. Instead, she invested the remaining $270,000 from the sale of the home. In all, she had an investment account of approximately $1,000,000 and a retirement account of $650,000. Her investment return on the $1,000,000 was less than two-percent.

The former wife's financial affidavit, her expert's analysis of her needs, and the former husband's expert's analysis of her needs are all in conflict as to what the former wife's expenses are, both as to amount and category. However, her current expenses included categories of items not included in the calculation of alimony at trial. These include expenses for the parties' adult son, a substantial catchall of "spending money," a long-term care contract, and a prepaid funeral contract, both contracts purchased after the divorce.

The trial court denied the petition for modification. It concluded that the former husband had not proved that he had a significant and permanent reduction in income. As to the former wife's expenses, the court refused to consider the sale of the marital home as a reason for modification, because it was contemplated in the final judgment. It further found that the former husband's claim that the former wife's needs have decreased should fail because generally the purposes to which a spouse puts the alimony award do not support a modification of the award, citing Tinsley v. Tinsley, 502 So.2d 997 (Fla. 2d DCA 1987). It therefore denied the petition for modification. The former husband appeals.

A reduction in alimony can be based either on the decreased income of one party or the decreased needs of the other party. See § 61.14(1), Fla. Stat.; Antepenko v. Antepenko, 824 So.2d 214 (Fla. 2d DCA 2002). Here, the former husband tried to prove both. As to the former husband's claim of decreased income, even the former wife's expert's calculations show a modest decrease in the former husband's income. Nevertheless, having evaluated the testimony regarding the former husband's income loss, including the expert testimony and the trial court's credibility determinations, we cannot say that the trial court abused its discretion in concluding that the former husband has not suffered a significant, involuntary reduction in income.

The trial court did not consider the sale of the marital home in determining whether the former wife's expenses had decreased, because it viewed the sale as contemplated in the original final judgment, citing Ashburn v. Ashburn, 350 So.2d 1158 (Fla. 2d DCA 1977). The trial court was thus attempting to apply the general rule that in order to obtain a modification, a party seeking modification of an alimony award must show: (1) a substantial change in circumstances since the date of the final judgment; (2) that the change was not contemplated at the time of the final judgment; and (3) that the change is sufficient, material, involuntary, and permanent in nature. Pimm v. Pimm, 601 So.2d 534, 536 (Fla.1992). In interpreting this general rule, we recently said:

[M]odification may not be based upon factors affecting income known to the parties at the time a final judgment is entered. . . . "The reason for this doctrine is an obvious one: if the likelihood of a particular occurrence was one of the factors which the court or the parties considered in initially fixing the award *635 in question, it would be grossly unfair subsequently to change the result simply because the anticipated event has come to pass."

Mendes v. Mendes, 947 So.2d 450, 452 (Fla. 4th DCA 2006) (quoting Jaffee v. Jaffee, 394 So.2d 443, 445 (Fla. 3d DCA 1981)) (emphasis added).

In setting the award of alimony in the initial final judgment in this case, the trial court refused to consider the likely reduction of the wife's expenses once the marital home was sold. The court found that "speculation as to the wife's future expenses are inappropriate at this juncture." While the husband argued that the wife would only need "bridge-the-gap" alimony until the house was sold and then a lesser amount of permanent alimony, the court felt that following the husband's plan would shift the burden of proof to the wife in any modification proceeding if the anticipated future event, i.e., the sale of the home and purchase of another home, did not meet the future projections.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Grable v. Grable
District Court of Appeal of Florida, 2026
SUSAN LEE MALOWNEY v. JOHN RAPHAEL MALOWNEY
250 So. 3d 204 (District Court of Appeal of Florida, 2018)
Regan v. Regan
217 So. 3d 91 (District Court of Appeal of Florida, 2017)
Michael Dennis, Former Husband v. Holli Poe Dennis, Former Wife
184 So. 3d 656 (District Court of Appeal of Florida, 2016)
Aquilina v. Aquilina
141 So. 3d 597 (District Court of Appeal of Florida, 2014)
Schang v. Schang
53 So. 3d 1168 (District Court of Appeal of Florida, 2011)
Coniglio v. Coniglio
969 So. 2d 579 (District Court of Appeal of Florida, 2007)

Cite This Page — Counsel Stack

Bluebook (online)
953 So. 2d 632, 2007 WL 911830, Counsel Stack Legal Research, https://law.counselstack.com/opinion/wolfe-v-wolfe-fladistctapp-2007.