In Palmer v Palmer 38 Fla. L. Weekly D384, the former husband appeals an order enforcing a
supplemental final judgment by requiring him to pay the former wife a stipulated sum of money for his
failure to obtain refinancing on the marital home within the time agreed to by the parties. The former
husband contends the provision of the marital settlement agreement requiring him to compensate the
former wife for delays and refinancing amounts to a penalty and that cannot be enforced.
A contract provision setting damages for delay in performance is not void as a matter of law.
The court stated that it need not decide whether the provision at issue is a valid liquidated damages
clause or whether it is invalid as a penalty, because an agreement that is merely voidable is not subject
to collateral challenge once it has been incorporated into the final judgment. The court found no errror
in the judgment as to any other issues that the former husband raised on appeal.
In Ozuna v Shead 38 Fla. L. Weekly D657, the District Court of Appeal found that venue was proper
for mothers petition for modification of child support and to establish a parenting plan in Miami-Dade
County Florida, where she initially obtained a final administrative support order. The trial court abused
its discretion in transferring venue to Broward County where the parents presently resided.
The mother filed her verified petition for an upward modification of child support. The father moved
to transfer the case to Broward County pursuant to the venue statute. The court in its order did not
set forth any reasons or grounds upon which it relied to transfer the case for improper venue. Section
61.14(a), specifically permits a child support modification action to be filed in the county within which
the court entered a child support order. If a petition for modification is filed in an appropriate venue, it
is improper to transfer to another venue solely because venue is appropriate there as well.
Modification for Child Support Continued
1. Trial Court’s Required Finding of Fact- In the case of Wabeke v. Wabeke , the former wife wanted an extension of alimony and an increase in alimony. The court entered a “Supplemental Final Judgment to Modify and Increase Alimony.” The trial court did not find specific facts that would grant the wife an increase or an extension of alimony, and the case went to appellate review. In Walsh v. Walsh, although the former husband increased his income after the final review, no specific facts were found that could justify an increase in alimony.
2. Temporary Modification- Alimony that is awarded in a final decree is effective until modified by the court after specifics substantial facts have been brought to the court through petitions and trials. The court does not have the ability to award temporary alimony in a modification proceeding in any post-dissolution hearing, prior to a final hearing on the issue of modification. Because the initial award of alimony is the law for the case, the court is unable to enter a temporary modification of alimony pending the outcome of a supplemental petition for alimony.
3.Needs Exceeding Ability to Pay- If the financial needs of the party receiving alimony increase, it is often appropriate for a modification of alimony if the party providing the alimony has had an increase in income.
4. Financial Status of Payor’s Current Spouse- The financial status of a successor spouse is usually not an issue or a concern for the court. However, if the party owing alimony begins to live of the successor’s income for the purpose of getting a reduction in alimony, that is an issue. This issue came about in the case of Hayden v. Hayden.
5. Modification of Permanent Alimony- Unless it was specifically waived by the parties in a previous agreement, permanent periodic alimony is always subject to modification. Modification of permanent alimony depends on a specific substantial change in circumstances. The change in circumstances can be from the payor or the party accepting the alimony. It is usually not permissible for the court to make a permanent change to alimony based on what will happen in the future for a party; however it has been done in special cases. If a marital settlement did not specify what would happen with the alimony once the receiver gained employment, then that could be a reason for modification. Once there was a woman who was to receive her mother’s money once she passed, because it was an unexpected circumstance that changed the woman’s financial standing, it caused for a termination of alimony. Generally it is seen as an error to provide for an automatic change in alimony. However, if it is very clear that a former spouse’s financial position will change the court may find it appropriate in ordering an automatic future reduction in alimony. It is not automatically implied that just because a minor reaches maturity it does not guarantee an increase or a decrease in alimony. A decrease in the health of the recipient of alimony may be a cause for an increase in the alimony awarded to the former spouse, because there is a clear unexpected change which may increase the need of support.
6. Modifiability of Lump Sum Alimony- Lump-sum alimony awarded is usually not modifiable, unless the parties agree before hand that there can be changes made. The manner of the payment of the lump-sum alimony can be modified however, even if there was not a previous agreement made by the former married couple.
7. Modifiability of Rehabilitative Alimony- Rehabilitative alimony is subject to termination or modification. The termination of rehabilitative alimony is proper if there is material change since the time of the original decree. The material change may be a result if the payor being unable to continue alimony payments or if the recipient of the alimony no longer needs the assistance. Under certain circumstances the rehabilitative alimony may be converted to permanent alimony. The party receiving the rehabilitative alimony is not required to show the effort he or she is making to rehabilitate, however it might be requested that he or she show that he or she has not been rehabilitated. If the oblige of a modification of rehabilitative alimony is requesting an extension or conversion of the alimony, he or she may be requested to explain in court and in documents why the rehabilitative plan did not work and must express the need. The court should look at the spouse’s skills, education, health, and progress in achieving financial independence when determining what to do with the case of modification.
8. Modifiability of Rehabilitative Alimony- In the case of Rickenbock v. Kosinski, the former wife requested that her rehabilitative alimony conform to permanent alimony because he former husband was interfering with her efforts to complete the previous rehabilitative alimony plan. A trial court can proceed with altering a rehabilitative alimony to a permanent alimony, even if the initial trial court denied that request originally. The entitlement to the conservation or altering of the alimony is based on what occurred after the court’s initial decision, and that is why the alimony award can change if the court finds that action appropriate. Self support in the rehabilitative alimony context refers to more than just earning an income and getting a job. A divorced person who was married is entitled to living in the manner that was previously established during the course of the long-term marriage. The court would probably ask for a detailed rehabilitative plan that could bring the spouse a manner of living as the one she had in the marriage.
9. Modifiability of Rehabilitative Alimony- The court must take into consideration the recipient’s ability to achieve the marital standard of living and the goal of rehabilitation. Rehabilitative alimony cannot be converted to permanent alimony just because the trial judge believes that permanent alimony would have been a more appropriate alimony in the first place. The court would have to apply proper modification principles in order for the alimony to take on a different form. If a court is considering changing rehabilitative alimony to permanent alimony, the court should also consider the original purpose of the award, whether it has been achieved, and if not, the likelihood of the person becoming self sufficient. It is not proper or correct for a court to grant a conversion of rehabilitative alimony to permanent alimony while the party is still in the process of rehabilitation. The court and the parties involved need to wait until the party going through rehabilitation has either preformed in creating financial stability or was unable to complete the plan.
10. Modifiability of Rehabilitative Alimony- A party seeking a change from rehabilitative alimony to permanent alimony who had a mental disorder known at the time of the initial agreement cannot use the mental disorder as a way of getting around the rehabilitation plan because it was known beforehand. If a mental disorder develops after the original final judgment, then that is an important substantial change that could modify rehabilitative alimony to permanent alimony. It is very important for the court to create a time frame, time limit, and set of goals, for the rehabilitation alimony plan at the original judgment and if it is modified, then at the time of modification.
11. Modifiability of Nominal Alimony- Nominal alimony can be awarded if the court believes that the payee needs the alimony and the payor is unable to pay it at the time of the final judgment. In the case of Stock v. Stock, the former husband was unable to pay alimony and child support at the same time. He paid the child support until the minors reached majority, and then the husband began to pay alimony.
12. Modifiability of Bridge-The- Gap Alimony- Bridge-The-Gap Alimony is alimony made to give a former spouse an easier transition into financial life after marriage. It is normally made in lump-sum installments. This alimony normally occurs after a short-term marriage where the standard of living was much higher with a spouse than in a single life. Bridge- the-gap alimony is also a non-modifiable alimony, not extinguished when the payor passes away.
13. Standards of Proof to Modify Alimony Set by Agreement- Prior to the year 1993, it was more difficult to modify alimony that was created in a settlement agreement than a court ordered alimony award. Now the burden of proof is the same for both a settlement agreement and a court ordered alimony award. In cases where the payments are not termed “alimony,” the court will probably look at other factors in determining if the payments are ones of support or property settlement. Generally, pure property settlement agreements are non-modifiable unless there is consent from the parties. If an agreement refers to a monetary award such as alimony it can be modified, and it is not a pure property settlement agreement. In agreements where the payments are not termed “alimony,” the court will look at other factors in determining if the payment is one of support of property settlement.
14. Waiver of Rights to Modification- The right to alimony and the right to modification can be waived in an agreement of the parties. If the parties sign a irrevocable waiver to modification, no matter how devastating or unanticipated a circumstance, the court will be unable to modify alimony or support. In Benitez v. Benitez, both parties waived the right to seek modification, later the husband wanted to reduce his alimony payments because his former wife was receiving additional financial resources. A waiver to the right to modify is not modifiable, and he could not modify his support. A "General Release" from a contract, does not bar modification of alimony, because the right to modification is determined by future acts, unimaginable or unforeseen in the time of the original judgment. In the case of Brito v. Brito, the former husband and wife made an agreement where the former wife could not ask for a modification of support unless the former husband was in a valid and enforceable default.
15. Agreement/ Suspension of Alimony Obligation- If unemployment is involuntary and temporary in nature, the situation is not permanent in nature so modification is not the correct approach. In cases where the payor is temporarily unemployed and seeking employment, the court does not have to modify payments, but should temporarily suspend payments. If the payor is unable to pay alimony for reasons other than a refusal to work or a willfully created inability, the court should suspend payments until ability is restored. Temporary relief may be granted upon a showing of a provisional change in circumstances; it would be an error to permanently reduce alimony as a result of a temporary change.
16. Reduction in Payor Spouse’s Income- A reduction in the payor spouse’s ability to pay does not automatically translate into a reduction in support. Alimony payments rest on the ability of the payor to pay as a whole. If the trial court is using an averaging method to calculate a reduction in alimony payments, the court must also have substantial evidence to justify the reduction in alimony payments.
17. Increase in Payor Spouses Income- An increase in the payor spouse’s income may justify, but does not guarantee an increase in the alimony payments. If the court found that the payee was in need of an increase in support, then the court would probably seek to modify support and increase the payments. The need for additional alimony must be determined based on the prior standard of living that was established during the previous marriage, regardless of the post-dissolution increase of income by the payor.
18. All Aspects of Payor’s Spouses Income Considered in Modification Action- In determining whether or not a change in circumstances will alter the alimony payments, income is not the only financial element reviewed. The court has the ability to review all aspects of one’s financial life, in determining reductions and increases in alimony. In the case of Brewer v. Brewer, the former husband lost his job and was unable to find employment that compared to his former income; he received reduced alimony because his case was unexpected and permanent.
19. Ability to Pay Arrearages Must be Considered- In the case of Radziwon v. Radziwon, the court had to reverse its former decision when the former husband was unable to support himself because he had to pay arrearage payments, even though the was able to reduce his payments.
20. Imputation of Income- In the case of Ensley v. Ensley, the former husband quit his good paying job before the dissolution of marriage so that he did not have to pay as much alimony; he then tried to find a high paying job after the dissolution. He was not able to find as high a paying job as he had before and the court had a very difficult time calculating the income of the payor because his actual ability to earn was higher than what he was earning at the time of the dissolution and what he was earning at his new job. The court cannot impute income unless they find that the payor is earning less than he or she possibly could with the education, skills, and experience they have.
21. Retirement- The Supreme Court of Florida has noted the affects of retirement on support in the case, Pimm v. Pimm. The court decided that even though speaking about retirement and its affects on support would be good practice. Although silence in that regard should not bar consideration of reasonable retirement as part of the total circumstances in order to determine if there can be a modification of alimony from specific circumstances. In determining if retirement is reasonable, the court will look at the payor’s age, health, type of employment, motivation for retirement, and the general age of retirement for his or her field. There is a wide spread acceptance of the age of 65 or later for retirement, but if retirement will cause the former spouse to be on the verge of poverty the court will probably have to review it. The court needs to consider the needs of the spouse receiving support and if the retirement will completely alter the life of that person.
22. Voluntary Retirement- If a person takes an early retirement do to mental or physical health issues, he or she will probably be granted a reduce in alimony. His or her circumstances were unexpected and permanent, which normally leads to a modification in alimony. In the case of Moniz v. Moniz, the former husband was a police officer who endured two heart procedures, a shattered knee, and an ankle injury. He took an early voluntary retirement at 61, and he was granted reduced payments.
23. Supportive Relationships- In 2005, the Florida statutory law changed to address supportive relationships and their affects on alimony. The statute explains and describes factors for the court to consider. The court has the ability to reduce or terminate alimony if the payor can produce evidence that a supportive relationship exists. The nature and the extent of the relationship can be questioned by the court, so that the court can determine what to do with the alimony. The extent to which the obligee and the person in the relationship are engaging in acts as a married couple such as using the same last name, a common mailing address, and referring to each other as husband and wife will be taken into account by the court. The amount of time that the couple has resided together, the extent to which the couple has pooled their assets or exhibited financial interdependence, whether or not they have purchased property together, and whether they have joined in support of children.
24. Supportive Relationships- The court also believes that a supportive relationship is not seen as a marriage by the state without a marriage license, but the state recognizes that some relationships provide the economic support of a marriage. Alimony does not continue with a remarriage, and if a relationship will have the same economic support as a marriage, alimony should either be reduced or terminated. In Pill v. Pill, a boyfriend of the former wife preformed yard work and house work that equaled around $600.00 per month. The former husband received a reduction in alimony of only $1.00 per year as long as the former wife’s needs were met. Even if alimony is not completely terminated or reduced, a nominal award could be introduced that could allow other modification in the future. The court must also take into consideration the former spouse’s "needs" even if she is in a supportive relationship. The issue regarding supportive relationship is a difficult one for courts to address at times, because it is a mixed question of law and fact.
25. Retroactive Modification- A modification should be retroactive to the date of filing the petition seeking the modification if there is evidence that the payee had need and the payor had the ability to pay at the date of filing. A termination of alimony needs to be effective on the date of filing, when the basis is in existence because of the filing. If a foreign order for alimony is established in Florida and someone wishes to modify it, the modification can be retroactive to the date of filing because foreign judgments must be treated the same as domestic judgments. If a petition for final modification is pending, then the court does not automatically have the ability to award a temporary alimony pending the final judgment to the action.
26. Modification of Alimony Arrearages- Support obligations that come from a court order dealing with a domestic violence case are vested rights granted to the payee from the payor. Past-due installments from the payor to the payee become the payee’s property rights and the payments cannot be retroactively modified.
27. Jurisdiction to Modify a Foreign Alimony Award- A Florida court can enforce a spousal support order issued by a foreign court, but cannot modify it. The foreign court has continued exclusive jurisdiction over that order under the laws of that state.
Free consultation with a Florida lawyer
For a free domestic violence consultation by telephone, call Miami attorney Theodore Enfield at 305-933-9592 or 1-800-733-5299 or fill out the contact form on this Web site.