Anthony Q. Lizzmore, Husband v. Tonia E. Lizzmore, Wife , 263 So. 3d 268 ( 2019 )

FIRST DISTRICT COURT OF APPEAL
STATE OF FLORIDA
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No. 1D17-1734
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ANTHONY Q. LIZZMORE,
Husband,
Appellant,
v.
TONIA E. LIZZMORE, Wife,
Appellee.
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On appeal from the Circuit Court for Duval County.
W. Gregg McCaulie, Judge.
February 4, 2019
PER CURIAM.
Appellant challenges the lower court’s final judgment of
dissolution of marriage, arguing that the permanent periodic
alimony award exceeded Appellant’s ability to pay, and also
exceeded Appellee’s need and the amount requested by Appellee in
her petition for dissolution.
In June 2015, following the parties’ thirty-six year marriage,
Appellee filed an amended petition for dissolution of marriage,
requesting permanent periodic alimony of $1,000 per month, and
the parties filed financial affidavits. Appellee’s financial affidavit
listed unemployment income of $1,100 per month and $1,614.82 in
monthly expenses, resulting in a $514.82 deficit. Appellant’s
financial affidavit listed a net monthly income of $2,999.58 and
monthly expenses of $5,937.36, which included $3,622.36 in
household expenses, $792 in expenses for maintaining three
automobiles, $202 for insurance, and $377 in miscellaneous
expenses.
At the final hearing, Appellant testified that he was currently
working forty hours per week and earning $13 per hour as a valet,
and was also working part time and earning approximately $260
per month. He also received social security benefits of $1,501 per
month, with his health insurance of $275 taken out of those
benefits, and he maintained a 401(k) account. He testified that he
was not paying the mortgage and property taxes listed as expenses
on his financial affidavit due to the home’s foreclosure.
Evidence was also presented that Appellee had been living
with friends and family, but had just begun work after being
unemployed for several years and was earning $1,900 per month,
whereas in 2015 she had been receiving unemployment income of
$1,100 per month. Appellee testified that her expenses had also
increased in the two years since filing her financial affidavit.
The trial court found that Appellant earned $2,999.58 in net
monthly income and that he had access to a 401(k) account and
other assets. The court excluded $1,553 from Appellant’s listed
household expenses, as those amounts were in foreclosure and
were not being paid. The court found that Appellee earned $1,764
per month but had monthly expenses of $1,694, including $729 in
rent, $290 for a car payment, $200 in insurance, and a medical bill
of $837. The court also noted that Appellee “appears to be in poor
physical condition.” The court concluded that Appellee had a need
and Appellant had an ability to pay, and ordered Appellant to pay
permanent periodic alimony in the amount of $1,250 per month.
Analysis
Appellant argues that the trial court abused its discretion, as
the alimony award exceeded both Appellant’s ability to pay and
Appellee’s need. We note that this was a marriage of thirty-
six years, that Appellee was in poor physical condition and had
minimal assets compared to Appellant, and that Appellant was
earning more income per month. We therefore find that the trial
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court did not abuse its discretion in finding that Appellee had a
need and Appellant had an ability to pay. See Gray v. Gray, 103
So. 3d 962, 966 (Fla. 1st DCA 2012); Askegard v. Askegard, 584
So. 2d 47, 50 (Fla. 1st DCA 1991); see also Herzog v. Herzog, 346
So. 2d 56, 57 (Fla. 1977) (declaring that in divorce cases, it is not
the function of the appellate court to re-evaluate the testimony and
evidence).
Appellant also argues that the trial court erred in increasing
Appellee’s award to more than what was requested in her petition.
We agree and modify the alimony award from $1,250 per month to
$1,000 per month.
In Ward v. Ward, 364 So. 2d 815, 817 (Fla. 3d DCA 1978), the
husband did not attend the hearing, and the trial court awarded
the wife $125 per week in permanent periodic alimony, despite the
wife only requesting $100 per week in her pleading. On appeal,
the Third District modified the award to $100 per week “because
the husband had a right to rely on the claim in the pleading . . .
and there was no testimony before the chancellor requesting an
amendment to the pleadings nor evidence which sought an amount
in excess of that sought by the pleadings.” Id. The Third District
held:
This opinion is not to be construed as preventing a
chancellor (when a party fails to show up for a duly
noticed final hearing) from entering an award which may
be greater than that sought in the pleadings, but under
the circumstances of the instant case (where there was
nothing in the evidence to justify the increase in the
periodic alimony from that sought in the pleadings) we
think the husband had a right to rely on the pleadings
and it was error for the chancellor to increase this
amount.
Id.; cf. Viscito v. Viscito, 214 So. 3d 736, 739 (Fla. 3d DCA 2017)
(holding that the husband was “confined by his pleadings to a
claim for permanent periodic alimony” and could not demand
another form not prayed for in the pleadings).
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Here, in her amended petition for dissolution, Appellee
requested $1,000 in permanent periodic alimony, yet the Final
Judgment awarded her an amount in excess of the requested
amount. Although Appellant, unlike the husband in Ward,
attended the final hearing and presented evidence on his behalf,
Appellee never asked to amend her petition to seek a higher
amount. She described having higher expenses, but she did not
ask the court to award her anything greater than what she sought
in her pleading, and she never suggested that $1,000 per month
would not suffice. See Ward, 364 So. 2d at 817.
Moreover, the evidence presented at the final hearing did not
justify an award greater than that sought in the pleadings.
Although Appellee began incurring higher expenses in the
two years since she filed her financial affidavit, the trial court
found that her monthly need at the time of dissolution was $1,694,
an amount only $79.18 greater than the expenses she declared in
2015; however, her monthly net income had increased $664 since
2015. Appellee’s changed circumstances therefore resulted in a net
increase of $584.82 per month since the filing of the petition and
financial affidavit. We hold that the trial court erred in awarding
alimony in excess of what Appellee requested in her petition, as
Appellee was in a better position than at the time she filed her
pleadings.
Accordingly, we affirm the final judgment, but remand for the
trial court to reduce the periodic alimony award provided in the
final order from $1,250 per month to $1,000 per month.
AFFIRMED but REMANDED for modification.
B.L. THOMAS, C.J., and KELSEY and WINOKUR, JJ., concur.
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Not final until disposition of any timely and
authorized motion under Fla. R. App. P. 9.330 or
9.331.
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David P. Grigaltchik and Boris Galustov of Grigaltchik &
Galustov, P.A., Jacksonville, for Appellant.
Tonia Lizzmore, pro se, Appellee.
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