Talbert John Wood v. Margaret Blunck , 152 So. 3d 693 ( 2014 )

IN THE DISTRICT COURT OF APPEAL
FIRST DISTRICT, STATE OF FLORIDA
TALBERT JOHN WOOD, NOT FINAL UNTIL TIME EXPIRES TO
FILE MOTION FOR REHEARING AND
Appellant, DISPOSITION THEREOF IF FILED
v. CASE NO. 1D14-51
MARGARET BLUNCK,
Appellee.
_____________________________/
Opinion filed November 24, 2014.
An appeal from the Circuit Court for Clay County.
Daniel F. Wilensky, Judge.
Brian P. North of Kenny Leigh & Associates, Mary Esther, and Stefani K. Nolan,
and Shachar D. Spiegel of Kenny Leigh & Associates, Jacksonville, for Appellant.
Clyde M. Taylor III of Taylor, & Taylor, P.A., St. Augustine, and L. J. Arnold IV of
Arnold Law, Green Cove Springs, for Appellee.
RAY, J.
Talbert John Wood, the former husband, appeals an order denying his
petition to modify an alimony award in favor of Margaret Blunck, the former wife.
The former husband argues that the denial is an abuse of discretion because the
evidence showed that the former wife no longer needs alimony in the amount
previously awarded. He also argues that the order was entered in violation of
Perlow v. Berg-Perlow, 875 So. 2d 383 (Fla. 2004). Although some aspects of the
order and the proceedings below raise the specter of a Perlow error, we need not
decide this issue, because the order must be reversed on the other ground: the
court’s findings do not indicate a proper exercise of discretion under the principles
governing requests to modify alimony.
The original alimony award was $1,700 per month. In the order ruling on the
petition for modification, the trial court found that the former wife’s gross monthly
income had increased by approximately $1,060, or sixty-three percent, since the
final judgment, after several incremental increases. Still, the former wife’s current
expenses exceed her pre-alimony income by $644.81 per month. Consequently, the
court found that the former wife continues “to have the need for spousal support in
at least” that amount. The court continued the original award of $1,700 per month,
explaining that the former wife’s current living expenses are “extremely modest”
and “well below the standard of living established by the parties during the
marriage, which the Court has previously found to be reasonable.”
To justify a modification of alimony, the party seeking modification must
establish (1) a substantial change of circumstances; (2) that the change was not
contemplated at the time of the final judgment of dissolution; and (3) that the
change is sufficient, material, permanent, and involuntary. Pimm v. Pimm, 601 So.
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2d 534, 536 (Fla. 1992). The substantial change of circumstances necessary to
modify an alimony award must bear on either the payee spouse’s need for alimony
or the payor spouse’s ability to pay it. See Galligher v. Galligher, 527 So. 2d 858,
860 (Fla. 1988); § 61.14(1), Fla. Stat. (2009). For example, when the payee
spouse’s need decreases significantly, alimony should ordinarily be modified
downward even if the payor spouse has ample ability to pay the original amount.
See Antepenko v. Antepenko, 824 So. 2d 214, 215 (Fla. 2d DCA 2002). However,
“[t]he fact that the income of the spouse receiving alimony has increased will not
necessarily justify modification of the award.” Galligher, 527 So. 2d at 860. A
variety of factors must be considered. See id. The court’s ultimate decision is
reviewed under the abuse of discretion standard. Leonard v. Leonard, 971 So. 2d
263, 266 (Fla. 1st DCA 2008).
Although courts have discretion in determining the amount of alimony to
award, the comparison of a party’s expenses and income with the amount of
alimony is an important consideration. See Rosecan v. Springer, 845 So. 2d 927,
929 (Fla. 4th DCA 2003) (reversing an award of alimony where “the numbers and
findings [did] not add up to” the amount the court awarded in permanent periodic
alimony). Here, the improvement in the former wife’s financial position appears to
be a substantial change of circumstances. See Antepenko, 824 So. 2d at 215(holding that even a thirty-eight percent decrease in need is a substantial change in
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circumstances warranting modification). The former wife’s pre-alimony income
has increased by sixty-three percent. The record does not indicate what her
expenses were at the time of the final judgment. It does, however, indicate that the
$1,700 award exceeds the former wife’s current pre-alimony deficit by over
$1,000. Although the court explained that the amount of the former wife’s current
spending reflects a lifestyle below the standard established during the marriage, the
court did not make findings to indicate what amount of spending would be
commensurate with that lifestyle or what factors, if any, offset the substantial
increase in the former wife’s earnings.
While the former wife’s financial situation has improved, the same has not
been said for the former husband. Indeed, he attempted (unsuccessfully) to prove
that it had permanently worsened. Assuming the former husband’s ability to pay
remains the same and considering the figures in the final judgment, we conclude
that the finding of no substantial change of circumstances is inconsistent with the
findings concerning the former wife’s income and expenses.∗ Cf. Rosecan, 845 So.
∗
Although evidence concerning repairs needed to the former wife’s home and debt
she owes her family might be weighed to support a finding that the former wife’s
circumstances have not substantially changed, we cannot affirm on this basis
because it is not clear that the trial court grounded its decision on that evidence.
Affirming on this basis would require us to weigh the evidence and usurp the role
of the fact finder. Cf. Featured Properties, LLC v. BLKY, LLC, 65 So. 3d 135, 137
(Fla. 1st DCA 2011) (“We ‘cannot employ the tipsy coachman rule where a lower
court has not made factual findings on an issue and it would be inappropriate for an
appellate court to do so.’” (quoting Bueno v. Workman, 20 So. 3d 993, 998 (Fla.
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2d at 929 (“Absent special circumstances . . ., an alimony award should not exceed
a spouse’s need.”).
In so ruling, we do not pass on whether modification is necessarily required
at this time. We simply conclude that the order is insufficient to support the result
reached without further explanation. Consequently, we reverse and remand for
reconsideration.
REVERSED and REMANDED.
ROBERTS and SWANSON, JJ., CONCUR.
4th DCA 2009))).
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