Third District Court of Appeal
State of Florida
Opinion filed February 8, 2023.
Not final until disposition of timely filed motion for rehearing.
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No. 3D21-1404
Lower Tribunal No. 07-15687
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Marcia Stivelman,
Appellant,
vs.
Jacques Claudio Stivelman,
Appellee.
An Appeal from the Circuit Court for Miami-Dade County, Ivonne
Cuesta, Judge.
Lorenzen Law, and Dirk Lorenzen, for appellant.
Nancy A. Hass, P.A., and Nancy A. Hass (Fort Lauderdale), for
appellee.
Before EMAS, SCALES and LOBREE, JJ.
SCALES, J.
Marcia Stivelman (Former Wife) appeals both an order modifying the
alimony obligation of Jacques Claudio Stivelman (Former Husband) and a
related order retroactively awarding Former Husband reimbursement of his
alimony overpayment. Because the trial court did not articulate the required
statutory findings in its final orders, we reverse.
The parties’ 2007 Marital Settlement Agreement (MSA), entered into
by Former Husband when he was fifty-one years old, provided that Former
Husband’s $21,000 monthly alimony payments (subject to an annual
Consumer Price Index (CPI) adjustment) were non-modifiable until Former
Husband reached the age of sixty. The MSA provided for a window that
allowed Former Husband, when he was between the ages of sixty and sixty-
five, to petition for alimony modification by establishing that “changes in
financial circumstances were material, substantial, unanticipated and
permanent.” This quoted language refers to a change in financial
circumstance of either Former Husband or Former Wife.
In May 2018, at age sixty-two, after paying a total of almost three
million dollars in alimony over eleven years, Former Husband filed a petition
seeking to modify his alimony obligations. The trial court conducted a four-
day evidentiary hearing, during which the trial court heard, inter alia, expert
testimony from Former Husband’s forensic accountant.
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Based on this testimony, the trial court entered the challenged January
7, 2021 order reducing Former Husband’s monthly alimony obligation from
$24,699.84 (the CPI-adjusted alimony amount) to $10,586. Upon Former
Wife’s January 22, 2021 motion for rehearing, the trial court adjusted the
modified alimony to $11,500, based on a floor established in the MSA. On
January 28, 2021, Former Husband moved the trial court to enter an order
making the alimony adjustment retroactive to the date of his modification
petition. In a separate June 10, 2021 order, the trial court granted this motion
and awarded Former Husband $375,225.36, representing the alimony
overpayment, plus prejudgment interest, for a total of $410,756.56.
On appeal, Former Wife challenges the trial court’s orders on several
grounds: (i) the challenged orders fail to make the findings required by
section 61.08(1) of the Florida Statutes; (ii) there was not competent,
substantial evidence to support the trial court’s ruling that Former Wife’s
financial circumstances had changed or that the alleged changes were
material, substantial, unanticipated and permanent; (iii) the trial court
improperly imputed income to Former Wife; and (iv) a downward modification
of Former Wife’s alimony was inequitable. Because we reverse the
challenged orders on the first ground stated above, we do not – and indeed
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are unable to – reach the other grounds raised by Former Wife, and we
express no opinion on these other grounds.
Neither the trial court’s January 7, 2021 order nor its June 10, 2021
order recites the requisite statutory findings of section 61.08(2) of the Florida
Statutes. § 61.08(1), Fla. Stat. (2021) (“In all dissolution actions, the court
shall include findings of fact relative to the factors enumerated in subsection
(2) supporting an award or denial of alimony.”) (emphasis added); see Engle
v. Engle,
277 So. 3d 697, 698 (Fla. 2d DCA 2019) (“A trial court’s failure to
make the required findings is reversible error.”); see also Ortiz v. Ortiz,
306
So. 3d 1081, 1083 (Fla. 3d DCA 2020). 1 The requirement of making statutory
findings applies not only to a trial court’s initial alimony award but also to any
modification of an alimony award. Donoff v. Donoff,
940 So. 2d 1221, 1223
1
Former Husband argues that, because the relevant findings are discernible
in the record, we should affirm based on the authority of Broadfoot v.
Broadfoot,
791 So. 2d 584 (Fla. 3d DCA 2001). In Broadfoot, despite the
absence of statutory findings in the trial court’s order, this Court affirmed a
permanent alimony award because “the award [was] reasonably clear and
supported by the record.”
Id. at 585. We construe Broadfoot, though, as a
preservation of error case and do not read the Broadfoot holding as
authorizing an appellate court to waive section 61.08(2)’s mandatory
requisites. In Broadfoot, the trial court was not afforded the opportunity to
correct its error through a rehearing; here, however, Former Wife did file a
motion for rehearing that, in part, notified the trial court of its error in omitting
the required findings in the alimony award. Notwithstanding Former Wife’s
motion for rehearing directed toward this issue, the trial court expressly
declined to address it. See Engle, 277 So. 3d at 700-01.
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(Fla. 4th DCA 2006). While we recognize that in an alimony modification
case, the passage of time might render some of the statutory factors less
pertinent than others, our ability to review the appropriateness of an alimony
award is predicated on a full recitation of the section 61.08(2) findings. Rowe-
Lewis v. Lewis,
267 So. 3d 1039, 1042 (Fla. 4th DCA 2019).
Reversed and remanded for proceedings consistent with this opinion.
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