Third District Court of Appeal
State of Florida
Opinion filed August 24, 2022.
Not final until disposition of timely filed motion for rehearing.
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No. 3D21-740
Lower Tribunal No. 15-659-P
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Nicole Kraus,
Appellant,
vs.
Thomas Kraus,
Appellee.
An Appeal from the Circuit Court for Monroe County, Luis Garcia,
Judge.
Thomas-McDonald Law Firm, P.A., and Aislynn Thomas McDonald,
for appellant.
Twig, Trade, & Tribunal, PLLC, and Morgan L. Weinstein (Fort
Lauderdale), for appellee.
Before LOGUE, LOBREE, and BOKOR, JJ.
LOGUE, J.
We affirm both the trial court’s denial of Appellant’s, Nicole Kraus
(“former wife”), motion for judgment on the pleadings, and the trial court’s
order granting Appellee’s, Thomas Kraus (“former husband”), Third
Supplemental Petition for Modification of Alimony.
The trial court properly denied the former wife’s motion for judgment
on the pleadings. 1 “A motion for judgment on the pleadings must be decided
wholly on the pleadings and is granted only if the pleadings establish that the
movant is entitled to judgment as a matter of law.” Perez Escalona v. City of
Miami Beach,
227 So. 3d 722, 724 (Fla. 3d DCA 2017) (internal quotations
omitted).
Section 61.14, Florida Statutes (2022), “gives an ex-spouse the right
to file a petition for an increase in alimony where ‘the circumstances or the
financial ability of either party has changed.’” Bedell v. Bedell,
583 So. 2d
1005, 1007 (Fla. 1991) (quoting § 61.14, Fla. Stat.). The former husband’s
petition alleged that the former wife discharged the marital debt she assumed
pursuant to the marital settlement agreement. It further alleged that this
discharge both increased her ability to pay alimony by reducing her own debt,
and financially injured the former husband by leaving him open to
1
We review a trial court’s order denying a motion for judgment on the
pleadings de novo. Walker v. Figarola
59 So. 3d 188, 190 (Fla. 3d DCA
2011).
2
subsequent tax issues. Pursuant to Bedell, this alleged change in the former
wife’s ability to pay was sufficient to petition for a modification of alimony.
The trial court was permitted to consider evidence of financial hardship
due to the former husband’s medical condition and loss of income. The
former wife argues that these issues were not included in the pleadings and
therefore the trial court’s consideration of such evidence was a violation of
the former wife’s right to fair notice. “Under Florida law, a trial court is without
jurisdiction to hear and determine matters which are not the subject of
appropriate pleadings and notice.” Todaro v. Todaro,
704 So. 2d 138, 139
(Fla. 4th DCA 1997) (internal quotations omitted). However, “when an issue
is tried by implied consent, due process concerns are alleviated.” Nisr v.
Barakat,
88 So. 3d 212, 212 (Fla. 3d DCA 2011). “Implied consent arises
when arguments and evidence are presented on the issue without objection
by the opposing party.” C.J. v. Dep't of Children & Family Servs.,
9 So. 3d
750, 755 (Fla. 2d DCA 2009).
The former husband’s financial hardship due to his medical condition
and loss of income were tried by consent. The former wife not only failed to
object to the introduction of this testimony in the hearing, but specifically
engaged in questioning regarding the former husband’s heart condition and
3
his loss of income. Because these issues were tried by consent, it was not
error for the trial court to consider them in its order.
Finally, the trial court’s order modifying alimony was supported by
competent substantial evidence. 2 The former husband presented testimony
and evidence that the former wife relieved herself of her obligation to assume
the marital debt by filing for bankruptcy, and that her salary had considerably
increased, constituting a permanent and substantial change in her ability to
pay alimony.
Affirmed.
2
“A trial court's Order regarding modification of alimony may not be
disturbed on appeal in the absence of a showing of a clear abuse of
discretion.” Lopez v. Lopez,
920 So. 2d 1165, 1167 (Fla. 3d DCA 2006).
Generally, an appellate court will not disturb a trial court’s modification of
alimony that is supported by competent substantial evidence. See Driggers
v. Driggers,
127 So. 3d 762, 764 (Fla. 2d DCA 2013).
4
