Jarrard v. Jarrard , 2015 Fla. App. LEXIS 107 ( 2015 )

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING
MOTION AND, IF FILED, DETERMINED
IN THE DISTRICT COURT OF APPEAL
OF FLORIDA
SECOND DISTRICT
JAMES M. JARRARD, )
)
Appellant, )
)
v. ) Case No. 2D13-5091
)
JACQUELINE T. JARRARD, )
)
Appellee. )
)
Opinion filed January 7, 2015.
Appeal from the Circuit Court for
Hillsborough County; Nick Nazaretian,
Judge.
Kristal L. Knox of Ayo & Iken PLC, Tampa,
for Appellant.
Jeffrey S. Sirmons and Eileen H. Griffin of
Griffin & Associates, P.A., Brandon, for
Appellee.
ALTENBERND, Judge.
James M. Jarrard appeals a postdissolution order in which the trial court
denied his petition for a modification of alimony and established an arrearage of
$72,110.27 owed to Mr. Jarrard's former wife, Jacqueline T. Jarrard. The order is based
on the trial court's finding that Mr. Jarrard failed to meet his burden of proof that there
was a substantial change of circumstances that was permanent in nature. We reverse
the order because Mr. Jarrard met his burden to establish a sufficient, material,
permanent, and involuntary substantial change of circumstances that was not
contemplated at the time of the final judgment of dissolution of marriage. Accordingly,
he is entitled to receive a decision from the trial court as to the nature and extent of the
appropriate modification. We remand for the trial court to make that decision. In this
opinion we discuss the standard of review applicable to this particular ruling by the trial
court.
I. THE FACTS
The Jarrards married in 1970. In 2004, when they were both in their mid-
fifties and after their children were adults, they divorced. It was not a seriously
contested divorce; a stipulated final judgment based on a marital settlement agreement
was entered in August 2004. In that judgment, Mr. Jarrard agreed to transfer his
interest in the marital home to Ms. Jarrard, pay permanent alimony in the amount of
$4200 per month, provide life insurance on his life for the benefit of Ms. Jarrard at a cost
to him of $100 per month, and pay her attorney's fees. Equitable distribution was not a
complex issue; at all relevant times this couples' net assets, both marital and
nonmarital, were modest.
At the time of this divorce, Mr. Jarrard had a good job in Louisiana, making
about $150,000 per year. Thus, the payments for alimony and life insurance were
roughly 35 percent of this gross income. Mr. Jarrard was already retired from the
military at that time. As a result, each party received 50 percent of that retirement
benefit, which provided and still provides about $2000 per month for each of them. At
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the time of the divorce, Ms. Jarrard was earning about $10,000 per year working part
time.
Although Mr. Jarrard changed jobs after 2004 and his income decreased,
he apparently made his monthly alimony payments until mid-2011. At that time, when
he was over sixty years of age, he became unemployed. He looked for a job without
success until January 2012. In that month he accepted a job in Naples, Florida, the
compensation for which is entirely commission based. Due to the commission
structure, his monthly income between January 2012 and July 2013 varied widely
between $0 and $15,466. Over the eighteen-month period for the months of February
2012 through July 2013, he earned $90,730, which is $5041 per month. Over the first
seven months of 2013, he earned $39,083, which is $5583 per month. Thus, his
average monthly income in 2013 was substantially less than $6000, while his average
monthly income in 2004 had been about $12,500. This is a reduction in monthly income
of more than 50 percent of that earned by Mr. Jarrard at the time of the final judgment of
dissolution. At the time of the hearing in this case, the payments for alimony and life
insurance had exceeded 70 percent of Mr. Jarrard's average monthly income for two
years.1
Mr. Jarrard filed his first petition to modify alimony in March 2010, but he
voluntarily dismissed it in June 2010. He filed a second petition in September 2011,
when he had just become unemployed. The matter was actually tried on his second
1
We realize that these numbers would be even more favorable for Mr.
Jarrard if we included the five-month period that he was unemployed. If the military
retirement were factored into all calculations, the calculations would be a little less
favorable for Mr. Jarrard.
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amended supplemental petition for modification or termination of alimony, which he filed
in August 2012.2
At the hearing on this matter in July 2013 only Mr. Jarrard testified. He
introduced various financial documents. By then the parties were in their mid-sixties.
Ms. Jarrard was receiving a military pension, social security, and a small additional
income for a total of $37,500 per year. There had been no substantial change in her
circumstances and her need for support was still evident. The trial court certainly did
not err in denying the request to terminate her alimony.
As demonstrated above, however, the evidence did show that Mr. Jarrard
had sustained a major, unexpected loss of income. Although the evidence suggested
that Mr. Jarrard's income might improve over time, when accepted in the light most
favorable to the trial court's ruling, the evidence still would not support a finding that Mr.
Jarrard's income would ever return to levels close to what he earned in 2004.
In the order denying Mr. Jarrard's second amended supplemental petition,
the court determined that Mr. Jarrard "has failed to meet his burden of proof that there
was a substantial change of circumstances that was permanent in nature." As a result,
it denied modification and ordered Mr. Jarrard to continue to pay the $4200 per month in
alimony plus an accrued arrearage of $72,110.27. It ordered the entry of an income
withholding order for 65 percent of each paycheck and a similar amount of his "military
retired pay" until the satisfaction of the arrearage.
2
Mr. Jarrard's alimony has never been modified in this case. Thus, this
case does not involve a situation in which the change of circumstances should be
determined from the time of a prior modification order, such as Johnson v. Johnson, 537
So. 2d 637 (Fla. 2d DCA 1989).
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II. THE STANDARD OF REVIEW FOR A TRIAL COURT'S DECISION
CONCLUDING THAT A PARTY HAS NOT ESTABLISHED
GROUNDS TO MODIFY ALIMONY
The standard of review in this case warrants some discussion. It is often
stated that the standard for an appellate court's review of a trial court's decision to
modify alimony is abuse of discretion. See, e.g., Driggers v. Driggers, 127 So. 3d 762(Fla. 2d DCA 2013); Leonard v. Leonard, 971 So. 2d 263 (Fla. 1st DCA 2008). Once a
trial court has determined that the party with the burden of proof has established an
entitlement to a decision to modify alimony, the actual decision to modify is a
discretionary one. The extent of any modification of alimony, based on the evidence of
record, is unquestionably an issue over which the trial court exercises sound discretion.
Hence, that specific decision is reviewed for an abuse of discretion.
But the issues arising during the adjudicatory process necessary to reach
the point where the trial court makes a discretionary decision to modify alimony often
involve standards of review other than abuse of discretion.3 During that adjudicatory
process, the party seeking a modification must file a pleading that adequately alleges a
claim for modification. Such a claim essentially requires the party to allege and the trial
court to decide that (1) there has been a substantial change in circumstances, (2) the
change was not contemplated at the time of the final judgment of dissolution, and (3)
3
As Judge Padovano explains, the correct standard of review is typically
determined by the "nature of the adjudication" or the function that the trial court is
performing at the time of the alleged error. It is rarely determined by the topic or area of
law in which the decision making occurs. Philip J. Padovano, Florida Appellate Practice
§ 19.3, at 358-59 (2013 ed.).
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the change is sufficient, material, permanent, and involuntary.4 See Eisemann v.
Eisemann, 5 So. 3d 760, 762 (Fla. 2d DCA 2009); see also Pimm v. Pimm, 601 So. 2d
534, 536 (Fla. 1992). Whether the pleading is legally sufficient in its allegations of this
claim, as with all pleadings, is a legal issue reviewed de novo. See Murphy v. Bay
Colony Prop. Owners Ass'n, 12 So. 3d 924, 926 (Fla. 2d DCA 2009).
The party seeking a modification must then present evidence necessary
for the trial court to make factual findings or determinations that are essential for relief.
Those essential findings of fact, both express and implied, are reviewed to assure that
they are supported by competent, substantial evidence. For example, the trial court in a
modification proceeding needs to make factual determinations about the nature and
extent of any change in factual circumstances. If disputed, it may need to make a
factual decision about whether the change was anticipated at the time of the final
judgment.
Finally, the trial court needs to decide whether the proven change is
substantial and whether the change was sufficient, material, permanent, and
involuntary. These are legal conclusions, not factual determinations, and they are
reviewed by the appellate court under a type of de novo review that is actually the
normal second step in a "mixed" review.
4
We note that this court recently observed "that involuntariness of income
loss may no longer be a bright-line requirement for alimony modification" and that some
decisions that result in a spouse's income loss may be evaluated to determine if the
decision was reasonable. Wilson v. Wilson, 37 So. 3d 877, 881-82 (Fla. 2d DCA 2010).
Unlike in Wilson, here there was evidence that Mr. Jarrard's loss of income was
involuntary.
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A "mixed" standard of review is not an invitation for lawyers and judges to
engage in mixed-up logic. It is usually employed when the function the trial court is
performing requires that court to apply a rule of law to a set of facts that are not
undisputed.5 The trial court's decision occurs essentially at the logical intersection
between a finding of the facts and a decision as to the legal outcome of the issue that is
dependent upon those facts.
In cases concerning modification or termination of alimony, this "mixed"
standard has best been developed in cases involving modifications of alimony based on
the existence of a supportive relationship. See Buxton v. Buxton, 963 So. 2d 950 (Fla.
2d DCA 2007) (applying a mixed standard of review on the mixed questions of law and
fact concerning the trial court's denial of the former husband's motion to reduce or
terminate alimony, which was based upon the trial court's conclusion that the former
wife was not engaged in a "supportive relationship" under section 61.14(1)(b), Florida
Statutes (2005)); see also King v. King, 82 So. 3d 1124 (Fla. 2d DCA 2012) (applying
the standards of review espoused in Buxton). We conclude that the mixed standard
applied by this court in Buxton applies to a broader range of cases in which parties,
such as Mr. Jarrard in this case, seek modification of alimony under section 61.14,
Florida Statutes (2012).
A mixed standard of review is actually performed by an appellate court as
a sequence of two or more distinct reviews. Most commonly, the appellate court
5
If the facts are undisputed, as with an order granting summary judgment,
the decision is reviewed de novo. See Hornfischer v. Manatee Cnty. Sheriff's Office,
136 So. 3d 703, 706 (Fla. 2d DCA 2014).
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reviews the findings of fact to assure they are supported by competent, substantial
evidence. Occasionally, the appellate court is called upon to review de novo the trial
court's decision as to applicable law. In so doing, the appellate court provides only a
modest presumption of correctness to the trial court because the issue is almost always
one that is exclusively a pure issue of law upon which the trial court has no greater
insight than the appellate court. Finally, the appellate court reviews the trial court's legal
conclusion, which was reached by the application of the law to the facts. As stated
earlier, the review of this legal conclusion is a form of de novo review.6 However, unlike
a review of the trial court's decision as to the correct law to apply, the legal conclusion is
reviewed with a recognition that the factual component was determined by the trial
judge and that all factual determinations may not have been expressly stated in the
order. The interrelationships between the findings of fact and the conclusions of law is
what makes the standard of review "mixed."
Especially in the context of a dissolution of marriage or modification
proceeding,7 the trial court's legal conclusion is made under circumstances in which that
6
One of the most common "mixed" reviews involves suppression orders in
criminal cases. "We apply a mixed standard of review concerning the ruling on [a]
suppression motion. We review the findings of fact for support by competent,
substantial evidence in the record. See State v. Clark, 986 So. 2d 625, 628 (Fla. 2d
DCA 2008). As to the trial court's conclusions on mixed questions of law and fact and
on pure questions of law, we conduct a de novo review." State v. Townsend, 40 So. 3d
103, 105 (Fla. 2d DCA 2010). Even though a criminal suppression issue is very
different from a decision on modification of alimony, because the trial court's decision-
making process in these two contexts is quite similar, our standards of review in these
two contexts are quite similar.
7
The fact that dissolution has its origins in chancery and not law also
argues for greater deference in the process of appellate review. See § 61.011, Fla.
Stat. (2012).
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court may have a better vantage point from which to make a decision.8 The appellate
court's deference is also heightened by the risk that it will actually reevaluate the
evidence in the guise of making a de novo legal review. See Shaw v. Shaw, 334 So. 2d
13 (Fla. 1976). Thus, the trial court's legal conclusion is undoubtedly reviewed with a
greater deference to the presumption that the trial court has made a correct ruling on
the legal issue. This deference does not transform the review into a species of "abuse
of discretion," but it does alter the character of the de novo review from that performed
on a pure issue of law.
In a case like this one, in which a trial court decides that a party has not
met its burden of proof and persuasion as to one or more of the grounds that would
allow for a modification, our review of this essentially negative decision is arguably
somewhat different from the review we would give to a judgment granting affirmative
relief following a nonjury trial. We first review the evidence to determine whether there
is competent, substantial evidence in the record that would support the movant's claim.
See In re Estate of Sterile, 902 So. 2d 915 (Fla. 2d DCA 2005). If the evidence would
not require the trial court, for example, to find a "change" as a factual matter or would
not require a factual finding that the change was unexpected, we could affirm the trial
court without even reaching any issue addressing the legal conclusion that the change
was substantial.
However, when there is competent, substantial evidence that would
support a factual determination allowing the trial court to decide to grant relief, the
review must take a second step. The existence of that quantity of proof does not
8
Philip J. Padovano, Florida Appellate Practice §§ 19.2, 19.4 (2013 ed.).
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automatically empower this court on a de novo review of the legal conclusion to compel
the trial court to proceed to the stage of making a discretionary decision on the issue of
modification. Instead, we must defer to the trial court on all matters of credibility and
accept all disputed evidence and reasonable inferences therefrom in the light most
favorable to sustaining the trial court's ruling. Cf. Van v. Schmidt, 122 So. 3d 243 (Fla.
2013) (discussing the deference to trial court findings of fact when reviewing de novo a
decision to grant a new trial based on manifest weight).
After this court has evaluated the evidence in this deferential light, the
legal issues to be decided de novo are whether the trial court, in light of the evidence,
was required to reach the legal conclusion that the change was substantial and was
sufficient, material, permanent, and involuntary. In other words, was the trial court
required to conclude that the movant had established his burden on these legal issues?
III. APPLYING THE STANDARD OF REVIEW IN THIS CASE
The record in this case contains competent, substantial evidence that
would support Mr. Jarrard's claim of a substantial change in circumstances. The
evidence as to the amount of his income and its fluctuations is virtually undisputed. His
employment income had been reduced by more than 50 percent, and his support
obligation had jumped to 70 percent of that income. This is not a situation in which the
initial income was extremely high or where other assets existed to protect this couple
from the loss of income. In Dippold v. Dippold, 712 So. 2d 1205 (Fla. 5th DCA 1998), a
change similar to the change here not only was found to be substantial, but it also
required the trial court to reduce the support by more than 20 percent. Ms. Jarrard has
cited no case in which a trial court or an appellate court reached a legal conclusion that
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a change of this magnitude was not substantial. On de novo review, considering the
evidence most deferentially to the trial court, we conclude that the trial court was
required to reach the legal conclusion that the change here was substantial.
The record in this case also contains competent, substantial evidence that
would support Mr. Jarrard's claim that the change in circumstances was sufficient,
material, permanent, and involuntary. The actual legal dispute in this case focuses on
whether the change was permanent. As to that issue, it was undisputed that Mr. Jarrard
had been earning the substantially reduced income for about two years at the time of
the hearing. The wide fluctuations in his income make predicting the future a difficult
task. No statistical analysis of Mr. Jarrard's income would support a factual conclusion
that his income was on a rapid rise that would return it to its earlier levels. Mr. Jarrard
did not testify that other more experienced employees in his new position were making
incomes substantially higher than his own. The fact that he is approaching retirement
age, at a minimum, gives him less time to achieve a greater income.
There may be no period of time that is conclusively "permanent" for this
purpose, but the Fourth District has held that a severe reduction in income for "nearly a
year, with no end in sight," established permanency in Perez v. Perez, 973 So. 2d 1227,
1232 (Fla. 4th DCA 2008). The trial court in this case seemed to believe that Mr.
Jarrard was required to prove what his income would be over the upcoming years
before this two-year decline could be treated as a permanent event. In light of the
inherent uncertainty in predicting future economic developments and given the
remaining undisputed facts in this case, that was an improper burden to place upon Mr.
Jarrard. Cf. Freeman v. Freeman, 615 So. 2d 225 (Fla. 5th DCA 1993) (for modification
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of child support, requiring a showing that a change in circumstances is "forever" would
impose an impossible burden). We conclude that on this record the trial court was
required to reach the legal conclusion that the change in circumstances was permanent.
We reverse and remand for the trial court to exercise its discretion. Our
mandate does not prevent the trial court from updating the evidence on remand. We
observe that the calculation of arrearage was based on a continuation of alimony at the
$4200 per month level. If the trial court decides to modify alimony, section 61.14(1)(a)
authorizes a modification retroactive to the date of the filing of the action. See also
Thyrre v. Thyrre, 963 So. 2d 859, 861-62 (Fla. 2d DCA 2007). In this case, section
61.14(1)(a) would appear to give the trial court discretion to adjust alimony to the date of
the filing of the second amended supplemental petition.
Affirmed in part, reversed in part, and remanded.
MORRIS and BLACK, JJ., Concur.
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