Ispass v. Ispass

IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FIFTH DISTRICT
NOT FINAL UNTIL TIME EXPIRES TO
FILE MOTION FOR REHEARING AND
DISPOSITION THEREOF IF FILED
ADELE ISPASS,
Appellant,
v. Case No. 5D17-425
ALAN B. ISPASS,
Appellee.
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Opinion filed February 2, 2018
Appeal from the Circuit Court
for Seminole County,
Michael J. Rudisill, Judge.
Clifton H. Gorenflo, of Gray, Gorenflo &
Partlow, P.A., Sanford, for Appellant.
Kristin J. Coffey, of Green Family Law, P.A.,
Orlando, for Appellee.
EDWARDS, J.
Adele Ispass (“Former Wife”) appeals the trial court’s order dismissing her
supplemental petition to modify the amount and duration of alimony to be paid by Alan
Ispass (“Former Husband”). The trial court based the dismissal with prejudice on its
determination that it lacked jurisdiction to modify the duration of alimony. We agree with
Former Wife that the trial court had jurisdiction; thus, we remand for further proceedings.
The parties married in 1975, had two children together, and divorced in 2000. They
entered into a Marital Settlement Agreement (“MSA”) in 2000 that was incorporated into
the final judgment dissolving their marriage. The MSA provided that Former Husband
would pay Former Wife $2250 per month in alimony unless he became permanently
disabled or retired after age sixty-two, in which case she would receive her share of
Former Husband’s pension. The MSA stated that Former Husband would cease alimony
payments immediately upon Former Wife’s death, remarriage, or cohabitation.
In 2003, Former Wife filed a petition to increase child support. In response, Former
Husband counter-petitioned to cease alimony payments based on Former Wife’s
cohabitation. The parties entered into a Mediation Agreement (“MA”) that provided for
child support and modified the alimony payments. Under the MA, Former Husband would
continue paying $2250 per month in alimony until July 2006 when the monthly payments
would be reduced to $1800, and then the payments would stop completely when Former
Wife reached the age of sixty-two. As part of the MA, Former Husband agreed to waive
his right to reduce or terminate alimony based on Former Wife’s cohabitation. The MA
incorporated the MSA except as to provisions amended by the MA. The trial court
incorporated the MA into a final judgment of modification.
Two months before her sixty-second birthday, Former Wife filed a supplemental
petition to modify alimony, seeking to increase the monthly amount above $1800 and
extend the duration beyond her birthday. She based her request for modification on
changed circumstances as a result of a cancer diagnosis that required her to stop
2
working, as well as the death of her paramour.1 She requested the trial court to
recalculate the monthly payments based on the parties’ current financial needs and
abilities. She filed an amended petition several months after her sixty-second birthday.
The amended petition contained the same requests but added a demand for attorney’s
fees. Former Husband responded with a motion to dismiss, asserting that the trial court
lacked jurisdiction to extend the duration of payments because the previously agreed
upon time period for alimony payments had expired.
The trial court determined that it lacked subject matter jurisdiction, reasoning that
section 61.14, Florida Statutes (2003), allows the court to confirm or change the amount
of support but does not empower the court to change the duration. As an additional
reason for dismissing her petition with prejudice, the trial court ruled that Former Wife
waived any right to extend alimony payments beyond her sixty-second birthday by
entering into the MA.
Whether a court has jurisdiction over a case is a question of law reviewed de novo.
Sanchez v. Fernandez, 915 So. 2d 192, 192 (Fla. 4th DCA 2005). “A court has subject
matter jurisdiction when it has the authority to hear and decide the case.” In re Adoption
of D.P.P, 158 So. 3d 633, 636 (Fla. 5th DCA 2014) (citing The Fla. Star v. B.J.F., 530 So.
2d 286, 288 (Fla. 1988)). Section 61.14(1)(a) specifically grants circuit courts the
authority to hear modification of alimony cases in the circuit in which the agreement was
executed. § 61.14(1)(a), Fla. Stat. (2003).
1 Former Husband asserted that he was also diagnosed with cancer and retired
early as a result.
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Subject Matter Jurisdiction
Here, the Final Judgment Dissolving Marriage and the Final Judgment of
Modification were both executed in the Eighteenth Judicial Circuit Court, and Former Wife
filed her supplemental petition with the same court. Although the trial court stated in its
order granting the motion to dismiss that “there is no specific reservation of Subject Matter
Jurisdiction to modify alimony,” such reservation is not required. See Walker v. Walker,
80 So. 3d 1128, 1129 (Fla. 4th DCA 2012). Because the statute grants the court the
power to hear the case and because Former Wife filed the supplemental petition in the
same court where the final judgments were executed, the trial court did have subject
matter jurisdiction and erred in dismissing the petition based on a lack of subject matter
jurisdiction.
Expiration of Agreed Upon Alimony Period
The trial court also found that it lacked jurisdiction to entertain Former Wife’s
petition for modification because the agreed-upon time period for alimony had expired by
the time of its ruling. However, after awarding alimony, “the court retains jurisdiction to
enforce the award and to consider modification at any time during the period provided for
support.” Kelsey v. Kelsey, 636 So. 2d 77, 78 (Fla. 4th DCA 1994). Although Former
Wife waited until two months before her sixty-second birthday, her petition was filed
during the alimony payment period, making it timely. See § 61.14(1)(a), Fla. Stat. (2003);
Paulk v. Paulk, 504 So. 2d 790, 790 (Fla. 1st DCA 1987). Although the payment period
expired before the court ruled, we reverse and remand for further proceedings because
the trial court had jurisdiction to entertain and rule on the petition.
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Authority to Extend Duration of Alimony
The trial court ruled that section 61.14, Florida Statutes (2003), allows for a party
to petition the court only for an increase or decrease in the amount of alimony upon a
showing of changed circumstances or financial ability. The court stated that it did not
have jurisdiction to modify “the duration of the alimony, simply the amount.” Although
section 61.14 does not explicitly provide for an extension in the duration of an alimony
award, courts have nevertheless done so. When alimony is set by an agreement between
parties, courts can, upon a showing of changed circumstances, modify the duration of
agreed-upon alimony payments. See, e.g., Powell v. Powell, 527 So. 2d 260, 261 (Fla.
3d DCA 1988); Brooks v. Brooks, 423 So. 2d 995, 996 (Fla. 3d DCA 1982).2 The trial
court pointed out that, until July 1, 2010, there was no statutory provision for durational
alimony, which is essentially the form of support that these parties had agreed upon.
However, now that durational alimony is statutorily recognized, section 61.08(7), Florida
Statutes (2011), allows for an extension on the length of an award upon a showing of
exceptional circumstances as long as the award does not exceed the length of the
marriage. § 61.08(7), Fla. Stat. (2011). Thus, courts can extend alimony payments
depending on the type of alimony and a proper showing of changed circumstances.
2Although these are older cases, the relevant statutory language of section 61.14
remains the same. See Muss v. Muss, 390 So. 2d 415, 416 (Fla. 3d DCA 1980) (“‘[T]he
court has jurisdiction to make orders as equity requires, with due regard to the changed
circumstances or the financial ability of the parties . . . , decreasing, increasing, or
confirming the amount of separate support, maintenance, or alimony provided for in the
agreement . . . .’” (quoting § 61.14(1), Fla. Stat. (1979)).
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Waiver of the Right to Petition for Modification
Former Wife argues that the court erred in finding that she waived the right to
modify alimony when she agreed that the alimony payments would cease on her sixty-
second birthday. “In Florida, the statutory right to modification, unless specifically waived,
is incorporated as a matter of law in any agreement or judgment providing for alimony.”
Harmon v. Harmon, 629 So. 2d 1011, 1012 (Fla. 4th DCA 1993). “The right to modify
awarded alimony may be waived by either party, and this waiver may be implied; however,
an implied waiver must be clear and unambiguous.” Rosenthal v. Rosenthal, 199 So. 3d
541, 542 (Fla. 1st DCA 2016). Here, the MA specifically states that the parties retained
the right to modify the agreement according to Florida law. Thus, it was error to dismiss
Former Wife’s petition for modification with prejudice at that stage of the proceedings.
Because we are remanding the case, the trial court may consider the waiver issue if the
parties properly present it.
REVERSED AND REMANDED.
SAWAYA and BERGER, JJ., concur.
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