JACQUELINE GIRARD v. TIMOTHY GIRARD

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
JACQUELINE GIRARD,
Appellant,
v.
TIMOTHY GIRARD,
Appellee.
No. 4D21-2618
[November 30, 2022]
Appeal from the Circuit Court for the Nineteenth Judicial Circuit,
Indian River County; Cynthia L. Cox, Judge; L.T. Case No.
312012DR000772.
Kate E. Watson of The Watson Law Firm, P.A., Jupiter, for appellant.
A. Julia Graves of the Law Office of A. Julia Graves, P.A., Vero Beach,
for appellee.
LEVINE, J.
The wife appeals a final judgment reducing her permanent alimony
payments from $13,500 to $11,062 per month. Because there was no
substantial and permanent change in circumstances since entry of the
final judgment, we reverse and remand for reinstatement of the original
alimony award. We find the other issues raised by the wife without merit
and affirm those issues without further comment.
The parties were married for twenty years. In 2013, the trial court
entered a final judgment of dissolution of marriage, incorporating the
parties’ mediation agreement. Pursuant to the mediation agreement, the
husband agreed to pay the wife $13,500 per month in permanent periodic
alimony.
In 2020, the husband sought modification of alimony for several
reasons, including the wife’s alleged increased earning ability. Testimony
at the modification hearing showed that the wife worked as a travel agent
until the birth of her first child eighteen years ago. The wife then became
a stay-at-home mother. In 2018, the wife began taking interior design
classes at the community college and was halfway through completing her
design certificate in kitchen and bath. Around the time she started taking
classes, the wife began an internship with a home builder. In September
2020, after an employee left, the internship became a temporary part-time
position with the wife earning $19 per hour working only five to ten hours
a week. The wife’s temporary employment ended after approximately
seven months in April 2021—two weeks before the modification hearing—
when the company hired a full-time replacement. The husband’s
vocational consultant testified that the wife could work in a clerical job
earning $10 to $12 an hour.
The husband also sought modification based on the wife’s use of
alimony to support her mother. As part of the marital settlement
agreement, the wife received the marital home and a condominium.
During the marriage, the wife’s mother lived in the condominium, and the
wife paid the expenses associated with the condominium. After the
divorce, the wife’s mother continued to reside in the condominium, and
the wife continued to pay the same expenses that she paid during the
marriage. The husband’s forensic accountant testified that the wife was
underutilizing the condominium for income purposes. Per Zillow, an
online real estate company, he estimated the condominium could generate
$1,500 a month in gross rental income, with a net monthly income of
$950.
The forensic accountant also testified that the wife earned $837 a year
in investment income. However, the accountant’s forensic notebook
instead listed the wife’s investment income as $837 a month, while
another page in the notebook listed a total of $627.38 in investment
income over a nine-month period.
After the hearing, the trial court entered a final judgment reducing the
alimony payments from $13,500 to $11,062 a month. The trial court
found that “[t]he Former Husband provided evidence that the Former
Wife’s needs have decreased, that she is able to work, had employment
income until two weeks prior to trial and that she has been able to
accumulate savings and support her mother.” The trial court concluded
that the wife was voluntarily unemployed and imputed $1,083 in monthly
income to her, using a rate of $10 an hour at 25 hours a week. Next, the
trial court considered that the wife’s mother lived in the wife’s
condominium rent-free with the wife paying the expenses. The trial court
found that the condominium could produce $950 in net monthly rental
income. Finally, the trial court attributed to the wife “investment income
of $837 per month.” The trial court then concluded: “After deducting and
imputing gross employment income of $1,083 per month, net monthly
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rental income of $950 and investment income of $837 per month, the
Former Wife has a shortfall and resulting need of $11,062 per month.”
From this judgment, the wife appeals.
“Trial court orders modifying awards of alimony are reviewed for abuse
of discretion.” Simpson v. Simpson, 68 So. 3d 958, 961 (Fla. 4th DCA
2011).
However, “[t]o warrant a modification of alimony, the party seeking the
change must prove ‘1) a substantial change in circumstances; 2) that was
not contemplated at the time of final judgment of dissolution; and 3) is
sufficient, material, involuntary, and permanent in nature.’” Koski v.
Koski, 98 So. 3d 93, 95 (Fla. 4th DCA 2012) (quoting Damiano v. Damiano,
855 So. 2d 708, 710 (Fla. 4th DCA 2003)); see also § 61.08(8), Fla. Stat.
(2021) (stating that an award of permanent alimony “may be modified or
terminated based upon a substantial change in circumstances”); §
61.14(1)(a), Fla. Stat. (2021) (stating that a court may modify an award of
alimony “as equity requires” where “the circumstances or the financial
ability of either party changes”).
In the instant case, the trial court abused its discretion in imputing
$1,083 in monthly employment income to the wife in the absence of
evidence that there was a substantial and permanent change in
circumstances since the final judgment. The trial court cited Stewart v.
Rich, 664 So. 2d 1145 (Fla. 4th DCA 1995), and Valby v. Valby, 317 So.
3d 147 (Fla. 4th DCA 2021), for the proposition that “[a] spouse’s
obtainment of employment can serve as a downward modification where it
was not contemplated and considered at the time of the parties’
agreement.” However, the facts of this case are markedly different from
the cases cited by the trial court. In Stewart, we found that the wife
earning a law degree and becoming a member of the Florida Bar supported
modification of alimony, but only after providing the wife an opportunity
to search out available employment opportunities in the legal field. 664
So. 2d at 1146, 1149. In Valby, this court affirmed downward modification
of alimony where the wife, who had been unemployed at the time of the
final judgment, returned to full-time employment as a teacher. 317 So. 3d
at 152.
Unlike in Stewart and Valby, here the wife did not obtain a higher
education degree or full-time permanent employment. Rather, the wife
completed several classes at the community college, had not yet earned a
certificate or degree, and held only a temporary part-time position for a
limited time. Although the wife’s employment ended two weeks before the
hearing, the undisputed evidence was that this position was always
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temporary. The wife was filling in for an employee who had left, and the
wife’s position ended because the company hired a full-time replacement.
Instead, the instant case is more analogous to Regan v. Regan, 217 So.
3d 91, 93 (Fla. 4th DCA 2017), where we found the trial court, in
considering a petition for modification, did not abuse its discretion in
refusing to impute income to the wife where she had not been employed
outside the home for the entire marriage, and the marital settlement
agreement did not require the wife to work to support herself. Like in
Regan, here the wife had not been employed outside the home since the
birth of the parties’ first child eighteen years ago, and the marital
settlement agreement did not require the wife to work to support herself.
This case is also similar to DeFrancisco v. DeFrancisco, 273 So. 2d 780,
781 (Fla. 2d DCA 1973), which found no substantial change in
circumstances since entry of the final judgment where the wife’s income
had increased for only a few months before she terminated her
employment. Similar to DeFrancisco, here the wife worked for only several
months in a temporary position. Although the wife took classes and was
in the midst of obtaining her kitchen and bath design certificate, her
circumstances were still more like that in Regan and DeFrancisco than
those cases where a spouse had obtained the necessary qualifications for
her career.
The trial court also abused its discretion in imputing $950 in monthly
rental income to the wife for her condominium. The undisputed testimony
was that the wife’s mother lived in the condominium rent-free during the
marriage and at the time of the final judgment. Thus, the wife’s alleged
underutilizing of the condominium to generate rental income cannot be an
“substantial change in circumstances” “that was not contemplated at the
time of final judgment of dissolution.” Koski, 98 So. 3d at 95; see also
Regan, 217 So. 3d at 93 (affirming, on a petition for modification, the trial
court’s refusal to consider income the wife could generate from certain
funds where the marital settlement agreement never contemplated the use
of those funds for the wife’s support); Withers v. Withers, 390 So. 2d 453,
455-56 (Fla. 2d DCA 1980) (declining to modify alimony where the wife
allowed her adult children to live rent-free in another home owned by the
wife); cf. Chastain v. Chastain, 73 So. 2d 66, 68 (Fla. 1954) (finding that
modification could not be based on income from continued rental of home
where rental income was contemplated at the time of the final judgment).
Finally, the trial court abused its discretion in imputing $837 in
monthly investment income to the wife because there was no competent
substantial evidence to support this amount. See Niederman v.
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Niederman, 60 So. 3d 544, 550 (Fla. 4th DCA 2011) (“Any decision to
impute income must be supported by competent substantial evidence.”).
The husband’s forensic accountant testified that the wife earned $837 a
year in investment income. Additionally, the forensic notebook contained
conflicting information as to the amount of the investment income and did
not provide the source of the information. To the extent the record
supports a finding that the wife earned $837 a year in investment income,
that would not be a substantial change in circumstances.
In summary, the trial court abused its discretion in reducing the wife’s
alimony where there was not competent substantial evidence of a
substantial and permanent change in circumstances since the time of the
final judgment. As such, we reverse and remand for the trial court to
reinstate the original amount of alimony payments.
Affirmed in part, reversed in part, and remanded with instructions.
CIKLIN and KUNTZ, JJ., concur.
* * *
Not final until disposition of timely filed motion for rehearing.
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