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Modification Actions for an Increase in Periodic Alimony, Part I

Family Law

Jan and Joan have been close friends since high school. Each married a professional man and had one child before their marriages were dissolved approximately five years ago. These confidants live in the same lakefront neighborhood which has experienced substantial appreciation since the entry of the final judgment. Each drives a comparable Mercedes SL500, approximately three years old, and with relatively low mileage. Neither has a “significant other” nor has engaged in any living arrangement with a member of the opposite sex. Each is unemployed and in their mid-40’s. They have chosen to meet in an upscale restaurant in a quaint, quiet part of town to discuss the following:

Jean: My real estate taxes have gone up the last three years, Joan. The same for my flood and homeowners insurance.
Now that I am no longer receiving child support for Martha, I really don’t know whether I can retain the residence or even maintain it in the manner in which I would like to.
Also, what about these escalating gas prices? I can hardly afford to drive my automobile.
Considering that Ted and I were married for such a long time, and I was a full-time homemaker and mother, I am wondering whether at my age and station in life a search of the job market is actually worthwhile. What do you think?
One of my main worries is that it is actually not practical for me to return to work for $15-17 per hour. I have thought about going back to get my college degree that I did not pursue because of marrying at an early age, but I am wondering whether many of the college courses taken in the mid-1980s are now even transferable or will be credited!
Is your investment portfolio now performing as well as it did two or three years ago or are you having the same problem with an up and down market as I am experiencing? Do you know of a good financial counselor? Can you yourself recommend some investments which will produce a good yield since I need the additional income?
Frankly, Joan, I don’t know what to do. If only my attorney five years ago had included a cost of living increase in the marital settlement agreement, I may not feel the financial pinch that I am presently experiencing!
I know that Ted must be doing somewhat better since he has just bought a new condominium and has leased a Hummer automobile.
I am seriously toying with the idea of going back to court to increase alimony, but I am worried about the cost in terms of fees and expenses. Do you have any recommendations?
Joan: Yes, Jean, I recommend the lawyer who represented me in my dissolution action since he seems to be very knowledgeable and can probably advise you as to the chances of success in a modification action.
(Part II of this article will pertain to modification actions for a decrease in periodic alimony. This article does not concern itself with an award of rehabilitative alimony and a subsequent action to increase, extend, or convert it to permanent, periodic alimony.)

The Referral
It is against this background that Jean comes to see you. She has developed a perception of the relief that she will be seeking and asks you to advise her as to her chances for an increase in periodic alimony plus an award of attorneys’ fees and costs.

Before the first meeting with Jean, you have hopefully reviewed either the court file or already obtained the file of the client which contains all pleadings, agreements, stipulations, orders, and judgments as well as correspondence, transcripts, or depositions. Absent such a thorough inspection, the attorney will be clueless as to how and on what basis the parties arrived at the standard of living developed during the marriage and whether the alimony award represents a sum sufficient for Jean to enjoy a stable, financial living pattern reasonably comparable to that enjoyed during the marriage.

One of the most important areas to thoroughly explore is how Jean arrived at the fixed or estimated living expenses itemized on her initial financial affidavit. Further, it is important to note whether she had access to sufficient documentation to prepare such a list. Also, what was the process used by her to identify and classify marital and nonmarital assets and liabilities and then to value them. Did she understand during this process that a court would take into consideration evidence as to the approximate yield she would receive from a distribution of marital assets and liabilities as well as an imputation of her income for self-support purposes, and how these factors may have impacted the needs on her financial affidavit?1

An inquiry should then be made as to the client’s education, work experience, and whether these matters were considered by the parties or the court in setting the alimony.

The attorney should then make an objective and independent judgment as to whether, based upon the record being reviewed, the alimony award initially met reasonable economic expectations for the future when compared with the financial entitlements that she would receive from equitable distribution and given the client’s age, health, education, work experience, the duration of the marriage, contributions to the marriage by her, and any other equitable and just factor which could have or would have been argued at that time on her behalf.

Does the language of the final judgment or marital settlement agreement independently provide that the alimony award is a reflection of the standard of living and would permit the recipient at present and in the future to support a similar lifestyle? Absent such language, the attorney should then consider whether its omission is of substantial importance in trying a modification action for an increase in periodic alimony.

The client must be advised that before any decision can be made, the client must complete a new financial affidavit and then be able to explain how such increased expenses are factored into her overall showing of “need” outside of self-help through employment or a cutback in living expenses, or a redirection of investments.

The client should be reminded to provide specific figures as to how and why living expenses have increased since the entry of the final judgment or last order.

In this regard, the client must be reminded to supply financial affidavit expenses only from a documented spending pattern, and not to engage in speculation, guesswork, or a “wishlist.”2

An explanation should be made by counsel that an increase in assets or net worth on the part of the obligor does not necessarily add to or increase income for the purpose of paying increased alimony since these additions may be illiquid in form or be burdened by federal income tax consequences when being sold, traded, or transferred. Conversely, increased financial ability may also be offset by increased expenses relating to remarriage, debt, or the obligor’s practice or business ventures.

Now is the time for counsel and the client to be specific in outlining any important and unforeseen change in circumstances which may have arisen since the entry of the final judgment or last court order increasing alimony. Are there now healthcare expenses which were not contemplated at the time of the last alimony award as contrasted with only an increase in routine medical, dental, optical, psychological, or counseling costs?3

Has the client been required to encumber, sell, or transfer capital assets in order to maintain the standard of living? Most important of all, why were not alternate methods not used, such as, employment or borrowing money?4

Is it the client’s desire that he or she wishes to maintain the lifestyle that was enjoyed during the marriage or is it rather the desire of the client to do so, but with the claim that it cannot be afforded at the present time? If the latter is the case, what is its economic cause? Is it inflation, loss of business, or investment opportunities, or simply a desire not to cut back on living expenses or to become employed? These are extraordinarily important considerations for the attorney to understand in quantifying for the client the odds of success in court.

Has there been any dissipation in the awards of equitable distribution by the client which contributed to a post-judgment lowering of the standard of living?

While the attorney should carefully explain to Jean that she is not actually self-supporting without reliance upon alimony, the attorney must also point out to her in candor that her former husband will not necessarily be precluded from relying on her employability even though at the time of the last alimony award, it was contemplated that she would not work outside of the home, but would continue in her role as a full-time mother and homemaker. Under the applicable law, a de novodetermination as to employability may now be made by the trial court in a modification action.

The next area to be explored in detail is whether Jean has any personal knowledge or a reasonable expectation of initially proving that Ted has had a substantial increase in financial ability to pay enhanced alimony. What witnesses can she call and what documentary evidence can she cite to counsel as an aid in discovery and anticipated proof at trial?

Lastly, after concluding the initial interview appointments, and reviewing the record including the most recent financial affidavit, the attorney must now consider whether to proceed in light of applicable Florida law. In doing so, he remembers an article appearing in a recent Florida Bar Journal pertaining to this subject and seeks it out to refresh his memory.

The Legal Criteria
F.S. §61.14 provides the statutory authority for modifying alimony and empowering the court with subject matter jurisdiction to enter such orders as equity may require with due regard to a showing of a substantial change in circumstances by the moving party, or a showing by the moving party of increased financial ability on the part of the obligor. Proof of either one may be sufficient.5

Furthermore, F.S. §61.14 (7) provides that it makes no difference whether the initial order or judgment as to alimony was based on a voluntary agreement or court order since, regardless of these circumstances, neither party has the heavier burden of proof.

The law is well settled that an increase in alimony solely because of the increased financial ability of the obligor is sustainable only in the event that at the time of the entry of the final judgment, the obligor did not have the present financial ability to pay, and the obligee was, thus, required to accept a lower amount of alimony or a corresponding decrease in the marital standard of living.6

Absent the lack of present financial ability to pay at the time of the initial alimony award or agreement, an upward modification of alimony may be ordered based on the increased financial ability of the obligor only in “extraordinary cases” and under “compelling equitable considerations.”7

In summary, the financial ability of the paying spouse standing alone may justify, but does not require, an order of increased alimony.
In most cases, a showing of increased need on the part of the moving party is a sine qua non to a determination for increased alimony.8

The standard to measure increased need requires a court to consider the obligee’s pre-existing needs and necessities of life as they were established during the marriage,9 and not a showing of increased need based on the alleged necessities of life as claimed by the obligee thereafter or postdissolution. The obligee has no vested right to share in the future post-dissolution “good fortune” of the obligor or his “income.”10

Furthermore, a court may note a lack of motivation on the part of the obligee to seek employment as a factor. Hurtado v. Hurtado, 407 So. 2d 627 (Fla. 4th DCA 1981), although an initial dissolution action, found such an argument is highly influential in a modification proceeding.

A court is not precluded from now considering, in a postdissolution proceedings a “de novo” determination as to the employability status of the petitioner.11 The reasoning of the court is that although employability of the obligee was contemplated at the time of the entry of the final judgment, it may be re-examined on the same employability evidence that was presented in the initial action, together with a showing of changed circumstances, because employability now and then are two entirely different matters. Circumstances can change the status of employability by children attaining majority or the obligee merely being required to be at least partially responsible for his or her own financial future. To hold otherwise, said the court, would be an unjust result because a higher alimony award may be justified when the children are younger, but may be diminished when they attain majority and by an ever increasing job market and abundant educational opportunities for the former spouse. Ruhnau v. Ruhnau, 299 So. 2d 61 (Fla. 1st DCA 1974), and Hurtado voiced early on the view that “permanent periodic alimony” is not necessarily synonymous with the word “forever,” and that health and employment conditions could be a change of circumstances sufficient to relieve the obligee of being categorized as a “alimony drone” for the remainder of his or her unmarried life.

Where there has been an inadequate award of equitable distribution and a demonstration of increased need by the obligee to repair the home, fix the plumbing, purchase, lease, or substantially repair an automobile or major appliances, and even foregoing the use of air conditioning because it cannot be afforded, a modification of alimony is justified, especially where the obligor is a physician earning substantially increased income and has himself counter-petitioned to terminate such alimony.12

Note, however, that a showing of increased need is not met by citing the escalating costs of medical care, even though the obligor may now have an increase in income.13 The same may be said of other routine monthly expenses.14

In a modification action seeking an increase in alimony, need may be essential as to a court’s decision. Merely showing that the standard of living is now well below that enjoyed during the marriage is not enough to support an increase in alimony, especially where the obligee has not in any way attempted to correct the alleged deficits in the standard of living by seeking to supplement income sources.15

If the obligee’s needs have substantially increased despite the fact that he or she attempted to supplement income and the standard of living is now well below that enjoyed during the marriage and that only by the depletion of assets can needs be met, then a modification is warranted especially if the obligor enjoys an enhanced standard of living with a corresponding increased income.16

One who has dissipated an award of equitable distribution contributes to the voluntary lowering of the standard of living. Additionally, while an obligee’s use of alimony to maintain an extraordinary or unsavory lifestyle will not support a downward reduction or termination of alimony without more, neither will the obligee’s profligacy be used to subsidize it by an order increasing alimony.17

A modification action may not be based on circumstances that were anticipated at the time the last award was made by a court,18 but an unexpected deterioration in the obligee’s health increases need and, thus, may serve as a justification for an alimony modification.19

Another influential fact may be that once child support is terminated, increased living expenses continue for the obligee and may be a factor in showing increased need.20

While inflation is a factor to be taken into consideration, the loss in the dollar’s purchasing power cannot be used as a basis for modification of alimony without a showing by the movant that the national problem of inflation impacts specifically on him or her, or that inflation in and of itself has created the increased need and, thus, a substantial change in circumstances.21

The facts and circumstances supporting an earlier award of alimony may not be revisited by the court as a basis for modification. Only circumstances occurring since the previous award may be considered.22 The fact that the obligee fails to establish a substantial and unforeseen change in circumstances now, may not, however, preclude a future action for modification, if the facts warrant it.23

Where the obligee is required to take early retirement because of substantial health problems, a substantial change of circumstances has been made, and such voluntary retirement prior to age 65 does not preclude the obligee from receiving increased alimony.24

The Decision
No one likes to lose! Even partial success many times is equated with total failure. Defeat wears thin and affects not only the person but other family members, friends, neighbors, and fellow workers.

In making a decision to file an action for an increase of periodic alimony, be aware of subtle suggestions and intuitive feelings in the hope of a quick and relatively inexpensive settlement. The obligor may well take financial advantage when these emotions surface and before complete discovery has yet to be accomplished.

Things are not always as they appear. Many times the obligor is pressured by a new spouse, second family, or new in-laws. Furthermore there may be the complication of the obligor paying the cost of adult children attending college or adult children who claim to be or who are partially or totally dependent on him or her for support. These factors may justify the belief on the part of the obligor that a voluntary increase will later prove to be bad precedent or that your increased alimony is not at all a priority item.

In filing a modification action, the obligee must be mindful of long term consequences. Will the obligor retaliate by cutting support to adult children or not paying for their college education or even permitting health or life insurance for their benefit to lapse?

Make an objective decision as to a judicial resolution for an increase in alimony. Be open to suggestion or even criticism of your views. Knowing the situation, would it be better to have a four-way conference in the hope of arriving at an amicable compromise or a mediation prior to filing suit? File the action only if the facts and case law preponderate in your favor. Otherwise, forget it. It maybe too risky and costly!

Let prudence be your “guiding star.” Assess carefully the strength of your case and also discuss the expectancy of at least a 30-50 percent increase. Anything less may not be cost effective given your time, effort, and “hard-saved or invested” money. Of course, if your family, friends, or a newly found “heartthrob” is financing the litigation without regard to repayment, then your “risk” maybe more limited. Otherwise, do not gamble with secure and established finances. If you decide to go ahead, set a budget and adhere to it.

Put yourself in the position of the obligor. Attempt to understand the defenses to be used and arguments for a “status quo” in the alimony award. Consider what a judge not knowing either one of you will do in years after the initial award was made.

Last, be sensible, practical, pay attention to the facts, and most of all, listen to your lawyer!

1 Fla. Stat. §61.08(2); Greenberg v. Greenberg, 793 So. 2d 52, (Fla. 4th D.C.A. 2001); Hurtado v. Hurtado, 407 So. 2d 627 (Fla. 4th D.C.A. 1981); Brock v. Brock, 690 So. 2d 737 (Fla. 5th D.C.A. 1997); Shrove v. Shrove, 724 So. 2d 679 (Fla. 4th D.C.A. 1999); and Rosecan v. Springer, 845 So. 2d 927 (Fla. 4th D.C.A. 2003), and 898 So. 2d 1021 (Fla. 4th D.C.A. 2005).
2 Tarkow v. Tarkow, 805 So. 2d 854 (Fla. 2d D.C.A. 2001); Schwab v. Schwab, 864 So. 2d 82 (Fla. 1st D.C.A. 2003).
3 Shafer v. Shafer, 777 So. 2d 1090 (Fla. 2d D.C.A. 2001).
4 Kaufman v. Kaufman, 541 So. 2d 743 (Fla. 3d D.C.A. 1989).
5 Bedell v. Bedell, 583 So. 2d 1005, 1006-07 (Fla. 1991).
6 Schlesinger v. Emmons, 566 So. 2d 583 (Fla. 2d D.C.A. 1990); Bedell v. Bedell, 583 So. 2d at 1007 (Fla. 1991).
7 Bedell, 583 So. 2dat 1007; Shafer v. Shafer, 777 So. 2d 1090 (Fla. 2d D.C.A. 2001).
8 Irwin v. Irwin, 539 So. 2d 1177 (Fla. 5th D.C.A. 1989), approved by the Supreme Court in Bedell, but with the additional requirement that either an increased need as shown by a substantial change of circumstances or increased ability to pay are alone sufficient under Fla. Stat. §61.14 and reversing Irwin only on the point that the Fifth District had previously held that an alimony award could not be increased based upon the obligor’s increase in income or wealth without first the showing of an increased need on the part of the obligee.
9 Waldman v. Waldman, 520 So. 2d 87, 89-90 (Fla. 3d D.C.A. 1988), receded from on other grounds in Acker v. Acker, 821 So. 2d 1088 (Fla. 3d D.C.A. 2002).
10 Szuri v. Szuri, 759 So. 2d 709 (Fla. 3d D.C.A. 2000); Shafer v. Shafer, 777 So. 2d 1090 (Fla. 2d D.C.A. 2001).
11 Rosen v. Rosen, 696 So. 2d 697 (Fla. 1997).
12 Bedell v. Bedell, 583 So. 2d 1005 (Fla. 1991).
13 Shafer v. Shafer, 777 So. 2d 1090 (Fla. 2d D.C.A. 2001).
14 Andrews v. Andrews, 409 So. 2d 1135 (Fla. 2d D.C.A. 1982).
15 Id.
16 Zipperer v. Zipperer, 567 So. 2d 916, 917-918 (Fla. 1st D.C.A. 1990), receded from on other grounds in Zold v. Zold, 911 So. 2d 1222 (Fla. 2005).
17 Phillippi v. Phillippi, 148 Fla. 393, 4 So. 465 (1941); DePoorter v. DePoorter, 509 So. 2d 1141 (Fla. 1st D.C.A. 1987); and Horner v. Horner, 222 So. 2d 791 (Fla. 2d D.C.A. 1969).
18 Campbell v. Campbell, 655 So. 2d 1153 (Fla. 2d D.C.A. 1995); Knotts v. Knotts, 614 So. 2d 651 (Fla. 5th D.C.A. 1993); Damiano v. Damiano, 855 So. 2d 708 (Fla. 4th D.C.A. 2003); Jaffee v. Jaffee, 394 So. 2d 443 (Fla. 3d D.C.A. 1981); and Long v. Long, 622 So. 2d 622 (Fla. 2d D.C.A. 1993).
19 Mitchell v. Mitchell, 536 So. 2d 1107 (Fla. 4th D.C.A. 1989), and Plevy v. Plevy, 517 So. 2d 128 (Fla. 4th D.C.A. 1987).
20 Becker v. Becker, 720 So. 2d 1111 (Fla. 4th D.C.A. 1998), and Mitchell v. Mitchell, 536 So. 2d 1107 (Fla. 4th D.C.A. 1989).
21 Waldman v. Waldman, 520 So. 2d at 89 (Fla. 3d D.C.A. 1988); Greene v. Greene, 372 So. 2d 189, 189-190 (Fla. 3d D.C.A. 1979); Emmel v. Emmel, 671 So. 2d 282 (Fla. 5th D.C.A. 1996); and Becker v. Becker, 720 So. 2d 1111 (Fla. 4th D.C.A. 1998).
22 Johnson v. Johnson, 537 So. 2d 637 (Fla. 2d D.C.A. 1989); Zimerle v. Zimerle, 650 So. 2d 155 (Fla. 1st D.C.A. 1995).
23 Waldman v. Waldman, 520 So. 2d 87 (Fla. 3d D.C.A. 1988).
24 Cleary v. Cleary, 743 So. 2d 1163 (Fla. 5th D.C.A. 1999); Pimm v. Pimm, 601 So. 2d 534 (Fla. 1992).

Michael R. Walsh, Orlando, is board certified in marital and family law and a fellow of the American Academy of Matrimonial Lawyers as well as a fellow of the Royal Academy of Matrimonial Lawyers, London. He received his J.D in 1963 from Duke University.

This column is submitted on behalf of the Family Law Section, Thomas J. Sasser, chair, and Susan W. Savard, editor.

Family Law