IN THE CIRCUIT COURT OF THE TWENTIETH JUDICIAL CIRCUIT IN AND FOR
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LEE COUNTY, FLORIDA
CIVIL ACTION
B C,
Former husband,
vs.
Case No. YY DR XXXX N
M C,
Former wife,
FINAL JUDGMENT DENYING SUPPLEMENTAL PETITIONS
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This matter having come before the court on (Date omitted), 2013 for trial on the parties’
supplemental petitions, it is ordered:
1. Former wife’s supplemental counter petition is dismissed and denied
The former wife filed a “Counter Claim” on 5/17/2012, which is a supplemental counter
petition to modify the 2009 Amended Final Judgment in this case.
At trial, the former husband moved to dismiss the former wife’s supplemental counter
petition under Rule 1.140(h)(1) for failure to state a cause of action.
At trial the court granted this motion and dismissed the former wife’s supplemental
petition. The former husband also objected to the former wife introducing any evidence of facts
amounting to a substantial change since the 2009 Amended Final Judgment that would justify
increasing the alimony from $1,100 to $1,500 a month, as the former wife requested in her
supplemental counter petition. The court sustained this objection at trial.
The former wife’s supplemental counter petition asks to modify the 2009 Amended Final
Judgment to increase the alimony from $1,100 to $1,500 a month and also for insurance to
“secure” the alimony, but this petition does not state a cause of action because it does not allege
any ultimate facts of a substantial change in circumstances since the Amended Final Judgment was
entered. “It is fundamental that a trial court is without jurisdiction to hear and determine matters
that are not the subject of appropriate pleadings and notice.” Lamelas v. Granados, 730 So.2d 387,
388 (Fla. 2d DCA 1999), citations omitted.
In paragraph 10 of her counter petition the former wife asks to “increase her permanent
alimony” to $1,500 a month and in paragraph 12 she asks to “secure” the payment of alimony with
life insurance, but there are no ultimate facts of any substantial change in circumstances alleged
anywhere in the document that would justify such claims for relief, as required by Rule 1.110(b):
“A pleading which sets for a claim for relief, ..., must state a cause of action and shall contain ...
(2) a short and plain statement of the ultimate facts showing that the pleader is entitled to relief.” It
is not enough in a petition to ask for specific relief, like an increase in the alimony or insurance to
secure alimony. In order to state a cause of action for modification of an alimony judgment, the
supplemental petition must also allege ultimate facts showing a substantial change in
circumstances since the final judgment was entered.
See, e.g., Shawfrank v. Shawfrank, 97 So.2d 934, 935 (Fla. 1st DCA 2012): “... the former
husband filed a second supplemental petition for modification of alimony, citing a reduction in his
income as a substantial, material change in circumstances not contemplated at the time of the final
judgment of dissolution.” See also Wade v. Hirschman, 903 So.2d 928 (Fla. 2005); Cooper v.
Gress, 854 So.2d 262 (Fla. 1st DCA 2003).
Nearly all of the paragraphs in the former wife’s “Counter Claim” are defensive, that is,
they are directed at the former husband’s amended supplemental petition or they are recitations
from the 2009 Amended Final Judgment or they are citations of law. There are no ultimate facts
alleged in the former wife’s “Counter Claim” of a substantial change, such as, her income has
decreased, his income has increased, her need has increased, etc. Without allegations of facts that
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amount to a substantial change in circumstances, a supplemental petition to modify an alimony
order does not state a cause of action.
Therefore, the former wife’s “Counter Claim” is dismissed and it is denied. This is a final
order.
2. Former husband’s amended supplemental petition is denied
The former husband’s “Amended Supplemental Petition, Etc.,” filed 8/17/2012 requests in
paragraph 4 to “eliminate” or “in the alternative, reduce” the former husband’s alimony obligation.
The substantial change in circumstances alleged to justify this request are:
(a) the former husband “recently suffered a pay decrease as a result of the economy,”
paragraph 3., a.;
(b) the former husband “has had to reduce his work efforts as he has gotten older”
due to “medical conditions,” paragraph 3., b.;
(c) the former wife’s “income has increased,” paragraph 3., c.; and
(d) the former wife’s “need has decreased,” paragraph 3., d.
To decide these issues, the court has considered the factors in §61.08 “Alimony,” as
follows:
(1) In a proceeding for dissolution of marriage, the court may grant alimony to either party, which
alimony may be bridge-the-gap, rehabilitative, durational, or permanent in nature or any
combination of these forms of alimony. In any award of alimony, the court may order periodic
payments or payments in lump sum or both. The court may consider the adultery of either spouse
and the circumstances thereof in determining the amount of alimony, if any, to be awarded. In all
dissolution actions, the court shall include findings of fact relative to the factors enumerated in
subsection (2) supporting an award or denial of alimony.
(2) In determining whether to award alimony or maintenance, the court shall first make a specific
factual determination as to whether either party has an actual need for alimony or maintenance
and whether either party has the ability to pay alimony or maintenance. If the court finds that a
party has a need for alimony or maintenance and that the other party has the ability to pay
alimony or maintenance, then in determining the proper type and amount of alimony or
maintenance under subsections (5)-(8), the court shall consider all relevant factors, including, but
not limited to:
(a) The standard of living established during the marriage.
In the Amended Final Judgment filed 5/13/2009, regarding the parties’ standard of living
during the marriage the court found:
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“The parties had a modest standard of living during the marriage. The wife’s standard of
living during the marriage was enhanced by regular cash gifts from her father, some of
which was spent by the wife in the year they were received.”
(b) The duration of the marriage.
In the Amended Final Judgment filed 5/13/2009, the court found:
“The parties were married on July 30, 1983 and they separated on December 28, 2004, so
they were married for over 21 years .”
(c) The age and the physical and emotional condition of each party.
In the Amended Final Judgment filed 5/13/2009, regarding the physical and emotional
condition of each party the court found:
“The husband is 51 years old. He is a real estate broker. He has been an agent since
1981 and a broker since 1983. He has no other sources of income than his real estate
business. In 1994 he was diagnosed with a liver disease, that is, a hepatitis C infection, and
after treatment he had a liver transplant in 1999. He has high blood pressure. He takes
medication regularly for the transplant, the infection, and his other conditions. He is still
infected with the hepatitis C virus. He works as a manager of a real estate office and as
such he earns a percentage of the commissions earned by the agents in the office as well as
commissions on his own listings and sales. He must have checkups and blood tests
frequently. He has health insurance through his job. The medical conditions and side
effects from the medication make him tired, sometimes nauseous, and give him occasional
headaches, all of which often makes him unable to work a full 40 hour week. His
conditions are not likely to improve as he gets older. Rather, it is likely that he will have to
reduce his work efforts in the future.
The wife is 50 years old. She has been diagnosed with major depressive disorder,
for at least the last few years. She sees a psychologist for psychotherapy, four times in
2008 with the last visit in October 2008, and she takes antidepressant medication. She
works full time as a clerk at a department store. She works 35 hours a week and her gross
monthly income is $1,640.
The wife is a licensed practical nurse but she has not worked at that profession in
many years and her psychologist is of the opinion that she cannot do the work of an L.P.N.
in her present condition.
A vocational rehabilitation expert evaluated the wife. He agrees that the wife is
depressed. He found that the wife worked primarily as a homemaker during the marriage,
although before the couple married she was an L.P.N. and worked at that profession for a
few years before the couple married and early in the marriage. He did not think the wife
could go to work as an L.P.N. at this time without some additional training. Since 1999 the
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wife has provided primary care to her parents, as well as to the parties’ children, both of
whom are now grown. This expert believed that the wife could start to work “gradually”
and part time in a medical office or hospital, although he would defer to a treating
physician or psychologist who believed the wife might be incapable of working as an
L.P.N.
The court finds the wife is working to the best of her ability in her present job as a
clerk in a department store earning gross monthly income of $1,640.”
From the evidence at the trial on 7/10/2013 on the former husband’s supplemental petition
to modify, the court finds:
The former husband is now four years older and his health has deteriorated since the first
trial in 2/2009 so that he is now routinely not able to work a 40 hour week. He takes about 29
different prescribed medications that have many debilitating side effects, but the court finds that
this deterioration in his health and the routine shortening of his work week has not materially
reduced his income or reduced his ability to earn sufficient income to meet his own needs after he
pays alimony of $1,100 a month to the former wife.
As for the former wife, she is also four years older. Since 2002 the former wife suffers
from recurring spells of clinical depression, anxiety, and mild cognitive impairment, for which she
is prescribed medications. The court accepts the opinions of the former wife’s treating psychiatrist
who testified at the trial. She was a credible witness.
All of these conditions are aggravated by stressful situations, such as a former job she had
working in a doctor’s office. The former wife has difficulty concentrating, staying on task, and
keeping her thoughts focused. These conditions preclude her from working in a skilled position.
Since 2002 the former wife has been admitted three times to mental institutions for diagnosis and
treatment. The former wife’s conditions are chronic and not likely to improve. Like the former
husband’s conditions, they must be managed.
Her conditions do not prevent her from hold a job. In fact, as her psychiatrist testified, a
job provides her with structure and a purpose and these tend to ameliorate the symptoms of her
mental conditions. The former wife has recently obtained a new job as a retail clerk that she will
start in the very near future.
(d) The financial resources of each party, including the nonmarital and the marital assets and
liabilities distributed to each.
Regarding the assets and liabilities of the parties, in the Amended Final Judgment filed
5/13/2009, the court made an equal equitable distribution, as shown on Schedule 1 attached to the
judgment. Each party received $379,209 of net assets. They had very few liabilities, ($25,295),
and all of the liabilities were distributed to the former wife, except for a car loan on a car
distributed to the former husband.
Now the former wife’s net worth is $476,878 (FW Ex. E-2, Schedule IV) and the former
husband’s is $944,125 (FW Ex E-2, Schedule III). So, both parties have increased their net worth,
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the former wife by about $100,000, and the former husband by about $560,000, or more than five
times the former wife’s increase. Much of his increase is due to accounts and real estate he holds
jointly with his mother and his present wife, but these are still his funds and his real estate as much
as it is theirs, and the court is required to consider the extent of his property.
Regarding the former husband’s income, the court must determine his net income after his
legitimate business expenses and after his taxes in order to decide the issue of alimony.
During the marriage and since the divorce and until the present day, the former husband is
a self-employed real estate agent who lists and sells his own properties and he also manages other
agents in the office where he works. He is a self-employed manager of real estate agents in the
office of a real estate broker, which is the same work he did during the marriage. He now manages
17 real estate agents, according to the owner of the firm, or 15 agents, according to the former
husband. He earns a percentage of their commissions and also commissions on his listings and his
direct sales. He is an independent contractor and his gross income from the firm is reported on a
Form 1099.
The court accepts the opinions of the former wife’s forensic financial witness. He was a
credible witness.
In 2009 the former husband’s gross self-employment business income was $210,900 as
shown on his Form 1040, Schedule C. In 2010 it was $150,006. In 2011 it was $89,197. In 2012
the former husband’s gross business income from his self-employment was $145,958, as shown on
his Form 1099. His 2012 Form 1040 was not in evidence. There was no documentary evidence of
his 2013 income to date. His only financial affidavit was filed 6/15/2012.
His net business income is arrived at by subtracting his legitimate business expenses.
However, the business expenses that the former husband claims are interesting and they were not
fully explained or detailed in his evidence. He has imaginative ideas about what is a legitimate
ordinary and reasonable business expense. For instance, he testified that his expenses to own and
operate his 2002 Welcraft boat are deductible business expenses because he and his present wife
use that boat and she is also a real estate agent and they always talk about business when they are
on the boat. He also believes that all of the expenses he incurs to own, carry, shoot, and train with
firearms are ordinary and reasonable business expenses because he shows empty houses to
prospective buyers. He also said his medical conditions prevent him from showing houses.
The former husband gave no explanation of all of the business expenses that he claims on
his Form 1040, Schedule C. The court has no confidence in the former husband’s notions of
proper bookkeeping or his understanding of the Internal Revenue Code, so the court has no
confidence in his reported net income. Nevertheless, his gross business income minus the average
of his claimed “business expenses” is the only measure of his income available in this record, even
though his claimed “business expenses” very likely include many “in kind” expenses that are
income under §61.30(2).
In general, his claimed “business expenses,” which include his boating and shooting
expenses and perhaps other “in kind” living expenses, average between $50,000 to $55,000 a year,
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so deducting those amounts from his gross business income gives some idea of his net business
income, which would be his adjusted gross income before taxes and before his alimony payments
are deducted.
Looking at his gross business income, it went down from $210,900 in 2009 to $89,197 in
2011, perhaps “as a result of the economy” as he alleged, but that was only a temporary reduction.
His gross business income had recovered by 2012 to $145,958. He gave no documentary evidence
regarding his 2013 income to date.
The former husband’s net business income is $7,917 gross per month, rounded, $7,900.
The former husband’s 2012 Form 1040 is not in evidence. Using the former husband’s 2010 Form
1040, Schedule C, as a guide to his 2012 Schedule C net business income, the former husband had
about $95,000 of net business income in 2012. In 2010, his net business income was $101,525,
Line 12, Form 1040 2010, and his gross business income was $150,451. So, his business expenses
were about ($50,000). Even allowing the former husband to use his imaginative ideas about
legitimate business expenses, he had about $100,000 of net business income in 2010 and because
his gross business income in 2012 was $145,958 and assuming his business expenses are about the
same, ($50,000), his net business income in 2012 was at least $95,000.
So, his monthly gross income from his business operation was about $7,900 in 2012.
($95,000/ 12 = $7,917) The tax effect of the alimony payment of $1,100 from gross income of
$7,900 and the former husband’s net income are shown on Exhibit A attached. As shown there,
the former husband’s net monthly income is twice that of the former wife, $2,366 vs. $5,043. The
former husband shows ($3,919) in monthly expenses on his financial affidavit filed 6/12/2012.
(FW Ex. C-2) So, he has sufficient net income for his financial needs after he pays the alimony
ordered in the 2009 Amended Final Judgment, $1,100 a month.
In the 2009 the court found that the former husband’s gross monthly income was “$4,744
in February 2009.” In fact, his gross monthly income for 2009 turned out to be $8,333. ($152,000
gross business income less $52,000 estimated business expenses / 12 = $8,333) (FH Ex. 3, Form
1040, Line 12, Business income, Schedule C)
Regarding the former wife’s income, the 2009 Amended Final Judgment found that she
was then working as a retail clerk “35 hours a week and her gross monthly income was $1,640.”
The former wife is due to begin a new retail job in the very near future at a local store working an
average of 30 hours a week and earning about $11 an hour, which is about $1,430 gross each
month. (30 x $11 x 4.33) So, she is now earning slightly less than she was in 2009.
While her earned income did increase from 2009 to 2012, from $25,975 to $41,054,
because she moved from her 2009 retail job to a better paying job in a doctor’s office, she
involuntarily lost that better paying job on 3/19/2013 because of reasons attributable to her
employer, not to her. She was laid off and she qualified for unemployment compensation after she
lost that job. She was collecting $1,192 gross per month in those benefits on the trial date,
7/10/2013. So, she did not voluntarily quit the higher paying job, even if she found it very stressful
and even if her psychiatrist said that such a job might be too stressful for her. After she lost that
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job she made a good faith job search, which resulted in the new retail job that she will start in the
very near future.
The court finds that the former wife’s gross earned income in 2013 will be $22,407. (3
months @ $3,417, her gross income from her job in a doctor’s office [$41,054/ 12 = $3,417], plus
3 months @ $1,192, her unemployment compensation, plus 6 months @ $1,430, her gross
monthly income from her current retail job = $22,407 gross annual income for 2013.)
There is no factual basis in this record to justify imputing income to the former wife
greater than her present income from her new retail job. She is not voluntarily underemployed.
Her medical conditions prevent her from working at a job requiring a higher skill level or greater
stress, such as the job she formerly had in a doctor’s office, although she made applications for
such jobs after she was laid off 3/19/2013. Her new job will diminish the symptoms of her
depression and anxiety by providing her with a structure to her daily life and by giving her
“something to do,” as her psychiatrist testified.
She will be able to purchase health insurance through this job, for a monthly premium that
is slightly less each month than it cost her in 2009, although the deductibles and co-pays may not
be comparable. There was no evidence comparing her health insurance coverage then with what
she will have in her new job.
The former wife has been licensed as a licensed practical nurse since 1982. Her license is
still current. She applied for jobs appropriate for this license after she was laid off 3/2013. She has
not worked as an L.P.N. for many years. She is now working to the best of her ability. She is not
underemployed.
(e) The earning capacities, educational levels, vocational skills, and employability of the parties
and, when applicable, the time necessary for either party to acquire sufficient education or
training to enable such party to find appropriate employment.
See above.
(f) The contribution of each party to the marriage, including, but not limited to, services rendered
in homemaking, child care, education, and career building of the other party.
In the 2009 Amended Final Judgment, the court found that the parties contributed equally.
(g) The responsibilities each party will have with regard to any minor children they have in
common.
The parties have no minor children now and they had none in 2009.
(h) The tax treatment and consequences to both parties of any alimony award, including the
designation of all or a portion of the payment as a nontaxable, nondeductible payment.
Considered.
(i) All sources of income available to either party, including income available to either party
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through investments of any asset held by that party.
See above. The parties have no significant income beyond what they are earning. Their tax
returns do not report any significant interest and dividend income.
(j) Any other factor necessary to do equity and justice between the parties.
The initial divorce petition in this case was filed on 3/9/2005 and the case was tried the
first time in 2/2009. The former husband filed his initial supplemental petition to modify the
alimony on 5/4/2012, and the former wife filed her “Counter Claim” on 5/17/2012. These petitions
were tried yesterday, 7/10/2013. This court file now consists of four volumes.
These parties are highly litigious, being infected with “Wrona’s disease.” Bogos v. Bogos,
936 So.2d 1184 (Fla. 2d DCA 2006); Wrona v. Wrona, 592 So.2d 694 (Fla. 2d DCA 1991).
(8) Permanent alimony may be awarded to provide for the needs and necessities of life as they
were established during the marriage of the parties for a party who lacks the financial ability to
meet his or her needs and necessities of life following a dissolution of marriage. Permanent
alimony may be awarded following a marriage of long duration if such an award is appropriate
upon consideration of the factors set forth in subsection (2), following a marriage of moderate
duration if such an award is appropriate based upon clear and convincing evidence after
consideration of the factors set forth in subsection (2), or following a marriage of short duration if
there are written findings of exceptional circumstances. In awarding permanent alimony, the court
shall include a finding that no other form of alimony is fair and reasonable under the
circumstances of the parties. An award of permanent alimony terminates upon the death of either
party or upon the remarriage of the party receiving alimony. An award may be modified or
terminated based upon a substantial change in circumstances or upon the existence of a
supportive relationship in accordance with s. 61.14.
This is a long term marriage. In making this award of permanent alimony, the court hereby
finds that no other form of alimony is fair and reasonable under the circumstances of the parties.
(9) The award of alimony may not leave the payor with significantly less net income than the net
income of the recipient unless there are written findings of exceptional circumstances.
The former husband can easily meet his own living expenses after he pays the former wife
$1,100 a month in alimony. He has twice as much net income each month as she has after he pays
her the alimony.
The former husband’s net business income is $7,917 gross per month, rounded, $7,900.
The former husband’s 2012 Form 1040 is not in evidence. Using the former husband’s 2010 Form
1040, Schedule C, as a guide to his 2012 Schedule C net business income, the former husband had
about $95,000 of net business income in 2012. In 2010, his net business income was $101,525,
Line 12, Form 1040 2010, and his gross business income was $150,451. So, his business expenses
were about ($50,000). Even allowing the former husband to use his imaginative ideas about
legitimate business expenses, he had about $100,000 of net income in 2010 and because his gross
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business income in 2012 was $145,958 and assuming his business expenses are about the same,
($50,000), his net business income in 2012 was at least $95,000.
So, his monthly gross income from his business operation was about $7,900 in 2012.
($95,000/ 12 = $7,917) The tax effect of the alimony payment of $1,100 from gross income of
$7,900 and the former husband’s net income are shown on Exhibit A attached. As shown there,
the former husband’s net monthly income is twice that of the former wife, $2,366 vs. $5,043. The
former husband shows ($3,919) in monthly expenses on his financial affidavit filed 6/12/2012.
(FW Ex. C-2) So, he has sufficient net income for his financial needs after he pays the alimony
ordered in the 2009 Amended Final Judgment, $1,100 a month.
In the 2009 the court found that the former husband’s gross monthly income was “$4,744
in February 2009.” In fact, his gross monthly income for 2009 turned out to be $8,333. ($152,000
gross business income less ($52,000) estimated business expenses / 12 = $8,333) (FH Ex. 3, Form
1040, Line 12, Business income, Schedule C)
2.1
After considering the foregoing factors, the court finds the former husband’s
“Amended Supplemental Petition” has no merit. Therefore, his petition is denied.
In particular, regarding the allegations of the former husband’s amended supplemental
petition the court finds:
(a) the former husband “recently suffered a pay decrease as a result of the economy,”
paragraph 3., a.
This allegation has no merit. In fact his income increased from 2011 to 2012 and his
income in 2013 year to date is undocumented. Any reduction in his income after 2009 was
temporary, not permanent.
(b) the former husband “has had to reduce his work efforts as he has gotten older” due to
“medical conditions,” paragraph 3., b.;
This allegation has no merit. While he is not able to work quite as long or as hard as
he did in 2009, his income is not reduced as a result.
(c) the former wife’s “income has increased,” paragraph 3., c.; and
This allegation has no merit. While her income did increase from 2009 through
3/2013, it is now less than it was in 2009 due to no fault of her own and she is not now
underemployed. Any increase in her income was temporary and not permanent.
(d) the former wife’s “need has decreased,” paragraph 3., d.
This allegation has no merit. Her financial need now is no less than it was in 2009.
2.2
After considering the foregoing factors, the court also denies the former husband’s
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request to reduce his alimony obligation retroactively from the date of filing of his
supplemental petition, 5/4/2002, until 3/19/2013, when the former wife involuntarily lost her job
in a doctor’s office. Under the facts of this case the court finds it is inequitable to do so.
The former husband’s initial petition was filed 5/4/2012. He alleged then that his income
had decreased “as a result of the economy.” In fact, his gross business income increased from
$89,197 in 2011 to $145,958 in 2012.
The former wife’s gross earned income in 2012 was $41,054, or $3,417 gross per month.
($41,000/ 12 = $3,417) (FH Ex. 6) Her gross earned income in 2009 was $25,975. (FH Ex. 6), so
her income also increased since the 2009Amended Final Judgment.
The court finds that her gross earned income in 2013 will be $22,407. (3 months @ $3,417,
her gross income from her job in a doctor’s office [$41,054/ 12 = $3,417], plus 3 months @
$1,192, her unemployment compensation, plus 6 months @ $1,430, her gross monthly income
from her current retail job = $22,407 gross annual income for 2013.)
So, while the former wife enjoyed an increase in her income during 2012, that was a
temporary rise in her income, a rise that she lost when she was involuntarily laid off on 3/19/2013.
Now, she has less income than she had in 2009, due to no fault of her own. She is not
underemployed. She is working at a job that is appropriate for her medical conditions, a job that
may ameliorate the symptoms from her depression and anxiety. She is working to the best of her
ability.
Further, the former husband has not cited the court to a reported case in which an alimony
payor was granted a reduction in the alimony for a period of time while the supplemental petition
was pending but the petition was denied on the merits, which is this case.
So, this case is nothing like the facts in Thyrre v. Thyrre, 963 So.2d 859 (Fla. 2d DCA
2007), in which the appellate court ruled that the alimony payor was entitled to reduce the alimony
payment retroactively to the date of the filing of the supplemental petition when the court granted
the petition on the merits. Here, the court denies the former husband’s petition on the merits.
For the foregoing reasons and on the foregoing facts, the court denies the former husband’s
request for retroactive reduction in the alimony from 5/4/2012 to 3/19/2013.
3. Attorney's Fees, Costs, and Suit Money The court reserves jurisdiction over the issue of
attorney’s fees, costs, and suit money, both entitlement and amount, for further hearings. Any
further hearing on these issues must be preceded by a motion by either party asking for fees, costs
or suit money, and a notice of hearing on the motion.
4. Reservation of Jurisdiction The court reserves jurisdiction of this action to enforce this final
judgment and for all purposes specifically reserved.
Done and ordered in Fort Myers, Lee County, Florida, this ___________________
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R. Thomas Corbin, Circuit Judge
Copies provided to:
Esq., and Esq.
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