JANET L. BASHAW, APPELLANT,
v.
THOMAS A. BASHAW, APPELLEE
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Janet Bashaw appealed an order denying her petition to modify alimony from the divorce decree, seeking to increase her monthly alimony from $312.50 to $850 and extend her possession of the marital home. The court affirmed the denial, holding that the changes in the parties' financial circumstances did not constitute a substantial change warranting modification because the income increases were proportional and anticipated expenses were contemplated in the original judgment.
The court held that no substantial change in circumstances warranting modification was demonstrated. Although both parties' incomes increased approximately 25%, the income disparity between them remained substantially the same as in the original judgment. The anticipated expenses and loss of marital home possession were contemplated in the final judgment and therefore could not support a modification petition.
[1] A party seeking modification of a final judgment of dissolution must demonstrate a substantial change in circumstances since the entry of the original judgment.
[2] Circumstances contemplated by the original final judgment of dissolution cannot form the basis for a subsequent modification petition.
Previewing 2 of 4 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“However, these latter circumstances were contemplated by the final judgment and thus may not be considered as a change in circumstances.”
Establishes the key legal principle that anticipated consequences of the original judgment cannot constitute a substantial change in circumstances warranting modification.
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Join FLexlaw to unlock all legal intelligenceAt the time of the final dissolution judgment, Janet Bashaw received rental property producing $255/month net income, $312.50/month rehabilitative ali…
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DOWNEY, Judge.
The appellant, Janet L. Bashaw, petitioned the trial court to modify the final judgment of dissolution and increase the amount of alimony awarded to her. From an order denying her petition appellant has perfected this appeal. We affirm.
In the final judgment of dissolution the trial court awarded the appellant a piece of rental property in Dallas, Texas, which produces a net rental of $255 per month; $312.50 per month rehabilitative alimony for 24 months; possession of the marital home for 24 months; some personal property; and attorney’s fees. At that time the wife was earning $98 per week. The judge awarded appellee the marital home (subject to the appellant’s possession for 24 months) and some personal property. At that time the husband’s annual income was approximately $32,000.
Mrs. Bashaw’s appeal from the final judgment resulted in this court’s reversing the award of rehabilitative alimony and directing that it be made permanent.1 Some months after this court’s mandate issued, appellant filed her petition to modify the award of alimony from $312.50 to $850 per month and to extend her possession of the marital home until the hearing on the petition to modify.
The evidence adduced by the parties at the modification hearing showed that at the time of the hearing appellant had income of $150 per week from her salary; her income from the Dallas rental property had increased by $25 per month from the time of dissolution and she received $160 per month from a boarder in a home that she had been forced to rent when her possession of the marital home was terminated. She also received $350 per month permanent alimony. On the liability side of the ledger, appellant was paying $350 per month rent and owed numerous bills.
The evidence relative to the husband’s changed circumstances reflected that he was then earning approximately $42,000 per year. According to appellant’s calculations the appellee’s income had increased approximately 25% during the interim from final judgment to hearing on the petition for modification. The appellant’s income picture increased at about the same rate, if one excludes the income from the boarder. Of course, appellant has certain outstanding bills and she now has to pay rent for lodging, whereas, at final judgment she was given possession of the marital home for 24 months.
However, these latter circumstances were contemplated by the final judgment and thus may not be considered as a change in circumstances. Jaffee v. Jaffee, 394 So. 2d 443 (Fla. 3rd DCA 1981); Ashburn v. Ashburn, 350 So. 2d 1158 (Fla. 2d DCA 1977); Howell v. Howell, 301 So. 2d 781 (Fla. 2d DCA 1974). When one considers appellant’s current financial situation as compared with appel-lee’s, the disparity in incomes lies in the original award made in the final judgment, which this court approved in the prior appeal except for the rehabilitative alimony. Excluding anticipated changes, the disparity has not changed substantially.
Thus, no error has been demonstrated in the order appealed from.
AFFIRMED.
LETTS, C. J., and HURLEY, J., concur. . Bashaw v. Bashaw, 382 So. 2d 1352 (Fla. 4th DCA 1980).
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Rosen v. Rosen, 696 So. 2d 697 (Fla. 1997)…ber of district court decisions in support of this argument. See, e.g., Long v. Long, 622 So. 2d 622 (Fla. 2d DCA 1993); Allison v. Allison, 554 So. 2d 1196 (Fla. 1st DCA 1989); Gray v. Lauscher, 537 So. 2d 708 (Fla. 5th DCA 1989); Bashaw v. Bashaw, 412 So. 2d 433 (Fla. 4th DCA 1982); Jaffee v. Jaffee, 394 So. 2d 443 (Fla. 3d DCA 1981). The issue presented is whether, as a principle of law, a trial judge has the authority to alter alimony from permanent to rehabilitative based, in part, on the same employ-ab…
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Rosen v. Rosen, 528 So. 2d 42 (Fla. 3d DCA 1988)…6 So. 2d 1052 (Fla. 3d DCA 1983), because the bases for modification, excluding a $100,000 gift made to Eileen Rosen by her father, do not reflect any significant change in circumstance from the time of entry of the original award. Bashaw v. Bashaw, 412 So. 2d 433 (Fla. 4th DCA 1982); Jaffee v. Jaffee, 394 So. 2d 443 (Fla. 3d DCA 1981). Specifically, the wife’s em-ployability was known at the time of the previous award and, thus, could not be considered. Coe v. Coe, 352 So. 2d 559, 560 (Fla. 2d DCA 1977); How…
Authorities Cited
- Jaffee v. Jaffee, 394 So. 2d 443 (Fla. 3d DCA 1981)
- Ludmila R. Ashburn v. Ashburn, 350 So. 2d 1158 (Fla. 2d DCA 1977)
- Howell v. Howell, 301 So. 2d 781 (Fla. 2d DCA 1974)
- Howell v. Howell, 301 So. 2d 781 (Fla. 2d DCA 1974)
- Bashaw v. Bashaw, 382 So. 2d 1352 (Fla. 4th DCA 1980)