SAMUEL PERRY PENLAND, SR., APPELLANT,
v.
SYBIL CLAIRE PENLAND, APPELLEE
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This appeal addresses whether a trial court properly denied both Perry's request to terminate alimony and Sybil's requests for alimony increase and a portion of a tax refund following their 1980 divorce. The court affirmed the trial court's denial of modification, holding that neither party demonstrated unanticipated changes in circumstances sufficient to justify modification of the permanent alimony obligation.
The court affirmed the trial court's denial of modification, holding that neither party demonstrated unanticipated changes in circumstances. Sybil's diminishing non-alimony income from assets was anticipated at the time of the final judgment, and Perry failed to show any deterioration in his financial circumstances. The trial court properly applied the pre-divorce "Boney Road Agreement" to govern disposition of the tax refund.
[1] Alimony may not be modified based on anticipated changes in circumstances.
[2] A party seeking modification of alimony must demonstrate unanticipated changes in circumstances.
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Join FLexlaw to unlock all legal intelligence“Alimony may not be modified for anticipated changes in circumstances.”
Establishes the legal standard that modification requires unanticipated changes, citing controlling authority from Jaffee and Withers.
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Join FLexlaw to unlock all legal intelligencePerry and Sybil Penland divorced in 1980 with a final judgment dividing marital property approximately equally ($505,000 to Sybil and $585,000 to Perr…
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MILLS, Judge.
Both parties appeal from an order denying modification of a final judgment of dissolution of marriage. We affirm.
Perry and Sybil Penland were divorced in 1980. The final judgment provided that the marital property would be divided so that Sybil had assets worth approximately $505,000 and Perry had assets worth approximately $585,000. The final judgment also required that Perry pay Sybil $2,000 per month as permanent alimony subject to future modification.
In 1982, Perry sought to have the alimony terminated. In response, Sybil sought an alimony increase. Sybil also asked the trial court to require Perry to pay her a portion of a tax refund received for taxes paid in 1979, a year in which Perry and Sybil filed a joint income tax return.
The trial court found that the circumstances of the parties had not changed enough to warrant modification. The trial court also denied Sybil’s request for a portion of the tax refund on the basis that disposition of the refund was covered by a pre-divorce agreement and on the basis that Perry had earned the income and sustained the loss which generated the refund.
Alimony may not be modified for anticipated changes in circumstances. Jaffee v. Jaffee, 394 So. 2d 443 (Fla. 3d DCA 1981); Withers v. Withers, 390 So. 2d 453 (Fla. 2d DCA 1980). When the trial court entered final judgment, Perry and Sybil knew that Sybil would have substantial assets and non-alimony income from those assets. They also knew that the non-alimony income would decrease and eventually terminate. Sybil’s changed financial circumstances were anticipated and could not serve as a basis for alimony modification. Perry asserts that Sybil’s circumstances have changed because she is now able to supplement her income through gainful employment. The record, however, supports the trial court’s finding that Sybil’s ability to work is limited and that any work she does will be primarily therapeutic. There have been no unanticipated changes in Sybil’s circumstances justifying alimony modification.
Perry’s financial circumstances have not changed enough to warrant a modification of alimony. Perry does not argue on appeal that his financial circumstances have deteriorated. Sybil failed to show anything but a temporary increase in Perry’s income. In addition, Sybil failed to show that she needs more money. We agree with the trial court that alimony modification was not justified.
We find no merit in Sybil’s contention that she should receive a portion of the income tax refund for 1979. The trial court properly found that the pre-divorce agreement between the parties known as the “Boney Road Agreement” governed the disposition of the refund. The trial court did not abuse its discretion in interpreting this agreement.
AFFIRMED.
THOMPSON and WIGGINTON, JJ., concur.
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DePOORTER v. Win Edward DePOORTER, 509 So. 2d 1141 (Fla. 1st DCA 1987)…factors deemed insufficient, hence not a basis for modification, is an anticipated reduction in the paying spouse’s income, e.g., a reduction due to retirement, which was contemplated when the parties entered into the agreement. Penland v. Penland, 442 So. 2d 1054 (Fla. 1st DCA 1983); Landry v. Landry, 436 So. 2d 353 (Fla. 1st DCA 1983); Ward v. Ward, 502 So. 2d 477 (Fla. 3rd DCA 1987); Mastrilli v. Mastrilli, 478 So. 2d 377 (Fla. 2d DCA 1985), review dismissed, 484 So. 2d 9 (Fla.1986). When unmarried cohabi…
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Cowie v. Cowie, 564 So. 2d 533 (Fla. 2d DCA 1990)…den to establish a permanent, unanticipated, substantial change in the financial circumstances of one or both parties. Jones v. Jones, 524 So. 2d 1070 (Fla. 2d DCA 1988); Henderson v. Henderson, 463 So. 2d 485 (Fla. 2d DCA 1985); Penland v. Penland, 442 So. 2d 1054 (Fla. 1st DCA 1983). The parties were married in 1963 and divorced in 1986. At the time of their divorce, the husband was forty-four years old and the wife was forty-three. At that time they had two children; one was a teenager and the other was an…
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Allison v. Allison, 554 So. 2d 1196 (Fla. 1st DCA 1989)…rial court erred in granting modification, citing the well-established principle that alimony may not be modified for anticipated changes in circumstances, including an anticipated reduction in the paying spouse’s [*1198] income. Penland v. Penland, 442 So. 2d 1054, 1055 (Fla. 1st DCA 1983); DePoorter v. DePoorter, 509 So. 2d 1141, 1145 (Fla. 1st DCA 1987). She points out that husband raised the possible ill effects of the Act prior to entry of the final judgment, so that the reduction of income alleged in the…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Jaffee v. Jaffee, 394 So. 2d 443 (Fla. 3d DCA 1981)
- Stach v. Bartsch, 390 So. 2d 453 (Fla. 4th DCA 1980)