MICHELE ISAACSON, APPELLANT,
v.
HARRIS ISAACSON, APPELLEE
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A Florida appellate court reversed the trial court's termination of permanent periodic alimony, holding that because the husband's petition sought only reduction of alimony rather than termination, the trial court exceeded its authority by canceling alimony entirely. The court remanded for further proceedings to determine an appropriate reduction.
The trial court erred in terminating permanent periodic alimony because the husband's petition explicitly sought only reduction, not cancellation, of alimony. The court lacked authority to grant relief broader than that requested.
[1] A trial court errs by terminating permanent periodic alimony when the petition before it sought only a reduction in alimony payments.
[2] A party seeking modification of alimony must specifically request termination if that is the desired outcome.
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“The petition, on its face, clearly did not seek a cancellation, but only a reduction in alimony payments. As a consequence it was error for the trial judge to so rule.”
Establishes the legal principle that a court cannot grant termination of alimony when only reduction was requested in the petition.
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Join FLexlaw to unlock all legal intelligenceIn 1982, the parties dissolved their marriage. The wife remained home caring for three children, one with spina bifida, despite holding a bachelor's d…
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SHIVERS, Judge.
The wife appeals termination of permanent periodic alimony. We reverse.
At the time of the dissolution in 1982 the wife was in the home, caring for the parties’ three children, one of whom suffered from spina bifida, a congenital defect of the spine. Although the wife had a bachelor’s degree in animal science, she felt it necessary to remain home to care for the child. The husband, a law graduate who had never applied to the bar, was actively engaged in farming. The final judgment provided that the husband pay $35,000 in lump sum alimony, $900 per month in child support, and $700 per month in permanent periodic alimony.
The husband had difficulty in living up to the terms of the final judgment and was periodically brought back to court by the wife seeking enforcement of the judgment.
On March 16, 1984, the husband filed a petition to modify the final judgment, seeking reduction of alimony, child support, and general relief. He maintained that a change of circumstances warranted relief. The changes in circumstance were that the wife was now employed selling veterinary supplies, with a gross salary of $18,000 per year; and that the husband, due to a depletion of his assets, was reduced to freelance front-end loader work, grossing $287.50 per week. At the hearing, the husband acknowledged an arrearage of $9,215.00 for alimony and child support. The trial judge found that there had been a substantial change in circumstances, such that the husband could no longer pay alimony and that the wife no longer needed it. He therefore terminated alimony immediately.
The wife concedes that the alimony should be temporarily reduced but maintains it should not have been terminated. The thrust of the wife’s appeal is that since the husband only sought reduction of alimony, and not its termination, the court’s action is clearly erroneous. We agree. As was stated in Jennings v. Jennings, 353 So. 2d 921 (Fla. 4th DCA 1978):
“The petition, on its face, clearly did not seek a cancellation, but only a reduction in alimony payments. As a consequence it was error for the trial judge to so rule. Herbert v. Herbert, 304 So. 2d 465 (Fla. 4th DCA 1974).” p. 921.
As in Jennings, supra, this court is concerned with the finality of a cancellation of alimony.
We therefore, REVERSE as to the termination of the permanent alimony and REMAND for further proceedings.
BOOTH and ZEHMER, JJ., concur.
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Citator
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Suzette Reno v. Reno, 884 So. 2d 462 (Fla. 4th DCA 2004)…ccordingly we hold that cancellation must be pled in order that the opposing spouse be given adequate notice. Id. at 921-22 (emphasis added) (citations omitted); see also Herbert v. Herbert, 304 So. 2d 465 (Fla. 4th DCA 1974); Isaacson v. Isaacson, 463 So. 2d 513 (Fla. 1st DCA 1985) (where husband only requested reduction of alimony, trial court abused its discretion in terminating alimony). As is also well settled, while it is error for the trial court to grant relief for an issue not raised in the pleadin…
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Schiffhauer v. Schiffhauer, 485 So. 2d 838 (Fla. 1st DCA 1986)…es reasonably connected with her herpes would be an issue at trial and to support the relief granted by the trial court. In support of his contention that it was error to grant the medical relief to the wife, the husband cites Isaacson v. Isaacson, 463 So. 2d 513 (Fla. 1st DCA 1985), Jennings v. Jennings, 353 So. 2d 921 (Fla. 4th DCA 1978), and Herbert v. Herbert, 304 So. 2d 465 (Fla. 4th DCA 1974). These cases all dealt with trial courts’ terminations of alimony where the husband had only sought reduction i…
Authorities Cited
- Herbert v. Herbert, 304 So. 2d 465 (Fla. 4th DCA 1974)
- Jennings v. Jennings, 353 So. 2d 921 (Fla. 4th DCA 1978)