JOHN BERRY DAVIS, APPELLANT,
v.
WANDA D. DAVIS, APPELLEE
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This marriage dissolution appeal addresses the proper treatment of alimony payments when a payor demonstrates an inability to pay. The court held that alimony payments should be suspended rather than abated with accumulating arrearages when the inability to pay is genuine and not willfully created.
When a payor is genuinely unable to pay support alimony (and the inability is not willfully created), the obligation should be suspended until the payor's ability is restored, rather than abated with continuing accumulation of arrearages. If ability is later restored, the payee may petition for resumption of payments.
[1] When a party demonstrates an inability to pay support alimony, the proper course is to suspend payments until the ability to pay is restored.
[2] A court should not order a party to continue accumulating alimony arrearages when the party is presently unable to pay support alimony.
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Join FLexlaw to unlock all legal intelligence“Because appellant is presently unable to pay the support alimony he should be relieved of the obligation. To cause him to go deeper and deeper and deeper in debt, as the months of his inability to pay the $1,383.33 per month support continue, potentially puts him in a hole from which he could never be extricated, save a win at the lottery or other bonanza.”
Establishes the court's concern that abatement with accumulating arrearages creates an impossible debt spiral.
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Join FLexlaw to unlock all legal intelligenceIn a marriage dissolution case, the trial court found that the appellant husband was unable to pay the ordered monthly support alimony of $1,383.33. R…
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DAUKSCH, Judge.
This is an appeal from an order in a marriage dissolution case. The order denies the appellant’s petition for modification. Based upon the record and argument before us we cannot disagree with any of the findings and rulings of the trial judge, save one. While implicitly finding the husband unable to pay the requisite alimony the court did not order cessation of those payments but that “The payment of alimony is abated at this time. The arrearages will continue to accumulate without interest and may be reduced to a judgment.” Inherent in this portion of the order are various problems. Because appellant is presently unable to pay the support alimony he should be relieved of the obligation. To cause him to go deeper and deeper and deeper in debt, as the months of his inability to pay the $1,383.33 per month support continue, potentially puts him in a hole from which he could never be extricated, save a win at the lottery or other bonanza. Not only that, under this judgment scheme even his estate would be lessened by the support alimony judgment; a very effective tool for involuntary disinheritance. When an inability to pay support alimony arises the only proper thing to do is suspend payments until the ability is restored. Of course, if the court finds the inability to pay is a result of intentional refusal to work or other wilfully created inability then no suspension of the support obligation should be allowed. That is not this case.
The order is affirmed in all respects except that the order of abatement of support alimony payments is changed to a suspension of those payments, until further order of the trial court, if any. Should appellant become able to make those payments, in whole or in part, in the future, then appel-lee can petition the court for a modification to cause the resumption of payments.
AFFIRMED as modified.
SHARP, C.J., and ORFINGER, J., concur.
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Hedstrom v. Hedstrom, 123 So. 3d 150 (Fla. 5th DCA 2013)…tive for [the payor] to seek other employment.”). When calculating arrearage during this temporary period of reduced income, a payor’s complete inability to pay requires cessation of arrearage accrual, not mere abatement of payment. Davis v. Davis, 528 So. 2d 34, 35 (Fla. 5th DCA 1988). As we explained in Davis, “[to] cause [the payor] to go deeper and deeper and deeper in debt, as the months of his inability to pay [the alimony] continue, potentially puts him in a hole from which he could never be extricat…
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Addison L. Bain v. Ingeborg K. Bain, 687 So. 2d 79 (Fla. 5th DCA 1997)…nnett v. Department of Revenue, 664 So. 2d 33 (Fla. 5th DCA 1995) (holding that it was error to continue the support obligation where the payor had become unemployed and lacked the ability to pay support through no fault of his own); Davis v. Davis, 528 So. 2d 34, 35 (Fla. 5th DCA 1988) (‘When an inability to pay support alimony arises the only proper thing to do is suspend payments until the ability is restored.”). Additionally, we agree with the former husband’s assertion that the court erred in consideri…
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McINTOSH v. Delle D. McINTOSH, 915 So. 2d 742 (Fla. 5th DCA 2005)…0). When an inability to pay alimony arises, a court must suspend payments until the ability is restored, unless the party’s inability to pay is the result of an intentional refusal to work or other willfully created inability. E.g., Davis v. Davis, 528 So. 2d 34 (Fla. 5th DCA 1988). Where the change in circumstances is unintentional and not willful, the obligor’s alimony obligation should be reduced to be more commensurate with his current ability to pay. E.g., Kinne v. Kinne, 599 So. 2d 191 (Fla. 2d DCA 19…
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