JOSEPH GREGORY DESANTIS, APPELLANT,
v.
ANN SMITH, F/K/A ANN SMITH DESANTIS, APPELLEE
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Joseph Gregory DeSantis appealed a trial court order reducing his alimony obligation from $600 to $450 per month and awarding his former wife 75% of her attorney's fees. The appellate court affirmed the trial court's denial of retroactive modification but reversed the alimony reduction amount and the attorney's fees award, remanding for recalculation of alimony based on substantial changes in the parties' financial circumstances.
The court affirmed the denial of retroactive modification as within the trial court's discretion. The court reversed the alimony reduction amount, finding the evidence supported a substantially greater reduction than the $150 monthly decrease granted. The court reversed the attorney's fees award, finding no record support for it and requiring each party to bear their own costs and fees.
[1] Retroactivity is the rule rather than the exception when a trial court grants a modification of alimony or child support, but the decision to make the modification retroa…
[2] A substantial change in circumstances warrants a reduction in alimony.
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“Retroactivity is the rule rather than the exception which guides the trial court's application of discretion when modification of alimony or child support is granted.”
Establishes the presumptive rule that alimony modifications are retroactive, though trial courts retain discretion to deny retroactivity.
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Join FLexlaw to unlock all legal intelligenceDeSantis sought to reduce his alimony obligation. The former wife (Ann Smith) had a substantially enhanced net worth, slight increase in net income, a…
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PER CURIAM.
Appellant, Joseph Gregory DeSantis, appeals from an order decreasing his alimony obligation from $600.00 per month to $450.00 per month, requiring that he pay seventy-five percent of his former wife’s attorney’s fees in an amount left for future determination, and denying his request to make the reduction retroactive to the date of filing the application for reduction.
Retroactivity is the rule rather than the exception which guides the trial court’s application of discretion when modification of alimony or child support is granted. However, it is within the trial court’s discretion to determine whether to make the modification retroactive, and we find no abuse of discretion on this record. See Bloom v. Bloom, 503 So. 2d 932 (Fla. 4th DCA 1987). We therefore affirm the action of the trial court in that regard, but reverse as to the other aspects of the order granting modification.
The evidence shows that appellee, the former wife, has a substantially enhanced net worth, a slight increase in net income, and a slight decrease in monthly expenses. Her overall financial picture is substantially brighter than in 1982, the time of the prior modification. Appellant, on the other hand, while enjoying a modest improvement in net worth, has suffered a substantial reduction in net available income. While his expenses are less than in 1982, he still experiences monthly expenses substantially in excess of his income.
One countervailing factor in our analysis is the fact that an expert testified that under appropriate circumstances appellant could obtain employment that would substantially increase his current income. Appellant, on the other hand, submitted evidence of a reasonable but unsuccessful effort to obtain employment at a salary level commensurate with his education and training.
Based upon the foregoing, we conclude that appellant has shown a substantial change in circumstances warranting a reduction in alimony. See England v. England, 520 So. 2d 699 (Fla. 4th DCA 1988). See also Pimm v. Pimm, 601 So. 2d 534 (Fla.1992).
While the trial court reduced appellant’s alimony obligation from $600.00 per month to $450.00 per month, the evidence supports and indeed requires a much more substantial reduction. For that reason we reverse and remand for further appropriate proceedings. Similarly, the record does not support an award of attorney’s fees for appellee. The parties should be required to bear their own costs and attorney’s fees.
AFFIRMED IN PART; REVERSED IN PART; REMANDED.
ANSTEAD and HERSEY, JJ., and MAGER, GERALD, Senior Judge, concur.
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Woolf v. Woolf, 901 So. 2d 905 (Fla. 4th DCA 2005)…were all undisputed. Based on these circumstances, we conclude that the former husband has met this high burden. We further conclude that the former husband would be entitled to retroactive relief to the date of his petition. See DeSantis v. Smith, 634 So. 2d 796, 797 (Fla. 4th DCA 1994). On remand, the trial court shall use the former husband’s $45,000 gross income figure as reflected in his financial affidavit in determining the amount of his modified child support and alimony obligation (unless there has…
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Thyrre v. Thyrre, 963 So. 2d 859 (Fla. 2d DCA 2007)…” Ray v. Ray, 707 So. 2d [*862] 358, 360 (Fla. 2d DCA 1998). “Retroactivity is the rule rather than the exception which guides the trial court’s application of discretion when modification of alimony or child support is granted.” DeSantis v. Smith, 634 So. 2d 796, 797 (Fla. 4th DCA 1994). Accordingly, there is a presumption of retroactivity which applies unless there is a basis for determining that the award should not be retroactive. “It is an abuse of discretion ... to fail to award support from the date o…
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Lemon v. Groninger, 708 So. 2d 1025 (Fla. 5th DCA 1998)….1974). Only where a separate and distinct cause of action is pleaded which is not interdependent with the other pleaded claims, should it be appeal-able if dismissed with finality at the trial level. Mendez; Patterer v. Builders Supply House, Inc., 634 So. 2d 796 (Fla. 3d DCA 1994); Clermont Builders Supply, Inc. v. General Construction & Design, Inc., 423 So. 2d 518 (Fla. 5th DCA 1982). As noted in Altair Maintenance Services, Inc. v. GBS Excavating, Inc., 655 So. 2d 1281 (Fla. 4th DCA 1995), an appeal is p…
Previewing 3 of 13 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Pimm v. Pimm, 601 So. 2d 534 (Fla. 1992)
- Schwinder v. Wilson, 503 So. 2d 932 (Fla. 3d DCA 1987)
- Bloom v. Bloom, 503 So. 2d 932 (Fla. 4th DCA 1987)
- Junetta E. England v. England, 520 So. 2d 699 (Fla. 4th DCA 1988)