SAMYA L. MEKHAIEL, APPELLANT,
v.
RIAD E. MESSIHA, APPELLEE

Fla. 2d DCA | 1994-08-31
No. 93-01319
DANAHY, A.C.J., and LAZZARA, J., concur.
643 So. 2d 11 Florida District Court of Appeal, Second District (1994)

AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.

Synopsis

A former wife appeals a trial court order reducing her permanent alimony from $350 to $150 monthly. The appellate court reverses because the former husband failed to properly plead or establish a permanent change in the wife's economic circumstances as required by Florida law.


Holding

The modification order is reversed because: (1) the trial court improperly reduced alimony for reasons not alleged in the husband's petition, denying the wife notice and opportunity to be heard; and (2) even if the move had been properly alleged, the husband's testimony did not establish that the move to Egypt was permanent, particularly in the absence of the wife's testimony.


Headnotes

[1] A party seeking to modify permanent alimony must plead and prove a permanent change in the recipient's economic circumstances.

[2] A trial court cannot modify alimony based on grounds not pleaded in the petition for modification.

Previewing 2 of 6 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

Key Quotes

“Samya L. Mekhaiel, the former wife, appeals an order that modifies the final judgment of dissolution by reducing her permanent alimony. We reverse because Riad E. Messiha, the former husband, did not plead or establish a permanent change in the wife's economic circumstances.”

States the core holding: reversal based on failure to properly plead and prove a permanent change in circumstances.

Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.

Join FLexlaw to unlock all legal intelligence

Facts & Procedural History

The parties married in Egypt in 1971, immigrated to the United States in 1985, and divorced in January 1992. The wife suffers from a permanent disabil…

The full statement of facts, procedural history, and disposition for this case are member content.

Join FLexlaw to unlock all legal intelligence

© FLexlaw, Inc. — AI-generated enrichments are proprietary. All rights reserved.


Opinion of the Court
ALTENBERND, Judge.

ALTENBERND, Judge.

Samya L. Mekhaiel, the former wife, appeals an order that modifies the final judgment of dissolution by reducing her permanent alimony. We reverse because Riad E. Messiha, the former husband, did not plead or establish a permanent change in the wife’s economic circumstances. See Cowie v. Cowie, 564 So. 2d 533 (Fla. 2d DCA 1990).

The parties were married in Egypt in 1971. They immigrated to the United States in 1985 and later became United States citizens. They have two children, the younger of whom is a minor. The wife suffers from a permanent disability and, apparently, is unable to work. The husband was trained as an engineer in Egypt and works as a nurse in this country. His gross income does not exceed $25,000. The marital assets at the time of the divorce in January 1992 were not extensive, and were probably exceeded by the marital debt.

The record reveals that the wife was considering a move to Egypt at the time of the final hearing. The trial court expressed its frustration at that hearing because the parties had not established the wife’s monetary needs if she moved to Egypt. The final judgment awarded the wife a partial interest in an apartment in Alexandria, Egypt, and permanent monthly alimony of $350. The trial court based its modest award of permanent alimony more on the husband’s limited ability to pay than upon the disabled wife’s actual needs.

The trial court also awarded primary residential custody of the minor child to the husband. Because the child allegedly remained with the wife after entry of the final judgment, the wife filed a petition for modification only a few months after the entry of the final judgment. The husband answered and filed his own request for modification, alleging that the former wife had received an unanticipated inheritance following the entry of the final judgment.

The trial court held a hearing on the petition in February 1993. By that time, the minor child was living with the husband; thus, the wife abandoned her petition for modification. The wife unsuccessfully sought a continuance of the proceedings because she had recently moved to Egypt and could not attend the hearing.

Although the husband’s pleading requested a modification only because of the wife’s inheritance, his testimony at the hearing emphasized the fact that the wife was currently living in Egypt and that the cost of living was much lower there. The husband’s testimony concerning the inheritance was speculative and based on hearsay. The trial court decided to reduce the wife’s alimony from $350 to $150 because of her move to Egypt, not because of her inheritance.

First, we are troubled by the trial court’s decision to reduce the wife’s alimony for reasons not alleged in the husband’s petition for modification. See Cortina v. Cortina, 98 So. 2d 334 (Fla.1957); Brady v. Jones, 491 So. 2d 1272 (Fla. 2d DCA 1986). The wife had no notice that these issues would be litigated in her absence.

Even if her move to Egypt had been alleged as a basis for modification, the husband’s testimony did not establish that the move was permanent.1 Because of the husband’s decision to proceed with the hearing over the wife’s written protest, the record is devoid of the wife’s testimony. In the absence of that testimony, this record does not otherwise establish a permanent unanticipated change.

Reversed and remanded.

DANAHY, A.C.J., and LAZZARA, J., concur. . At oral argument, the parties represented that the wife is currently living in Florida. We do not rely on this non-record information. Instead, our decision is based exclusively on the husband's failure to prove that the wife planned to permanently move to Egypt.


Cases With Similar Vibessemantic neighbors from the corpus


Citator

Authorities Cited

Full citator, related cases, and AI research tools

Open in FLexlaw