JANET WEISER, APPELLANT,
v.
ROBERT WEISER, APPELLEE
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Former wife appealed a trial court's modification of alimony and child support. The appellate court affirmed the modification of child support but reversed the elimination of permanent periodic alimony and suspension of rehabilitative alimony, finding the trial court failed to make sufficient findings regarding the husband's ability to pay and the wife's need for continued support.
The court affirmed the child support modification but reversed the elimination of permanent periodic alimony and the suspension of rehabilitative alimony. The trial court's modifications were improper because it failed to find that the husband's inability to pay was permanent or that he was unable to pay any alimony, and it failed to clearly find either that the husband lacked ability to pay the rehabilitative alimony or that the wife no longer needed such support.
[1] A modification of alimony requires a finding that the payor spouse is unable to pay the ordered amount, and that this inability is permanent.
[2] A trial court must clearly find a material change in circumstances to modify or terminate rehabilitative alimony.
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Join FLexlaw to unlock all legal intelligence“The trial court failed to find that the husband's inability to pay the amount ordered in the original decree was "permanent" or that the husband was unable to pay any amount of alimony.”
Establishes the standard for modification of permanent periodic alimony
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Join FLexlaw to unlock all legal intelligenceThe parties were former spouses with existing orders for permanent periodic alimony and a six-year rehabilitative alimony award. The former husband pe…
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STEVENSON, Judge.
This is an appeal by the former wife of a final judgment and amended final judgment granting in part the former husband’s petition for modification of alimony and child support. We affirm the modification of child support but reverse the modification of alimony.
We vacate that portion of the modification order relieving the former husband of any obligation to pay the previously ordered award of permanent periodic alimony. The trial court failed to find that the husband’s inability to pay the amount ordered in the original decree was “permanent” or that the husband was unable to pay any amount of alimony. See Pimm v. Pimm, 601 So. 2d 534 (Fla.1992); McManus v. McManus, 638 So. 2d 1051 (Fla. 2d DCA 1994). In addition, we reverse that portion of the modification order which terminates or suspends the former wife’s six year rehabilitative alimony award. The trial court failed to clearly find that, due to a material change in circum stances since the original decree, either (1) the former husband lacked the ability to pay that amount or (2) the former wife no longer needed the benefit of rehabilitative alimony, making the original rehabilitation plan obsolete. Cf. Vaccato v. Pustizzi, 648 So. 2d 1206 (Fla. 4th DCA 1995) (en banc) (rehabilitative alimony does not automatically terminate upon remarriage; rather, remarriage should be but one factor from which the trial court decides whether there has been a material change in circumstances warranting termination).
The former wife further argues that the trial court erred in suspending her rehabilitative alimony in midstream, based on his finding that she had not actually sought any education, training, or rehabilitation to bring her back into the work force. We decline to address whether this finding alone would be sufficient to terminate or suspend an award of rehabilitative alimony since we cannot determine from the final order whether the trial court suspended the award for that reason, the former husband’s inability to pay, or the former wife’s lack of need.
We have examined the other issues raised by appellant and find no error. Accordingly, we vacate the modification award as to the issues of permanent periodic and rehabilitative alimony. We remand this cause to the trial court so that a new evidentiary hearing may be held, and final judgment entered concerning the modification of the former wife’s permanent periodic and rehabilitative alimony awards.
AFFIRMED IN PART; REVERSED IN PART AND REMANDED.
POLEN, J., concurs.
WARNER, J., concurs specially without opinion.
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Concepcion Suarez v. Sanchez, 43 So. 3d 118 (Fla. 3d DCA 2010)…er able to pay any amount of alimony or that the recipient is able to support himself or herself through his or her own efforts and resources.” McManus v. McManus, 638 So. 2d 1051, 1052 (Fla. 2d DCA 1994) (emphasis added); see also Weiser v. Weiser, 657 So. 2d 1276, 1276 (Fla. 4th DCA 1995) (vacating modification order relieving former spouse of obligation to pay permanent alimony where trial court did not find that former spouse “was unable to pay any amount of alimony”). In addition, the party seeking the mo…
Authorities Cited
- Pimm v. Pimm, 601 So. 2d 534 (Fla. 1992)
- Woodall v. State, 638 So. 2d 1051 (Fla. 5th DCA 1994)
- McMANUS v. McMANUS, 638 So. 2d 1051 (Fla. 2d DCA 1994)
- Vaccato v. Pustizzi, 648 So. 2d 1206 (Fla. 4th DCA 1995)