JOAN C. LOSS, APPELLANT,
v.
MICHAEL R. LOSS, APPELLEE

Fla. 4th DCA | 1998-06-24
No. 97-0343
WARNER and FARMER, JJ., concur.
714 So. 2d 1093 Florida District Court of Appeal, Fourth District (1998) Caution
Cited by 6 cases

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Synopsis

In this follow-up appeal in a divorce case, the former wife challenges the trial court's financial determinations made pursuant to this Court's prior reversal and remand. The Court affirms the judgment as modified, rejecting most of the appellant's arguments but correcting the commencement date of an automatic alimony reduction to align with when her mortgage obligation ends.


Holding

The Court holds that: (1) the motion to compel disclosure was not properly ruled upon and therefore not reviewable, and the appellee's failure to produce tax returns at trial was not prejudicial error where the appellant made no objection; (2) the Court lacks jurisdiction to review orders entered after the notice of appeal was filed; and (3) while automatic alimony reductions are generally improper, they are permissible where evidence supports a finding that the receiving spouse's financial position will in fact change, as here where the mortgage obligation will end in September 1999, requiring modification to commence the reduction in October 1999 instead of August 1999.


Headnotes

[1] An appellate court lacks jurisdiction to review orders entered after the notice of appeal has been filed.

[2] A party's failure to obtain a ruling on a motion to compel discovery precludes appellate review of the discovery issue.

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Key Quotes

“Generally, it is error to provide for an automatic, future change or termination of alimony based upon the anticipated occurrence of a future event.”

Establishes the general rule against automatic alimony modifications

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Facts & Procedural History

Joan Loss and Michael Loss were divorced. This is the second appeal in the case. Six years earlier, this Court reversed the economic provisions of the…

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Opinion of the Court
OWEN, WILLIAM C., Jr., Senior Judge.

OWEN, WILLIAM C., Jr., Senior Judge.

In the prior appearance of this case, Loss v. Loss, 608 So. 2d 39 (Fla. 4th DCA 1992), we reversed the economic provisions of the final judgment and remanded for further consideration of those issues.

Pursuant to the mandate, the trial court entered a new; judgment from which the former wife, acting as her own attorney, brings this appeal. She presents five issues in a somewhat unconventional brief. Among other things, she asks that we reinstate the original judgment overturned by our decision of six years ago, or in the alternative that we at least increase the monetary benefits awarded in the new judg ment. She concludes, however, that in no event does she want the judgment reversed and remanded once again “as a total reversal [and remand] will only make matters worse.” We cannot, of course, re-instate the original judgment. On the issues raised in the brief, discussed below, we modify the judgment in an insignificant respect and, as modified, affirm.

Appellant’s point I is that the trial court abused its discretion by not compelling full financial disclosure from appellee and in determining financial matters without full financial disclosure. Appellee failed to serve income tax returns for 1994 and 1995 as required by Fla. Fam. L.R.P., Rule 12.285(d)(4). Although appellant filed a motion to compel production, the record does not show an order was entered on the motion. In the absence of a ruling on this motion there is nothing to review. See Fleming v. Peoples First Fin. Sav. & Loan Ass’n, 667 So. 2d 278 (Fla. 1st DCA 1995).

At trial, appellee produced general ledgers and financial reports of his P. A., but did not produce his income tax returns. Appellant not 'only made no objection to this failure to produce at trial but also made no showing that she was prejudiced by such failure. See Vaccaro v. Vaccaro, 677 So. 2d 918 (Fla. 5th DCA 1996).

Appellant’s points II, III and V arise out of orders1 entered after the filing of the notice of appeal. We do not have jurisdiction to review any of these three orders. Bove v. Ocwen Fin. Corp. -, 23 Fla. L. Weekly D564, — So. 2d - (Fla. 4th DCA Feb.25, 1998).

Appellant’s point IV is that it was error for the court to provide for an automatic future reduction of alimony beginning in August, 1999. Generally, it is error to provide for an automatic, future change or termination of alimony based upon the anticipated occurrence of a future event. See Hitt v. Hitt, 571 So. 2d 79 (Fla. 4th DCA 1990); Davidson v. Davidson, 410 So. 2d 943 (Fla. 4th DCA 1982).

However, we also recognized in Hitt that such an automatic reduction would not be improper where the evidence supports a finding that the receiving spouse’s financial position will in fact change in the future. In this case the evidence shows that appellant is due to make the final monthly payment on the mortgage encumbering the marital home2 in September, 1999. The amount by which the monthly alimony is due to be reduced is approximately equal to the amount of the monthly mortgage payment.

We hold, therefore, that the trial court did not err in providing for the reduction.

However, because the evidence shows that the final payment is due in September, 1999, the final judgment should be and hereby is modified to provide that the automatic reduction commences in October, 1999. Our holding on this point, of course, does not preclude appellant from requesting a modification in the future if some other circumstance changes.

AFFIRMED, as modified.

WARNER and FARMER, JJ., concur. . One of these orders, pertaining to Mrs. Loss' motion to have the court enforce an order requiring her former husband to transfer ownership of a certain life insurance policy, merely deferred ruling to a subsequent time and would not have been appealable in any event.

. The former marital home, along with certain other marital property, was awarded to appellant as part of the equitable distribution. The monthly payments on the mortgage encumbering the former marital home became the appellant’s responsibility.


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Cited By

  • Weiser v. Weiser, 782 So. 2d 986 (Fla. 4th DCA 2001)
    …the permanent alimony from $4,000 per month to $2,500 when the youngest child reaches the age of 18 or graduates from high school.1 The husband correctly argues the automatic reduction of permanent alimony is impermissible. He cites to Loss v. Loss, 714 So. 2d 1093, 1094 (Fla. 4th DCA 1998), where we previously held: Generally, it is error to provide for an automatic, future change or termination of alimony based upon the anticipated occurrence of a future event. See Hitt v. Hitt, 571 So. 2d 79 (Fla. 4th DCA…
  • Sola v. Sylvette Noemi Sola, 940 So. 2d 1206 (Fla. 2d DCA 2006)
    …. 2d 602, 604 (Fla. 4th DCA 2002). At the time of the final hearing, the wife no longer had the expense of the mortgage payment. Accordingly, the trial court should not have considered it in determining the wife’s need for alimony. Cf. Loss v. Loss, 714 So. 2d 1093, 1094 (Fla. 4th DCA 1998) (holding that a reduction in alimony in the amount of a monthly mortgage payment is proper where the party responsible for the monthly payment satisfies the mortgage). On remand, the trial court is directed to reduce the al…
  • Loss v. Charles D. Franken, P.A., 714 So. 2d 1097 (Fla. 4th DCA 1998)
    …PER CURIAM. In this companion ease to Loss v. Loss, 714 So. 2d 1093 (Fla. 4th DCA 1998), appellant asserts various reasons why the court erred in its order awarding attorney’s fees and a charging lien to her discharged former lawyer. We find them to be without merit and therefore affirm. This divorce litigation be…

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