DANNIE ANTHONY AUSTIN, APPELLANT,
v.
LILLIAM M. FERNANDEZ F/K/A LILLIAM M. AUSTIN, APPELLEE
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A former husband sought temporary reduction of alimony and child support obligations after involuntary job loss reduced his income from $200,000 to $12,000 annually. The trial court denied the petition and ordered him to deplete his assets to maintain full alimony payments. The appellate court reversed, holding that involuntary income loss constitutes sufficient change in circumstances to warrant temporary alimony reduction.
An involuntary loss of executive income is sufficient change in circumstance to warrant temporary reduction in alimony payments when the obligor acts in good faith to restore his income and is not deliberately avoiding his alimony obligation. The trial court erred in ordering the obligor to deplete his assets to maintain full alimony payments rather than granting temporary relief.
[1] An involuntary loss of income constitutes a sufficient change in circumstances to warrant a temporary reduction in alimony payments.
[2] A court may grant a temporary reduction or suspension in alimony when the obligor has suffered a reduction in income without deliberately seeking to avoid payment and is…
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Join FLexlaw to unlock all legal intelligence“We find that Austin's involuntary loss of his executive's income is sufficient change in circumstance to warrant a temporary reduction in alimony payments.”
Establishes the core holding that involuntary job loss qualifies as sufficient change in circumstances for alimony modification.
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Join FLexlaw to unlock all legal intelligenceIn 2002, the parties executed a mediated settlement agreement when Austin earned approximately $200,000 yearly as a vice president at American Express…
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FLETCHER, Judge.
Dannie Anthony Austin, the former husband, seeks to reverse an order denying his petition to temporarily reduce alimony and child support. We reverse and remand for rehearing.
When the parties entered into a mediated settlement agreement in 2002, Austin’s yearly income as a vice president of American Express was approximately $200,000, and the former wife’s imputed yearly income was about $16,000. Austin agreed to pay to the former wife $4,900 per month in permanent periodic alimony and $100 per month toward child support (one child lived with Austin, two with Lilliam Fernandez, the former wife).
In 2003, Austin filed a supplemental petition to terminate or modify alimony, and to modify child support. Since the first settlement agreement, Austin had been terminated from his job and now earns approximately $12,000 yearly, although he is optimistic about his future earning potential. He has since remarried and has another child.
The trial court found that Austin’s net worth, which included his house, pension plan and certain liquid assets, had increased, while the former wife’s net worth had decreased.
The trial court denied Austin’s petition to modify or terminate alimony and ordered him to pay $28,000 in retroactive support, and to continue to pay $4,900 per month in permanent periodic alimony, thus forcing him to spend down his current assets. Specifically, the trial court’s order stated, “The court finds that the Former Husband, by utilizing his assets, has the ability to continue to pay $4,900.00 in permanent periodic alimony.... [B]y depleting his assets at the rate of $4,000.00 per month and if his net monthly income remains at $4,000.00 he should be required to deplete his assets to pay the alimony for 25 months.” [R.88] This is error.
We find that Austin’s involuntary loss of his executive’s income is sufficient change in circumstance to warrant a temporary reduction in alimony payments. See, e.g., Hackney v. Hackney, 560 So. 2d 423 (Fla. 4th DCA 1990)(husband’s loss of executive position and current unemployment constituted adequate grounds for modification); Haas v. Haas, 552 So. 2d 252 (Fla. 4th DCA 1989)(surgeon husband who lost operating privileges due to alcoholism, thereby causing reduction in income, constituted sufficient change of circumstances to warrant reduction of alimony).
There is no evidence in the record that Austin is deliberately seeking to avoid paying alimony; on the contrary, he testified to his diligent search for comparable employment. See Kinne v. Kinne, 599 So. 2d 191 (Fla. 2d DCA 1992)(under the “good faith test,” a court will grant a temporary reduction or suspension in alimony when the obligor has suffered a reduction in income without deliberately seeking to avoid paying alimony and is acting in good faith to return his income to its previous level); Whetstone v. Whetstone, 710 So. 2d 749, 750 (Fla. 4th DCA 1998)(The “good faith test” has been applied to allow for temporary relief from alimony based on a temporary change in circumstances.).
Austin is entitled to a temporary downward modification in his monthly alimony obligation, sufficient to allow him to retain his assets and get back on his financial feet. When his income increases, the former wife may petition for an upward modification in permanent alimony. We therefore reverse the order on appeal and remand the cause to the trial court with directions to further consider appellant’s petition for modification of permanent alimony.
Reversed and remanded.
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Galligar v. Terrie Galligar, 77 So. 3d 808 (Fla. 1st DCA 2011)…he amount awarded). Further, -while the trial court may properly consider the former husband’s assets in determining his ability to pay, the court cannot require the former husband to deplete assets to make alimony payments. See Austin v. Fernandez, 898 So. 2d 118, 119 (Fla. 3d DCA 2005) (reversing where depletion of assets was required for former husband to make alimony payments after involuntary loss of executive income). Here, the trial court found that the former husband had savings which he used to pay h…
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Beans v. Beans, 407 So. 3d 483 (Fla. 1st DCA 2025)
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WIX v. WIX, 159 So. 3d 312 (Fla. 2d DCA 2015)…that the former husband should be required to pay the alimony arrearages from the 401k account, but the magistrate rejected that argument. The magistrate, citing Galligar v. Galligar, 77 So. 3d 808, 812 (Fla. 1st DCA 2011), and Austin v. Fernandez, 898 So. 2d 118, 119 (Fla. 3d DCA 2005), found that while the former husband’s assets could be considered in determining his ability to pay, “the court cannot require the former husband to deplete assets to make alimony payments.” The magistrate contrasted the case…
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Kinne v. Kinne, 599 So. 2d 191 (Fla. 2d DCA 1992)
- Pamella Haas v. Haas, 552 So. 2d 252 (Fla. 4th DCA 1989)
- Hackney v. Hackney, 560 So. 2d 423 (Fla. 4th DCA 1990)
- Whetstone v. Whetstone, 710 So. 2d 749 (Fla. 4th DCA 1998)
- Dannie Anthony Austin v. Liliam M. Austin, 785 So. 2d 528 (Fla. 3d DCA 2001)