WILLIAM ROBERT FERGUSON, JR., APPELLANT,
v.
RUTH MARIE FERGUSON, APPELLEE
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William Ferguson appeals the dismissal of his petition to modify alimony without an evidentiary hearing. The court affirmed the dismissal, holding that Ferguson failed to allege a substantial change in circumstances since his previous unsuccessful modification petition in 2004.
The court affirmed the dismissal, holding that an evidentiary hearing is not required when allegations and supporting documents fail to demonstrate a colorable entitlement to relief. Ferguson's petition was largely an attempt to reargue issues decided in the unappealed May 2004 order and thus failed to show the requisite substantial change in circumstances.
[1] A petition to modify an alimony award must allege a substantial change in circumstances that occurred since the entry of the prior award or modification.
[2] A trial court is not required to conduct an evidentiary hearing on a petition for modification if the allegations and supporting documents fail to establish a colorable e…
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Join FLexlaw to unlock all legal intelligence“To modify an award of alimony, the petitioner must show a substantial change in circumstances, not contemplated at the time of the divorce judgment, which is sufficient, material, involuntary, and permanent in nature.”
Establishes the legal standard for alimony modification
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Join FLexlaw to unlock all legal intelligenceFerguson and his wife settled their divorce in September 2002, with Ferguson required to pay $900/month permanent alimony. In September 2003, Ferguson…
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LAWSON, J.
William Robert Ferguson, Jr., appeals an order summarily dismissing his petition to modify the amount of alimony awarded to his former wife, Ruth Marie Ferguson. We affirm.
The former husband initially filed a petition seeking to dissolve his marriage to the former wife on March 22, 2002. The court ordered the parties to attend mediation, which resulted in a settlement agreement that, inter alia, required the former husband to pay permanent periodic alimony of $900 per month. On September 2, 2002, the court entered a final judgment of dissolution incorporating the settlement agreement in its entirety.
On September 8, 2003, the former husband filed a supplemental petition for modification,1 alleging that he had lost his previous job and had obtained a new position at a substantially reduced salary. He alleged that this change in circumstance was substantial and permanent, and asked the court to award him child support and to reduce or eliminate his alimony obligation. After conducting a full evidentiary hearing, the trial court denied the former husband’s request to modify his alimony obligation, but ordered the former wife to begin paying $472.36 per month in child support until March 1, 2005. The former husband did not appeal this order, entered May 10, 2004.
However, on February 18, 2005, the former husband filed another petition to modify the alimony award, again alleging a substantial change in circumstances rendering him unable to meet his alimony obligation. The former wife filed a motion to dismiss, asserting that the petition was frivolous because it failed to identify a change that had occurred since entry of the court’s May 10, 2004 order. Without conducting an evidentiary hearing, the court granted the motion to dismiss and denied the petition. The issue on appeal is whether the trial court erred in dismissing the former husband’s petition for modification of alimony without conducting an evidentiary hearing.
To modify an award of alimony, the petitioner must show a substantial change in circumstances, not contemplated at the time of the divorce judgment, which is sufficient, material, involuntary, and permanent in nature. E.g., Douglas v. Douglas, 795 So. 2d 99 (Fla. 5th DCA 2001). Such modification can only be based on changed conditions occurring since entry of the prior award or modification thereto. E.g., Hosford v. Hosford, 362 So. 2d 973 (Fla. 1st DCA 1978); § 61.14, Fla. Stat. (2004). Where the alimony is set by the parties’ agreement, the party who seeks a change carries a heavier burden. E.g., Pimm v. Pimm, 601 So. 2d 534, 537 (Fla.1992). An evidentiary hearing is not required on a motion where the allegations and supporting documents fail to allege a colorable entitlement to relief. See, e.g., Smith v. Smith, 903 So. 2d 1044 (Fla. 5th DCA 2005); Smith v. Cuban American Nat. Found., 657 So. 2d 86 (Fla. 3d DCA 1995). The court’s decision to modify alimony is reviewed on appeal for abuse of discretion. E.g., Canakaris v. Canakaris, 382 So. 2d 1197 (Fla.1980).
We have reviewed the record and agree that the former husband’s February 18, 2005 petition failed to demonstrate a substantial change in circumstances. Rather, it appears that the petition is largely an attempt to reargue the issues decided by the unappealed May 10, 2004, order. As a result, no evidentiary hearing was required, and the trial court acted well within his discretion in denying the petition without conducting an evidentiary hearing.
AFFIRMED.
ORFINGER and TORPY, JJ., concur. . He did not file an initial petition to modify.
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Citator
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King v. King, 82 So. 3d 1124 (Fla. 2d DCA 2012)…permanent in nature. Pimm v. Pimm, 601 So. 2d 534, 536 (Fla.1992) (citations omitted). Thus a modification of alimony “can only be based on changed conditions occurring since entry of the prior award or modification thereto.” Ferguson v. Ferguson, 921 So. 2d 796, 797 (Fla. 5th DCA 2006) (citing Hosford v. Hosford, 362 So. 2d 973 (Fla. 1st DCA 1978) and § 61.14, Fla. Stat. (2004)). Reading subsection (l)(b) of the statute in pari materia with subsection (l)(a) compels the conclusion that a supportive relatio…
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Trisotto v. Trisotto, 966 So. 2d 986 (Fla. 5th DCA 2007)…s to why Mr. Trisotto’s income was reduced was in conflict, there is competent, substantial evidence to support the trial court’s conclusion that Mr. Trisotto’s income reduction was neither permanent nor involuntary. See, e.g., Ferguson v. Ferguson, 921 So. 2d 796, 797 (Fla. 5th DCA 2006) (reiterating that to modify an award of alimony, petitioner must show substantial change in circumstances, not contemplated at the time of the divorce judgment, which is sufficient, material, involuntary, and permanent in na…
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Hedstrom v. Hedstrom, 123 So. 3d 150 (Fla. 5th DCA 2013)…did not grant a greater reduction was because it overstated his 2010 and 2011 income. Generally, a party seeking modification of alimony obligations must prove a substantial change in circumstances that is permanent in nature. Ferguson v. Ferguson, 921 So. 2d 796, 797 (Fla. 5th DCA 2006). However, a temporary modification is appropriate where the court determines that the payor has suffered a reduction in income through no fault of his own and is acting in good faith to return his income to its previous leve…
Previewing 3 of 5 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Canakaris v. Canakaris, 382 So. 2d 1197 (Fla. 1980)
- Pimm v. Pimm, 601 So. 2d 534 (Fla. 1992)
- Smith v. Smith, 903 So. 2d 1044 (Fla. 5th DCA 2005)
- Smith v. Cuban Am. Nat'l Found., 657 So. 2d 86 (Fla. 3d DCA 1995)
- Douglas v. Douglas, 795 So. 2d 99 (Fla. 5th DCA 2001)
- Nova v. State, 362 So. 2d 973 (Fla. 3d DCA 1978)
- Hosford v. Hosford, 362 So. 2d 973 (Fla. 1st DCA 1978)