CATHY LINN O'BRIEN

v.

GARY PATRICK O'BRIEN

IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FIFTH DISTRICT

NOT FINAL UNTIL TIME EXPIRES TO

FILE MOTION FOR REHEARING AND

DISPOSITION THEREOF IF FILED

CATHY LINN O’BRIEN,

Appellant,

v. Case No. 5D21-892 LT Case No. 2008-DR-0878

GARY PATRICK O’BRIEN,

Appellee. ________________________________/

Opinion filed September², 2022

Appeal from the Circuit Court for St. Johns County, Christopher S. Ferebee, Judge.

Nancy C. Harrison, Danielle M. Manos, and Paul M. Eakin, of Nancy

C. Harrison, Esq., P.L., Atlantic

Beach, for Appellant.

Michael J. Korn, of Korn & Zehmer, P.A., Jacksonville, for Appellee.

LAMBERT, C.J.

Cathy Linn O’Brien (“Former Wife”) appeals the final order entered by the trial court after trial granting Gary Patrick O’Brien’s (“Former Husband”)

BACKGROUND—

The parties’ marriage was dissolved in July 2008. The final judgment incorporated their Marital Settlement Agreement (“MSA”), which provided, in pertinent part: ALIMONY: The Husband shall pay to the Wife the sum of Three Thousand Dollars ($3,000.00) per month as and for permanent alimony commencing June 1, 2008 and continuing on the first day of each month thereafter until the Husband or Wife dies, the Wife remarries or upon the Husband reaching the age of 65 whichever shall first occur. Alimony shall be modifiable in accordance with Florida Statutes, except that an increase in the Wife’s income shall not be considered a substantial change of circumstances permitting a modification.

Former Husband paid his monthly alimony obligation through the January 1, 2016 payment. He lost his job later that month and made no

1 We find it unnecessary to detail Former Wife’s unsuccessful arguments.

In its final order, the trial court found that Former Husband had established a substantial, uncontemplated, and material change in his circumstances since the final judgment that was sufficient, involuntary, and permanent in nature. See Befanis v. Befanis, 293 So. 3d 1121, 1123 (Fla. 5th DCA 2020). The court “suspended” Former Husband’s alimony obligation, retroactive to the March 2016 filing date, “until his ability to pay alimony is restored.”² The court also denied Former Wife’s motion for

2 We note that Former Husband turned sixty-five on January 13, 2022, during the course of this appeal. Under the terms of the parties’ MSA, from that date forward, his monthly obligation to pay alimony ended. Accordingly, while the trial court’s order retroactively “suspended” Former Husband’s alimony payment until his ability to pay alimony was “restored,” because Former Husband is now sixty-five years of age, the practical result of the

Following an unsuccessful motion for rehearing, Former Wife timely brought this appeal. As previously indicated, we find merit in two of her arguments; and, for the reasons discussed below, we reverse on these issues. The final order is otherwise affirmed.

PRE-PETITION ALIMONY ARREARAGES—

Former Wife argues that the trial court erred in failing to award her $6,000 in alimony arrearages that accrued in February and March 2016 before Former Husband filed his initial supplemental petition for modification. We agree.

“A trial court has the discretion to modify alimony effective as of the date of the petition for modification or subsequent thereto, but it cannot modify alimony that was due prior to the filing of the petition.” Ray v. Ray, 707 So. 2d 358, 360 (Fla. 2d DCA 1998) (citing McArthur v. McArthur, 106 So. 2d 73 (Fla. 1958) (additional citations omitted)). Former Wife’s right to the $6,000 owed to her in pre-petition alimony became vested when Former

order is that Former Husband’s monthly alimony obligation to Former Wife, beginning with the April 1, 2016 payment, was essentially terminated.

Additionally, Former Wife is correct that she is entitled to prejudgment interest on the $6,000 arrearages, with the interest accruing from the date that each $3,000 installment was due (February 1 and March 1, 2016). See Burkley v. Burkley, 911 So. 2d 262, 271 (Fla. 5th DCA 2005) (“Courts must award prejudgment interest on [child support] arrearages found to be due in the final judgment.” (emphasis added)); Gremel v. Gremel, 45 So. 3d 978, 980 (Fla. 2d DCA 2010) (applying Burkley in the alimony context and finding that an obligee was entitled to prejudgment interest on the alimony arrearage owed by the obligor (additional citation omitted)).

TRIAL COURT’S USE OF THE PARTIES’ RESPECTIVE GROSS INCOMES IN DETERMINING ALIMONY—

The trial court found that Former Husband met his burden of establishing the requisite change in his circumstances to modify his $3,000

3 Former Wife’s challenge to this finding is one of the issues that we have affirmed without discussion.

4 “[T]he standard for an appellate court’s review of a trial court’s decision to modify alimony is abuse of discretion.” Dunn v. Dunn, 277 So. 3d 1081, 1085 (Fla. 5th DCA 2019) (alteration in original) (quoting Jarrard v. Jarrard, 157 So. 3d 332, 336 (Fla. 2d DCA 2015)).

Former Wife brought this error to the trial court’s attention through a timely motion for rehearing.⁵ In her motion, Former Wife described what, in her view, the trial evidence showed to be Former Husband’s net income during the years 2016 through 2019. Significantly, her motion submitted that Former Husband’s net income during these years was either less than or, in 2019, approximately equal to hers. Under these specific circumstances, we conclude that any error committed by the trial court in utilizing the parties’ gross incomes, at least regarding the suspension of Former Husband’s alimony obligation through 2019, was harmless.

Our record, however, does not allow us to reach that same conclusion for calendar year 2020. As the trial court considered the parties’ gross incomes, and not net incomes, in also suspending Former Husband’s alimony obligation for 2020, we reverse that part of the final order and remand for the trial court to first determine the parties’ net incomes for 2020

5 Judge Ferebee, who denied the motion for rehearing, did not preside over the trial or enter the final order on appeal. The judge who presided over the trial is no longer on the bench.

In sum, we reverse the final order insofar as it (1) failed to award Former Wife the sum of $6,000, plus accrued interest, for pre-petition alimony arrearages and (2) suspended Former Husband’s monthly alimony obligation from January 1, 2020, forward; and we remand for further proceedings consistent with this opinion. We otherwise affirm the final order without additional discussion.

AFFIRMED, in part; REVERSED, in part; and REMANDED for further proceedings. WALLIS and TRAVER, JJ., concur.