PERRY R. MANSFIELD, APPELLANT,
v.
JOSEPHINE MANSFIELD, APPELLEE
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Perry Mansfield appealed an order modifying alimony upward by $1,000 per year following his retirement. The court affirmed the modification, holding that the husband's demonstrated ability to earn additional income through temporary employment constituted a change in circumstances justifying the increase despite his subsequent resignation.
The court affirmed the modification, holding that even though the husband's additional employment was temporary and he subsequently resigned, his demonstrated ability to earn additional income showed a change in circumstances sufficient to justify the modest $1,000 annual increase in alimony.
[1] A former spouse seeking modification of alimony must establish a change of circumstances.
[2] A former spouse's increased earning capacity, even if temporary, can constitute a change of circumstances justifying alimony modification.
Previewing 2 of 3 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“the record before us reveals that the husband, although retired, took additional employment at which he earned some $10,000. In our view, this fact alone shows that the appellant had a greater earning capacity than that indicated at the time of his retirement.”
Establishes that temporary employment demonstrates earning capacity relevant to alimony modification even after retirement.
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Join FLexlaw to unlock all legal intelligenceThe parties were divorced with alimony set by final judgment that included a provision for modification upon the husband's retirement. Approximately o…
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PER CURIAM.
The question presented on this interlocutory appeal is whether the petitioner and former wife established a change of circumstances such as to entitle her to a modification of the amount of alimony. See Rogers v. Rogers, Fla.App. 1969, 229 So. 2d 618; Tewksbury v. Tewksbury, Fla.App. 1965, 178 So. 2d 346; Howell v. Howell, Fla.App.1974, 301 So. 2d 781. The alimony provided in the final judgment had been set by the court after final judgment in accordance with a provision for modification upon appellant-husband’s retirement. Approximately a little over one year later, a petition to modify the order was filed by the wife. An order was entered after extensive hearings before the court. The husband argues that inasmuch as the wife showed no increased need and the husband was in fact of a lesser net worth at the time of the hearings on the petition that the court abused its discretion in increasing the wife’s alimony $1,000 per year.
The record before us reveals that the husband, although retired, took additional employment at which he earned some $10,000. In our view, this fact alone shows that the appellant had a greater earning capacity than that indicated at the time of his retirement. Appellant points out that the position was terminated by his resignation after one year and, therefore, should not be considered permanent. While the increase in earnings above that anticipated at the time of the entry of the order of modification after the husband retired may be temporary, it does indicate a change in circumstances to the extent that it shows the former husband had an ability to earn if he so desired. Under these circumstances, the small amount of increase is justified. See King v. King, Fla.App.1973, 271 So. 2d 159.
Affirmed.
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Desilets v. Desilets, 377 So. 2d 761 (Fla. 2d DCA 1979)…al to his capabilities, and on that basis enter an award of alimony as if the husband were in fact earning the income so imputed. Fried v. Fried, 375 So. 2d 46 (DCA 1979); Bradley v. Bradley, 347 So. 2d 789 (Fla.3d DCA 1977); Mansfield v. Mansfield, 309 So. 2d 629 (Fla.3d DCA 1975); Foster v. Foster, 537 S.W. 2d 833 (Mo.Ct.App.1976); Faye v. Faye, 131 Misc. 388, 226 N.Y.S. 729 (Sup.Ct.1928); Annot., 18 ALR2d 10 at § 15 (1951). In such a situation, an award of alimony entirely exhausting the husband’s actual i…
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Ward v. Espy E. Ward, 502 So. 2d 477 (Fla. 3d DCA 1987)…he amount of support he should be required to give to his wife, Desilets v. Desilets, 377 So. 2d 761 (Fla. 2d DCA 1979); Fried v. Fried, 375 So. 2d 46 (Fla. 2d DCA 1979); Bradley v. Bradley, 347 So. 2d 789 (Fla. 3d DCA 1977); Mansfield v. Mansfield, 309 So. 2d 629 (Fla. 3d DCA 1975), even if the result were to be to require the husband to pay an amount of alimony entirely exhausting his actual income. Bradley v. Bradley, 347 So. 2d 789. The mere “use of the word ‘retirement’ to describe [the former husband’s]…
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Pimm v. Pimm, 568 So. 2d 1299 (Fla. 2d DCA 1990)…r support payments based on the voluntary diminution of income. Desilets v. Desilets, 377 So. 2d 761 (Fla. 2d DCA 1979); Fried v. Fried, 375 So. 2d 46 (Fla. 2d DCA 1979); Bradley v. Bradley, 347 So. 2d 789 (Fla. 3d DCA 1977); Mansfield v. Mansfield, 309 So. 2d 629 (Fla. 3d DCA 1975). We cannot conclude, however, that a “voluntary” retirement under normal circumstances or at a normal or expected retirement age should be equated with such a voluntary diminution of income. The record discloses that the ex-husba…
Authorities Cited
- King v. King, 271 So. 2d 159 (Fla. 1st DCA 1973)
- Jolly H. Rogers v. Rogers, 229 So. 2d 618 (Fla. 2d DCA 1969)
- Howell v. Howell, 301 So. 2d 781 (Fla. 2d DCA 1974)
- Howell v. Howell, 301 So. 2d 781 (Fla. 2d DCA 1974)
- Baird Russell Tewksbury, Jr. v. Tewksbury, 178 So. 2d 346 (Fla. 2d DCA 1965)