PATRICIA C. TIZIANI, APPELLANT,
v.
DONALD B. TIZIANI, APPELLEE
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In this dissolution of marriage appeal, the ex-wife sought modification of the alimony provisions and recovery of unpaid alimony arrearages. The court affirmed the denial of modification for permanent alimony but reversed and remanded regarding the arrearage claim, holding that the husband's obligation to pay one-quarter of one-half his 'earnings' included all income received, not just base salary.
The court affirmed denial of modification for permanent alimony but reversed the denial of arrearage recovery, holding that under the plain language of the final judgment, the wife was entitled to one-quarter of one-half of the husband's total 'earnings'—defined as take-home income after deductions—not merely base salary, and therefore any additional net income received by the husband was subject to the original judgment.
[1] A trial court may not modify a final judgment of dissolution to award permanent periodic alimony when the original judgment provided for a fixed term of rehabilitative al…
[2] A final judgment of dissolution requiring payment of alimony based on "earnings" includes all income received by the obligor, not just base salary, after deductions.
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Join FLexlaw to unlock all legal intelligence“It is noted that no appeal was taken from the final judgment; by its terms, it is clear the wife was entitled to one-quarter of one-half of his "earnings". This was indicated in the record to be his take-home money after all deductions.”
Establishes the court's interpretation of 'earnings' to include all take-home income after deductions, not merely base salary
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceThe parties divorced in 1972 under a final judgment providing for rehabilitative alimony to the wife for three years in an amount equal to one-quarter…
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BARKDULL, Chief Judge.
By this appeal, a former wife seeks review of an order denying her modification of a final judgment of dissolution of marriage and denying her recovery of accrued arrearages in periodic rehabilitative alimony-
When the parties to this cause were divorced in 1972, the final judgment of dissolution provided for alimony and support as follows:
* * * * * *
“11. Periodic alimony is allowed as follows: In an amount equivalent to one-half of the husband’s earnings divided: (1) one-quarter to the wife for a period of three years, and after three years this alimony shall cease; (2) three-quarters of the husband’s one-half salary shall be awarded for child support. When the older child attains majority or is otherwise emancipated the child support shall be reduced by one-half, likewise with the child support for the younger child.”
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Just prior to the expiration of the three-year period provided for in the final judgment, the wife petitioned the trial court to modify same by awarding her permanent periodic alimony. She also sought to recover arrearages due her for periodic alimony, because the appellee had failed to account to her for one-quarter of one-half of his earnings during the three-year period in accordance with the final judgment. The grounds for modification for permanent periodic alimony were that the appellant was unable to validly pursue a course of gainful employment. After hearing, the trial judge denied all relief sought by the appellant.
Upon review of the record, we sustain the trial judge’s denial of modification of the final judgment which would entitle the appellant to periodic alimony. See: Lee v. Lee, 309 So. 2d 26 (Fla.2d DCA 1975); Shaw v. Shaw, 334 So. 2d 13 (Fla.1976). However, we reverse that portion of his order which denied her recovery for the alleged arrearage. The appellee took the position that he was only required to account to the wife for one-quarter of one-half of his base salary earnings. This is contrary to the terms of the final judgment of dissolution of marriage. It is noted that no appeal was taken from the final judgment; by its terms, it is clear the wife was entitled to one-quarter of one-half of his “earnings”. This was indicated in the record to be his take-home money after all deductions. The husband admitted that he earned additional sums over and above his base salary, but contended these were not covered by the final judgment. With this, we disagree. It was income that he received and that portion of it which represented additional net income to him was subject to the terms of the original final judgment.
Therefore, this cause is remanded to the trial court for further proceedings to determine the actual amount of income received by the appellee during the three-year period covered, and to award the appellant any arrearage that might appear. Reversed and remanded, with directions.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Authorities Cited
- Shaw v. Shaw, 334 So. 2d 13 (Fla. 1976)
- Ranelle M. LEE v. LEE, 309 So. 2d 26 (Fla. 2d DCA 1975)