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GROUNDS FOR MODIFICATION
In addition to considerations of notice and due process in pleading modification, in most cases, a petition to modify must show three fundamental prerequisites: 1) a substantial change in circumstances, see Fla. Stat.§ 61.14(1) (2012); Chastain v. Chastain, 73 So. 2d 66 (Fla. 1954); 2) that the change was not contemplated at the time of the final judgment of dissolution, see Withers v. Withers, 390 So. 2d 453 (Fla. 2d DCA 1980),rev.den., 399 So. 2d 1147 (Fla. 1981); Dykes v. Dykes, 712 So. 2d 1189 (Fla. 1st DCA 1998); and (3) that the change is sufficient, material, involuntary, and permanent in nature, see Hanskat v. Hanskat, 716 So. 2d 347 (Fla. 1st DCA 1998);Whetstone v. Whetstone, 710 So. 2d 749 (Fla. 4th DCA 1998); and Perez v. Perez, 973 So. 2d 1227 (Fla. 4th DCA 2008).
Further, the change in circumstances alleged must have occurred subsequent to the last judgment or order awarding alimony. See Johnson v. Johnson, 537 So. 2d 637 (Fla. 2d DCA 1998);Zimerle v. Zimerle, 650 So. 2d 155 (Fla. 1st DCA 1995).
SUBSTANTIAL CHANGE IN CIRCUMSTANCES
An alimony award can only be modified upon a clear showing that there has been a substantial change in the financial circumstances of either party occurring after the entry of the order awarding alimony. §61.14,Fla. Stat.; Cleary v. Cleary, 743 So. 2d 1163 (Fla. 5th DCA 1999). The change in circumstances must be alleged to have occurred subsequent to the last judgment or order awarding alimony. Johnson v. Johnson, 537 So. 2d 637 (Fla. 2d DCA 1998); Zimerle v. Zimerle, 650 So. 2d 155 (Fla. 1st DCA 1995).
An anticipated change that occurs after the final judgment, such as an inheritance, may be considered a substantial change in circumstances. In the case of Selembo v. Selembo, 591 So. 2d 1112 (Fla. 2d DCA 1992), at the time of the final hearing, the wife was a co-tenant of funds in joint accounts with her mother, and she testified that she was not entitled to the funds during the life of her mother, but would inherit them upon the mother’s demise. Therefore, it was an unanticipated and substantial change of circumstances when the former wife actually received her inheritance post-dissolution, so that termination of alimony was justified. See also Brock v. Brock,690 So. 2d 737 (Fla. 5th DCA 1997)(actual receipt of expected inheritance is a substantial change in circumstances).
A substantial change occurred where the former wife sold the marital home, and used the proceeds to make a down payment on a home with a fifteen year mortgage. See Wolfe v. Wolfe, 953 So. 2d 632 (Fla. 4th DCA 2007). While the former wife’s mortgage payment remained the same, the use of her alimony award to pay down a mortgage over a fifteen year period rather than a longer period was viewed as a form of savings, and was considered inappropriate by the court. Id.
In Kamenski v. Kamenski, 15 So. 3d 842 (Fla. 2d DCA 2009), after the parties divorced, former husband filed a petition to modify that sought a reduction in his alimony obligation based on former wife’s increased income. Evidence was insufficient to support the trial court's determination that wife's circumstances had not changed and she continued to be employed within the same line of work, in post-divorce proceeding to modify alimony. At the time of the divorce, wife was an administrative assistant at a property management firm. At the time former husband filed his petition to modify, wife was employed as a property manager and was earning more than double her previous income.
John G. DeGirolamo, Esq.
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