Posted by Nydia Streets of Streets Law in Florida Alimony

Is it possible to modify permanent alimony to durational alimony in Florida? Florida Statute 61.14 covers modification of alimony in Florida. One recent case goes over the issue of modification of the length of alimony and whether or not this is authorized under Florida law. In the case Valby v. Valby, 4D20-459 (Fla. 4th DCA April 28, 2021), the former wife appealed an order modifying the permanent alimony she was receiving.

At the time of the parties’ divorce, the former wife had not worked for 10 years, although she continued to renew her teaching certificate. Two years after entry of the final judgment, the former wife became employed as a teacher. The former husband filed a petition for modification of alimony in part on this basis. At trial, the parties disputed whether or not the former wife’s employment was contemplated. The former wife entered evidence of written communication between the parties which referenced the former wife working. She also pointed to provisions of the parties’ marital settlement agreement which referenced her earning income. However, the former husband testified that they had discussed the former wife going back to work during the marriage, but it never happened. The trial court entered an order reducing the former wife’s monthly alimony and changing it from permanent to durational alimony. The former wife appealed, arguing the Florida Statutes did not authorize the court to modify the length of the alimony. She further argued that her employment was contemplated, and that her need was incorrectly calculated.

The appellate court considered the former wife’s argument that since durational alimony did not exist at the time her alimony was established, the court could not change her permanent alimony to durational alimony. The court disagreed, stating “In support, she relies on the session laws of the alimony statute which state that ‘amendments may not serve . . . as a basis to change amounts or duration of awards existing before July 1, 2010.’ 2010 Fla. Sess. Law Serv. Ch. 2010-199 § 2. However, the amendment to the statute was not the basis for changing the duration of the alimony award. Rather, the alimony award was modified based on a substantial change in circumstances, as permitted by statute. §§ 61.08(7), (8), 61.14(1)(a), Fla. Stat. (2017).”

Next the court considered the former wife’s argument that Florida Statute 61.14 does not authorize modification of the length of alimony. The court held “The wife next argues that section 61.14, Florida Statutes, provides the court with jurisdiction only to modify the amount of alimony and does not allow the court to modify the type of alimony originally awarded. Contrary to the wife’s contention, section 61.14 ‘empowers a court to change the nature of an award’ and modify the duration. Walker v. Walker, 80 So. 3d 1128, 1128 (Fla. 4th DCA 2012). Additionally, in Rosen v. Rosen, 696 So. 2d 697, 702 (Fla. 1997), the supreme court stated that ‘a trial judge has the authority to alter alimony from permanent to rehabilitative based, in part, on the same employability evidence that was presented in the initial 4 dissolution proceeding, together with other changed circumstances.’ It follows then that a trial court has authority to alter alimony from permanent to durational.”

Turning to the former wife’s contention that her employment was contemplated when the alimony was first established, the court disagreed, holding “Competent substantial evidence supports the trial court’s determination that the wife’s return to full-time employment as a teacher was not contemplated at the time of the marital settlement agreement and final judgment. It was undisputed that the wife was not employed when the parties entered into the marital settlement agreement. The wife had not worked since the second child was born, which was approximately ten years before entry of the marital settlement agreement. Additionally, the wife did not return to work as a full-time teacher until nearly three years after the marital settlement agreement. Further, the marital settlement agreement was devoid of any language requiring the wife to obtain fulltime employment as a teacher.”

Finally, the court did find in the former wife’s favor on the issue of calculation of her need for alimony. Specifically, the court found that there were insufficient findings in recalculating her need. The court held, however, as to attorney’s fees she included as a debt: “We find the trial court did not err in excluding $80,000 in debt the wife accumulated ‘as a result of this proceeding.’ Attorney’s fees and costs are recoverable separately from alimony.” The case was remanded for the trial court to reconsider the former wife’s monthly expenses in arriving at a modified alimony amount.

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