Allaire v. Allaire
| Docket Number | 2D22-2804 |
| Decision Date | 15 September 2023 |
| Parties | JOHN-CHARLES ALLAIRE, Appellant, v. BARBARA SILVA ALLAIRE, Appellee. |
| Court | Florida District Court of Appeals |
Appeal from the Circuit Court for Pasco County; Joshua Riba, Judge.
John-Charles Allaire, pro se.
Jessica Chery and Russell G. Marlowe of Russell G. Marlowe PA, New Port Richey, for Appellee.
John-Charles Allaire (Former Husband) appeals the order denying his amended supplemental petition to modify alimony. We have jurisdiction. See Fla. R. App. P. 9.030(b)(1)(A). Former Husband established his entitlement to modification. Thus, we reverse.
Former Husband and Barbara Silva Allaire (Former Wife) divorced in 2016. Their marital settlement agreement (MSA) required Former Husband to pay staggered durational alimony. By February 2018, the monthly amount was $1,500.
The MSA also provided that the trial court could modify alimony based on a substantial change in circumstances. See § 61.08(7), Fla. Stat. (2016) ().
Former Husband owned an upholstery business; he upholstered dental chairs. His business had a contract with a single client, a used equipment seller. The business operated out of the client's premises.
On March 9, 2020, Governor DeSantis declared a public health emergency in Florida due to COVID-19. See Fla. Exec. Ord. No. 20-52 (Mar. 9, 2020). On March 30, 2020, he issued Executive Order Number 20-91, requiring that "all persons in Florida . . . limit their movements and personal interactions outside of their home to only those necessary to obtain or provide essential services or conduct essential activities." See FAQs for Exec. Ord. 20-91 Essential Services and Activities during Covid-19, https://www.flgov.com/wp-content/uploads/covid19 /Exec%20Order%2020-91%20FAQs.pdf (Apr. 3, 2020) ( that if a business is not an essential service, it must close its physical location to customers). Former Husband's upholstery business was not an essential service. Consequently, he ceased operations.
In April 2020, Former Husband, pro se, dashed off a supplemental petition to modify his alimony obligation. Allegedly, Former Husband's sole client stopped doing business with him. He maintained that "[t]he pandemic ha[d] forced a closure of [his] business, leaving [him] without income."
In July 2021, Former Husband, through counsel, filed an amended supplemental petition. See § 61.14(1)(a), Fla Stat. (2021). The substance of the amended petition remained the same: Former Husband could not pay his monthly alimony obligation due to the closure of his business in the wake of public health safety protocols. He reported that "[i]n order to minimize the impact of the loss and not be left without anything . . . Former Husband . . . s[old] his upholstery equipment and signed a non-compete [agreement] with his former client." The noncompete agreement prevents him from upholstering dental chairs. Former Husband described the situation as a "hostile takeover"; the client hired his employees and gave him limited time to remove his equipment or sell it to the client. And, although he could continue to reupholster other furniture, Former Husband reported that he was On cross-examination, Former Husband further indicated that while he had experience in related upholstery fields, "it certainly didn't pay the same." To scratch out a living, he "began learning the insurance adjusting business." However, his income was "significantly lower than the income he had at the time of the [divorce]."
At a June 2022 Zoom hearing, the trial court denied the amended supplemental petition. In its written order, the trial court found that "Former Husband did have a change in circumstances with his employment, there is no question about that." Further, the trial court determined that Former Husband's sale of his equipment and signing of the non-compete agreement were "reasonable." The trial court recognized that Former Husband found himself "between a rock and a hard place" when his only client stopped doing business with him.
However, the trial court reasoned that Former Husband's financial downturn was not permanent. The trial court glibly explained that Former Husband could have "used his [upholstery] skills in another capacity" because the non-compete agreement "only limited his reupholstering to dental chairs, so he could . . . use[] his skills in another capacity."
The trial court also expressed concern over the timing of the amended supplemental petition. Former Husband filed his initial petition "within a month of the Covid-related shutdowns." The trial court was perplexed that Former Husband sought relief so soon "without knowing whether this would be a permanent issue." A real conundrum; a veritable Schrodinger's cat[1] scenario.
The trial court found further that Former Husband's financial problems were foreseeable:
It was not unforeseeable that the Former Husband lost his business when he ran his business with only one client. This Court believes it is entirely foreseeable that you may lose your only source of income if you run a business the way the Former Husband has.
The trial court also explained that Former Husband's change in income was insubstantial because "he is making about the same that he made at the time he agreed to pay alimony to . . . Former Wife."
Before us, Former Husband argues that he satisfied the test for modifying his alimony obligation. See Driggers v. Driggers, 127 So.3d 762, 764 (Fla. 2d DCA 2013) ( ). He contends that the trial court misapprehended the law and misunderstood the financial affidavits. We agree.
"[T]he appellate court's standard of review of an order modifying alimony is mixed." Bauchman v Bauchman, 253 So.3d 1143, 1146 (Fla. 4th DCA 2018) (citing Jarrard v. Jarrard, 157 So.3d 332, 337 (Fla. 2d DCA 2015)). "The trial court's legal conclusions are reviewed de novo." Id. (citing Jarrard, 157 So.3d at 337-38). As for the trial court's factual findings, the appellate court reviews the record to determine if they are supported by competent, substantial evidence. See Golson v. Golson, 207 So.3d 321, 325 (Fla. 5th DCA 2016) (citing Jarrard, 157 So.3d at 337).
Befanis v. Befanis, 293 So.3d 1121, 1122-23 (Fla. 5th DCA 2020) (alteration in original).
Section 61.14(1)(a) allows a party to seek modification "[w]hen the parties enter into an agreement for payments for . . . alimony . . . in connection with a proceeding for dissolution . . . and the circumstances or the financial ability of either party changes." Specifically, "[t]o justify a modification of alimony, the moving party must establish: (1) a substantial change in circumstances; (2) that the change was not contemplated at the final judgment of dissolution; and (3) that the change is sufficient, material, permanent, and involuntary." Eisemann v. Eisemann, 5 So.3d 760, 762 (Fla. 2d DCA 2009) (quoting Antepenko v. Antepenko, 824 So.2d 214, 215 (Fla. 2d DCA 2002)). We note that Former Husband bears no heavier a burden simply because his alimony obligation was found in an MSA. See § 61.14(7) ().
The trial court found that Former Husband's income when he petitioned for modification was "about the same" as when the parties divorced. The record belies this finding. Indeed, competent and substantial evidence supports Former Husband's claim of a substantial change in income. See Nangle v. Nangle, 286 So.3d 377, 379-80 (Fla. 4th DCA 2019) .
Seemingly, the trial court misread the Former Husband's financial affidavits. Former Husband's 2015 financial affidavit reported a monthly gross base salary of $3,033. His 2022 financial affidavit shows a gross monthly income of $3,354. Unfortunately, the trial court overlooked the portion of the 2015 financial affidavit indicating that Former Husband supplemented his monthly base pay with shareholder distributions of $2,500. Thus, the 2015 financial affidavit actually reflected a gross monthly income of $5,769 and a net monthly income of $4,502.
In contrast, Former Husband's 2022 financial affidavit included no shareholder distributions. Thus, his gross monthly income totaled $3,354; his net monthly income was substantially reduced to $968.45. In similar circumstances, we have found a substantial change in circumstances. See Driggers, 127 So.3d at 763 ( ); Antepenko, 824 So.2d at 215 ("[T]he thirty- eight percent decrease shown here clearly meets the 'substantial change in circumstances' test.").
Because Former Husband's business relied on one client, the trial court...
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