Gardner v. Edelstein
| Decision Date | 16 April 1990 |
| Docket Number | Nos. 89-55,89-1590,s. 89-55 |
| Citation | 561 So.2d 327 |
| Parties | 15 Fla. L. Weekly D1029, 15 Fla. L. Weekly D1503 Mary Lou GARDNER, Appellant, v. Rand EDELSTEIN, Appellee. Rand EDELSTEIN, Appellant, v. Mary Lou GARDNER, Appellee. |
| Court | Florida District Court of Appeals |
Michael W. Jones, Gainesville, for Mary Lou Gardner.
Allison E. Folds of Watson, Folds, Steadham, Christmann, Brashear, Tovkach & Walker, Gainesville, for Rand Edelstein.
This case involves consolidated appeals of orders entered subsequent to a final judgment dissolving the marriage of the parties. Mary Lou Gardner, the former wife, appeals the lower court's denial of her petition for modification of the final judgment of dissolution of marriage. Rand Edelstein, the former husband, appeals a separate order awarding Gardner attorney's fees and court costs incurred during litigation of the petition for modification. We reverse both of the appealed orders.
In January 1984, the lower court entered a final judgment dissolving the parties' marriage and approving a written settlement agreement between the parties. With regard to alimony, the agreement provided that Rand Edelstein (Husband), would pay to Mary Lou Gardner (Wife),
periodic alimony of $3,000 per month beginning on the first day of the month following the entry of final judgment dissolving the marriage, and continuing on the first day of each consecutive month thereafter for a period of five years. Thereafter, beginning with the payment due on the fifth anniversary date of the first payment made by the Husband to the Wife hereunder, the Husband shall pay to the Wife periodic alimony in the amount of $1,000 per month for each consecutive month until her death or remarriage.
In February 1988, Gardner filed a petition for modification of the final judgment seeking an increase in the alimony payments. Testimony at the hearing on this petition revealed that the parties were married for approximately 24 years. Gardner had a high school education and worked primarily within the home, raising the parties' two children and tending to the family's domestic needs during the marriage, although she worked for two short periods during the marriage managing a racquetball club and doing bookkeeping for several physicians. Edelstein, on the other hand, became a successful stockbroker with Merrill Lynch during this period. During the latter years of the marriage, the family became interested in Arabian horses. Gardner's involvement and interest in raising horses grew, and the parties eventually developed and treated it as a business. Edelstein bought Gardner a truck, helped her purchase horses, and claimed the associated business expense deductions on their joint federal income tax returns. Following the breakup of the marriage, Gardner continued to work in the horse-breeding business. However, substantial changes were made to the federal income tax laws applicable to this business, and as a consequence the Arabian horse market soured and many breeders, including Gardner, were forced from the business. At the time of the final hearing, Gardner was earning $1,025 per month as a clerical employee at the Alachua County Courthouse; Edelstein had an estimated income of $188,000 in 1988.
In her petition for modification of final judgment, Gardner stated that the alimony schedule in the settlement agreement and final judgment was predicated on the parties' belief that she would become self supporting by raising her Arabian horses following the dissolution of marriage. She alleged that there had been a substantial change in her circumstances, which was permanent, unanticipated, and involuntary, in that her horse-raising ambitions had not materialized. She alleged that she was unable to support herself as contemplated by the parties at the time of entry of the final judgment, and that Edelstein could well afford to pay increased alimony payments. Gardner requested that the court increase the amount of alimony and pay her reasonable attorney's fees and court costs.
The lower court denied the petition on the grounds that Gardner had not met the heavy burden required of a party seeking modification, that there had not been a substantial change in circumstances that could not have been anticipated or expected, and that the agreement to pay alimony and award of alimony was for permanent periodic rather than rehabilitative alimony. By separate order, the court found Gardner to be in need of an award of attorney's fees and costs, found Edelstein to have the ability to pay those fees, and awarded Gardner attorney's fees in the amount of $6,848.99.
We first address the lower court's denial of Gardner's request for modification of alimony. The order of denial states that the alimony provision of the settlement agreement was for permanent periodic, not rehabilitative, alimony. Gardner contends that rehabilitation was the clear purpose of the agreement, and that was the reason alimony was to be decreased after five years. Edelstein contends that the wording of the agreement clearly shows that it was for permanent periodic alimony. 1
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