Harby v. Harby

• Decision Date: 17 November 2021
• Docket Number: 2D20-2602
• Citation: 331 So.3d 814
• Parties: Hala Lewis HARBY, Appellant, v. Mohamed Wanis HARBY, Appellee.
• Court: Florida District Court of Appeals

331 So.3d 814

Hala Lewis HARBY, Appellant,

v.Mohamed Wanis HARBY, Appellee.

No. 2D20-2602

District Court of Appeal of Florida, Second District.

November 17, 2021

Mark F. Baseman of Felix, Felix & Baseman, Tampa, for Appellant.

Heather A. Harwell of Law Office of Heather A. Harwell, P.A., Wesley Chapel, for Appellee.

LaROSE, Judge.

Hala Lewis Harby (Former Wife) and Mohamad Wanis Harby (Former Husband) are divorced. Former Wife appeals the second amended final judgment of dissolution of marriage.¹ We write to address three issues. First, although the record shows that the sale of Former Husband's house was "fairly certain," the record fails to support the claimed purchase price and expenses associated with Former Husband's expected new house. Thus, we reverse the future alimony and future child support awards, and we remand for further proceedings. Second, we highlight and remand for correction of several apparent mathematical errors in the second amended final judgment. Third, we affirm the trial court's distribution of the family dogs to Former Husband. We affirm as to all other issues without further comment.

I. Background

Former Wife and Former Husband married in December 2001; they separated in June 2017. They have two minor children. In November 2017, Former Wife petitioned for dissolution of marriage and relocation to North Carolina. The parties owned a house in Pasco County.

The parties entered a marital settlement agreement (MSA) in June 2020. The MSA provided, in part, that "[s]hould the Husband desire to sell the Florida [h]ome to satisfy the mortgage, he is not under an obligation to close within 60 days to remove the Wife's name, but must be in contract for sale of the [house] within 90 days from entry of this Agreement." Having resolved most of their disputes in the MSA, the parties reserved three issues for the trial court to decide: (1) Former Husband's claim for alimony; (2) Former Husband's claim for child support; and (3) the distribution of two dogs.

Former Husband's financial affidavit listed monthly expenses of $7359. The children's expenses were $440, his life insurance premium was $353, his credit card payments were $2350, and his automobile expenses were $660. He testified that health insurance was $600.

Former Husband testified that he planned to sell his house and use the proceeds to buy a smaller house in Plantation Palms. This action would eliminate his monthly mortgage payment. He planned to buy a house ranging in price from $230,000 to $250,000. He introduced printouts of online listings for two houses for sale in Plantation Palms; one for $214,000 and one for $259,900. Former Husband then testified about his future monthly expenses, assuming that he would purchase a new house for $235,000, with an estimated $15,000 for closing costs. He did not describe how he calculated those costs.

Former Husband testified that the monthly homeowner association (HOA) fee for a house in Plantation Palms would be $400, house insurance would be $75, and property taxes would be about $230. The HOA fee included lawn care, pool maintenance, and outside maintenance. Former Husband also testified that utilities and other expenses currently cost $1700; that amount would decrease to $1500 after he purchases the new house. He testified that $320 of the $1700 was for electricity and water; he did not explain the remaining $1380.

He then testified that the $1500 expenses included electricity, water, TV service, internet, house telephone, three cell phones, and pest control. These same expenses listed on Former Husband's financial affidavit only added up to $680. The financial affidavit did not list the cost of internet. Former Husband testified that the only difference between the $1700 and $1500 was the cost of electricity.

Former Wife testified that the family had two dogs, Liberty and Nico. Apparently, the dogs were bonded to each other. She also testified that the family adopted Liberty "to be an emotional support dog." She testified that Liberty provided her with emotional support, was her constant companion, and "was the little girl [she] didn't have."

Former Wife testified that she took care of the dogs from the time the family adopted them in 2013 and 2014, respectively, to the time the parties separated in 2017. The dogs had been in Former Husband's possession and care since then. Former Wife explained that the dogs briefly visited her in June 2018 when they accompanied the children to visit at Former Wife's house. She returned the dogs with the children to Former Husband, but she wanted the dogs to stay with her.

Former Wife testified that she never asked the children how they would feel losing the family dogs. When asked whether the children were close to the dogs, the trial court sustained a relevancy objection. The trial court believed it could not consider the children's attachment to the dogs to distribute them.

After trial, the trial court entered its second amended final judgment. The trial court found Former Husband's financial affidavit to be fair and accurate. The trial court found that Former Husband needs $1735.89 a month in alimony until he sells his house. It then determined that Former Husband's needs would grow upon the sale of his house. Consequently, the trial court awarded him $2439.89 a month in alimony once he sells the house and purchases a new house. The trial court calculated the change by (1) adding the future HOA fees, health insurance, future home insurance, and future property taxes; and (2) replacing the fees for the lawn care, the mortgage, pest control, utilities, telephone "with $1500, which is what [Former] Husband testified would be the total amount for all utilities, and all other expenses previously deducted." The trial court also provided that Former Wife's child support obligation would increase from $1558.87 to $1708.72 once Former Husband sells the house.

The trial court determined that the family dogs were marital property. The trial court observed that Former Wife was in good health; it did not note any physical or mental disabilities. The trial court noted that the parties agreed the dogs should not be separated and that "[t]he dogs have been in [Former Husband's] possession since the [p]arties’ separation." It distributed the dogs to Former Husband.

II. Discussion

A. Future Alimony

Former Wife argues that the trial court abused its discretion in providing that her alimony obligation would increase to $2439.89 when Former Husband sells his house and buys a new house. She contends that (1) the award "is based on an uncertain future contingency" and (2) "the amount of the award appears to be mathematically incorrect." Former Husband contends that the alimony modification was appropriately based on "the specifically identified occurrence of Former Husband's sale of his [house] and the anticipated expenses to which Former Husband testified."

We review alimony awards for an abuse of discretion. See Lin v. Lin , 37 So. 3d 941, 942 (Fla. 2d DCA 2010).

1. Future Event

"Judgments providing for automatic changes in alimony and support payments upon the occurrence of future events have not usually found favor in Florida." Kangas v. Kangas , 420 So. 2d 115, 116 (Fla. 2d DCA 1982) (first citing Stoler v. Stoler , 376 So. 2d 253 (Fla. 3d DCA 1979) ; then citing Reid v. Reid , 365 So. 2d 1050 (Fla. 4th DCA 1978) ; then citing Richter v. Richter , 344 So. 2d 889 (Fla. 4th DCA 1977) ; and then citing McNaughton v. McNaughton , 332 So. 2d 673 (Fla. 3d DCA 1976) ); see also Jimenez v. Jimenez , 211 So. 3d 76, 79 (Fla. 4th DCA 2017) ("Generally, ‘it is error to provide for an automatic, future change or termination of alimony based upon the anticipated occurrence of a future event.’ " (quoting Hitt v. Hitt , 571 So. 2d 79, 80 (Fla. 4th DCA 1990) )).

We have reasoned that such judgments are unfavorable because "[t]here is no evidentiary basis for the determination of future events, and there is an adequate procedure for modification when changes in the circumstances of the parties do occur." Kangas , 420 So. 2d at 116 (citing Stoler , 376 So. 2d at 253 ).

Nevertheless, Florida courts have upheld prospective modifications when "they are carefully conditioned upon specifically articulated changes in circumstances which would virtually preclude the possibility of unfairness to either party." Umstead v. Umstead , 620 So. 2d 1074, 1075 (Fla. 2d DCA 1993) (citing Kangas , 420 So. 2d at 116 ); see also Rao v. Rao , 501 So. 2d 38, 39 (Fla. 2d DCA 1986) ("The prospective modification of a final judgment of dissolution, however, may be upheld when precisely drawn and conditioned upon a specifically identified occurrence."). "Before prospectively increasing alimony the court must ‘mak[e] specific factual findings of extenuating circumstances that would support the automatic increase in alimony.’ " Jimenez , 211 So. 3d at 79 (alteration in original) (quoting Swanston v. Swanston , 746 So. 2d 566, 568 (Fla. 1st DCA 1999) ); see, e.g. , Weiser v. Weiser , 782 So. 2d 986, 987-88 (Fla. 4th DCA 2001) (reversing automatic modification where there was "no evidence before the court to determine whether the wife will, in fact, be employed or the husband will continue to have earnings at the current level in five years when the youngest child reaches the age of majority").

Here, the specified event is Former Husband's sale of the house and purchase of a new house. Former Husband testified that he will sell his house and use the sale proceeds to buy a smaller house in Plantation Palms. The MSA reflected Former Husband's desire to sell the house to pay off the mortgage and provided a ninety-day deadline to enter a sales contract and remove Former Wife's name from the note and mortgage. The evidence supports the conclusion that the sale of the existing house is fairly certain. Cf. Spenceley v. Spenceley , 746 So. 2d 505, 506 (Fla. 4th DCA 1999) (upholding the automatic changes in support payments based on the...