Irwin v. Irwin

• Decision Date: 16 March 1989
• Docket Number: No. 88-1316,88-1316
• Citation: Irwin v. Irwin, 539 So.2d 1177, 14 Fla. L. Weekly 693 (Fla. App. 1989)
• Parties: 14 Fla. L. Weekly 693 Ronald L. IRWIN, Appellant, v. Corrine IRWIN, Appellee.
• Court: Florida District Court of Appeals

Page 1177

539 So.2d 1177

14 Fla. L. Weekly 693

Ronald L. IRWIN, Appellant, v. Corrine IRWIN, Appellee.

No. 88-1316.

District Court of Appeal of Florida Fifth District.

March 16, 1989.

Michael J. Appleton, Orlando, for appellant.

J. Cheney Mason, Orlando, for appellee.

COBB, Judge.

This is an appeal from a modification order increasing the former husband's alimony obligation from $400.00 per month to $2,500.00 per month, based upon a finding by the trial court that the evidence established a substantial change in the former husband's ability to pay and in the former wife's need for support.

The parties, Ronald and Corrine Irwin, were married from 1962 to 1973. At the time of divorce, there were two minor children, and the wife was 31 years old. Pursuant to agreement, she received $400.00 permanent alimony, which was temporarily increased by agreement in 1981 to $575.00. The increase terminated automatically in June, 1987, when the younger child reached majority. At that time Corrine Irwin filed a petition for modification. At the time of hearing she had an annual salary of some $8,200.00 in addition to the $400.00 monthly alimony and miscellaneous income from citrus stock dividends, averaging $1,350.00 per year. Her financial affidavit claimed a monthly deficit of approximately $1,000.00 per month.

Ronald Irwin argues on appeal that the trial court erred as a matter of law in that the increase in alimony was predicated, at least in part, upon an increase in the former husband's ability to pay rather than upon any increase in the former wife's need as originally established by the parties' standard of living during marriage. See Waldbaum v. Waldbaum, 520 So.2d 87, 89 (Fla. 3d DCA), review denied, 531 So.2d 169 (Fla.1988); O'Neal v. O'Neal, 410 So.2d 1369 (Fla. 5th DCA 1982). It is undisputed that Irwin has become a wealthy man since the dissolution. However, in a petition for modification the recipient's need is the sine qua non of the determination; unless and until it is established that there has been a substantial increase in need, ability to pay must not be considered. Once that need is established, the question is whether or not the husband has the ability to meet that increased need, in whole or in part. To hold otherwise improperly grants the alimony recipient a continuing interest in the former spouse's good fortune. See Howerton v. Howerton, 491 So.2d 614, 615 (Fla. 5th DCA 1986). It is clear from the record in this case, and from...