Jarrard v. Jarrard

• Court: Florida District Court of Appeals
• Writing for the Court: ALTENBERND, Judge.
• Citation: Jarrard v. Jarrard, 157 So.3d 332 (Fla. App. 2015)
• Decision Date: 07 January 2015
• Docket Number: No. 2D13–5091.,2D13–5091.
• Parties: James M. JARRARD, Appellant, v. Jacqueline T. JARRARD, Appellee.

157 So.3d 332

James M. JARRARD, Appellant

v.Jacqueline T. JARRARD, Appellee.

No. 2D13–5091.

District Court of Appeal of Florida, Second District.

Jan. 7, 2015.

Kristal L. Knox of Ayo & Iken PLC, Tampa, for Appellant.

Jeffrey S. Sirmons and Eileen H. Griffin of Griffin & Associates, P.A., Brandon, for Appellee.

Opinion

ALTENBERND, Judge.

James M. Jarrard appeals a postdissolution order in which the trial court denied his petition for a modification of alimony and established an arrearage of $72,110.27 owed to Mr. Jarrard's former wife, Jacqueline T. Jarrard. The order is based on the trial court's finding that Mr. Jarrard failed to meet his burden of proof that there was a substantial change of circumstances that was permanent in nature. We reverse the order because Mr. Jarrard met his burden to establish a sufficient, material, permanent, and involuntary substantial change of circumstances that was not contemplated at the time of the final judgment of dissolution of marriage. Accordingly, he is entitled to receive a decision from the trial court as to the nature and extent of the appropriate modification. We remand for the trial court to make that decision. In this opinion we discuss the standard of review applicable to this particular ruling by the trial court.

I. THE FACTS

The Jarrards married in 1970. In 2004, when they were both in their mid-fifties and after their children were adults, they divorced. It was not a seriously contested divorce; a stipulated final judgment based on a marital settlement agreement was entered in August 2004. In that judgment, Mr. Jarrard agreed to transfer his interest in the marital home to Ms. Jarrard, pay permanent alimony in the amount of $4200 per month, provide life insurance on his life for the benefit of Ms. Jarrard at a cost to him of $100 per month, and pay her attorney's fees. Equitable distribution was not a complex issue; at all relevant times this couples' net assets, both marital and nonmarital, were modest.

At the time of this divorce, Mr. Jarrard had a good job in Louisiana, making about $150,000 per year. Thus, the payments for alimony and life insurance were roughly 35 percent of this gross income. Mr. Jarrard was already retired from the military at that time. As a result, each party received 50 percent of that retirement benefit, which provided and still provides about $2000 per month for each of them. At the time of the divorce, Ms. Jarrard was earning about $10,000 per year working part time.

Although Mr. Jarrard changed jobs after 2004 and his income decreased, he apparently made his monthly alimony payments until mid–2011. At that time, when he was over sixty years of age, he became unemployed. He looked for a job without success until January 2012. In that month he accepted a job in Naples, Florida, the compensation for which is entirely commission based. Due to the commission structure, his monthly income between January 2012 and July 2013 varied widely between $0 and $15,466. Over the eighteen-month period for the months of February 2012 through July 2013, he earned $90,730, which is $5041 per month. Over the first seven months of 2013, he earned $39,083, which is $5583 per month. Thus, his average monthly income in 2013 was substantially less than $6000, while his average monthly income in 2004 had been about $12,500. This is a reduction in monthly income of more than 50 percent of that earned by Mr. Jarrard at the time of the final judgment of dissolution. At the time of the hearing in this case, the payments for alimony and life insurance had exceeded 70 percent of Mr. Jarrard's average monthly income for two years.¹

Mr. Jarrard filed his first petition to modify alimony in March 2010, but he voluntarily dismissed it in June 2010. He filed a second petition in September 2011, when he had just become unemployed. The matter was actually tried on his second amended supplemental petition for modification or termination of alimony, which he filed in August 2012.²

At the hearing on this matter in July 2013 only Mr. Jarrard testified. He introduced various financial documents. By then the parties were in their mid-sixties. Ms. Jarrard was receiving a military pension, social security, and a small additional income for a total of $37,500 per year. There had been no substantial change in her circumstances and her need for support was still evident. The trial court certainly did not err in denying the request to terminate her alimony.

As demonstrated above, however, the evidence did show that Mr. Jarrard had sustained a major, unexpected loss of income. Although the evidence suggested that Mr. Jarrard's income might improve over time, when accepted in the light most favorable to the trial court's ruling, the evidence still would not support a finding that Mr. Jarrard's income would ever return to levels close to what he earned in 2004.

In the order denying Mr. Jarrard's second amended supplemental petition, the court determined that Mr. Jarrard “has failed to meet his burden of proof that there was a substantial change of circumstances that was permanent in nature.” As a result, it denied modification and ordered Mr. Jarrard to continue to pay the $4200 per month in alimony plus an accrued arrearage of $72,110.27. It ordered the entry of an income withholding order for 65 percent of each paycheck and a similar amount of his “military retired pay” until the satisfaction of the arrearage.

II. THE STANDARD OF REVIEW FOR A TRIAL COURT'S DECISION CONCLUDING THAT A PARTY HAS NOT ESTABLISHED GROUNDS TO MODIFY ALIMONY

The standard of review in this case warrants some discussion. It is often stated that the standard for an appellate court's review of a trial court's decision to modify alimony is abuse of discretion. See, e.g., Driggers v. Driggers, 127 So.3d 762 (Fla. 2d DCA 2013) ; Leonard v. Leonard, 971 So.2d 263 (Fla. 1st DCA 2008). Once a trial court has determined that the party with the burden of proof has established an entitlement to a decision to modify alimony, the actual decision to modify is a discretionary one. The extent of any modification of alimony, based on the evidence of record, is unquestionably an issue over which the trial court exercises sound discretion. Hence, that specific decision is reviewed for an abuse of discretion.

But the issues arising during the adjudicatory process necessary to reach the point where the trial court makes a discretionary decision to modify alimony often involve standards of review other than abuse of discretion.³ During that adjudicatory process, the party seeking a modification must file a pleading that adequately alleges a claim for modification. Such a claim essentially requires the party to allege and the trial court to decide that (1) there has been a substantial change in circumstances, (2) the change was not contemplated at the time of the final judgment of dissolution, and (3) the change is sufficient, material, permanent, and involuntary.⁴ See Eisemann v. Eisemann, 5 So.3d 760, 762 (Fla. 2d DCA 2009) ; see also Pimm v. Pimm, 601 So.2d 534, 536 (Fla.1992). Whether the pleading is legally sufficient in its allegations of this claim, as with all pleadings, is a legal issue reviewed de novo. See Murphy v. Bay Colony Prop. Owners Ass'n, 12 So.3d 924, 926 (Fla. 2d DCA 2009).

The party seeking a modification must then present evidence necessary for the trial court to make factual findings or determinations that are essential for relief. Those essential findings of fact, both express and implied, are reviewed to assure that they are supported by competent, substantial evidence. For example, the trial court in a modification proceeding needs to make factual determinations about the nature and extent of any change in factual circumstances. If disputed, it may need to make a factual decision about whether the change was anticipated at the time of the final judgment.

Finally, the trial court needs to decide whether the proven change is substantial and whether the change was sufficient, material, permanent, and involuntary. These are legal conclusions, not factual determinations, and they are reviewed by the appellate court under a type of de novo review that is actually the normal second step in a “mixed” review.

A “mixed” standard of review is not an invitation for lawyers and judges to engage in mixed-up logic. It is usually employed when the function the trial court is performing requires that court to apply a rule of law to a set of facts that are not undisputed.⁵ The trial court's decision occurs essentially at the logical intersection between a finding of the facts and a decision as to the legal outcome of the issue that is dependent upon those facts.

In cases concerning modification or termination of alimony, this “mixed” standard has best been developed in cases involving modifications of alimony based on the existence of a supportive relationship. See Buxton v. Buxton, 963 So.2d 950 (Fla. 2d DCA 2007) (applying a mixed standard of review on the mixed questions of law and fact concerning the trial court's denial of the former husband's motion to reduce or terminate alimony, which was based upon the trial court's conclusion that the former wife was not engaged in a “supportive relationship” under section 61.14(1)(b), Florida Statutes (2005) ); see also King v. King, 82 So.3d 1124 (Fla. 2d DCA 2012) (applying the standards of review espoused in Buxton ). We conclude that the mixed standard applied by this court in Buxton applies to a broader range of cases in which parties, such as Mr. Jarrard in this case, seek modification of alimony under section 61.14, Florida Statutes (2012).

A mixed standard of review is actually performed by an appellate court as a sequence of two or more distinct reviews. Most commonly, the appellate court reviews the findings of fact to assure they are supported by competent, substantial evidence. Occasionally, the appellate court is called upon to review de novo the trial court's decision as...