Lopez v. Lopez
| Decision Date | 07 November 2007 |
| Docket Number | No. 3D06-3067.,3D06-3067. |
| Citation | 970 So.2d 388 |
| Parties | Eduardo LOPEZ, Appellant, v. Minita LOPEZ, Appellee. |
| Court | Florida District Court of Appeals |
Leonardo G. Renaud, Miami Lakes, for appellant.
Kenneth M. Kaplan, for appellee.
Before SHEPHERD, SUAREZ, and ROTHENBERG, JJ.
The former husband, Eduardo Lopez, appeals from a final judgment modifying his alimony obligation to his former wife, Minita Lopez, which was entered by the trial court upon remand from this Court in Lopez v. Lopez, 920 So.2d 1165 (Fla. 3d DCA 2006). We reverse and remand for entry of an order consistent with this opinion.
In Lopez, this Court reviewed an order terminating the former husband's alimony obligation to the former wife. This Court summarized the pertinent facts leading to the entry of that order as follows:
The parties were divorced in December of 1993. As part of the Final Judgment of Dissolution of Marriage, former wife was awarded permanent alimony in the amount of $2,000.00 per month. The trial court reserved jurisdiction pursuant to Pimm v. Pimm, 601 So.2d 534 (Fla. 1992), to consider former husband's permanent alimony obligation upon his reasonable retirement. At the time of the dissolution, former husband was a bank executive with an annual salary of $92,000.00. Former wife was 48 years old and unemployed.
On June 18, 2004, former husband filed a Supplemental Motion for Modification on the ground that his employment was involuntarily terminated effective May of 2004, that he retired as a result, and that his retirement income was $1,588.00 per month. Former husband's financial affidavit established that he is living in a deficit, which requires him to draw from his retirement savings each month.
Former husband's Motion was set for final hearing on several occasions but was continued when former wife did not comply with the financial disclosure requirements. On December 3, 2004, former husband filed a Motion for Default. The trial court granted the Motion for Default and as a result, without taking any evidence except for Husband's financial affidavit, the court granted Husband's Supplemental Motion to Modify Alimony Obligation. The court cited former wife's failure and refusal to comply with discovery to support the default, found that former husband does not have the present ability to make alimony payments, and entered a Final Judgment for Termination of Alimony Payments.
In appealing the order terminating the former husband's alimony obligation in the former appeal, the former wife raised two arguments. First, she claimed that although the trial court entered a default judgment against her for failing to comply with discovery requests, it was error to enter the default judgment "without conducting an evidentiary hearing to inquire into former husband's assets and the reasonableness of former husband's retirement in light of his age, ability to remain employed, and former wife's needs." Id. at 1167. Second, she claimed that "the court erroneously terminated former husband's alimony obligation where former husband only sought a reduction of alimony." Id.
On appeal this Court concluded that the trial court did not abuse its discretion in entering the default based on the former wife's failure to comply with discovery, id. at 1167 n. 1, but agreed with the former wife that the trial court erred in failing to hold an evidentiary hearing, and stated as follows:
Although former wife defaulted, and should be precluded from presenting any evidence, husband must still meet his burden of establishing a substantial change in circumstances, and wife is entitled to cross examine and challenge that evidence. Accordingly, we find that the trial court abused its discretion in failing to hold an evidentiary hearing on husband's Motion for Modification.
Id. at 1167. This Court additionally agreed with the former wife that the former husband's alimony obligation could not be terminated as his pleadings requested a modification, not a termination. Id. at 1168. Based on its rulings, this Court reversed and remanded for an evidentiary hearing to determine the proper modification, if any, noting that while the former wife could not present evidence at the hearing, she could "challenge former husband's basis, and evidence, for modification and may cross-examine former husband." Id. at 1168 n. 2.
The order currently under review is the Final Judgment of Modification entered by the trial court after it conducted the evidentiary hearing ordered by this Court in Lopez. Consistent with this Court's directive in Lopez, only the former husband testified. In addition to the facts set forth in Lopez, the former husband testified that in 1999 or 2000, he was terminated from his employment when the bank he was working for at the time closed. After approximately two years of actively seeking employment, he was hired by another bank for approximately $38,000 per year. Based on the reduction of his income, he sought to reduce his alimony obligation to his former wife. In 2002, the modification was granted, and his alimony obligation to his former wife was reduced from $2,000 to $1,250 per month.
After working for this bank for approximately three years, in May 2004, the former husband was terminated when that bank also closed. The former husband, who was sixty-six years old when he was terminated from this bank, was not able to obtain employment due, in part, to his lack of familiarity with the technology that banks were currently using.
At the time of the hearing, the former husband owned a modest condominium and vehicle, and had approximately $66,000 in savings, and his monthly income was limited to $1,719 in Social Security and approximately $200 to $300 in interest. He further explained that he had been slowly depleting his savings because his monthly expenses exceeded his monthly income.
On cross-examination, the former wife's attorney questioned the former husband as to a real estate investment. The former husband explained that he purchased an apartment building after losing his position at the first bank, intending that the rental of the units in the building would provide him with a source of monthly income. He purchased and repaired the apartment building by depleting his retirement and bank accounts, and by obtaining a substantial mortgage and private loans. The former husband explained that he "know[s] nothing about real estate," and that he "did a lousy job with the buildings." He sold the apartment building two to three years later after obtaining employment at the second bank. With the funds he netted from the sale of the building, he paid the tax liability due from the sale, and he purchased the condominium he currently lives in for $110,000. The funds he currently has in his savings account are the funds remaining from the sale of this building.
Following the former husband's testimony and arguments by the parties' counsels, the trial court recognized that pursuant to Pimm, it was required to consider the financial needs of the receiving spouse, here the former wife, and the impact that termination or modification of support would have on that spouse. Pimm, 601 So.2d at 537.2 The trial court, however, noted that because the former wife failed to provide financial information and to otherwise comply with her discovery obligations in Lopez, this Court precluded the former...
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