Perez v. Perez

• Decision Date: 23 January 2008
• Docket Number: No. 4D06-4327.,No. 4D06-4036.,4D06-4036.,4D06-4327.
• Citation: 973 So.2d 1227
• Parties: Robert PEREZ, Appellant, v. Laurie PEREZ, Appellee.
• Court: Florida District Court of Appeals

973 So.2d 1227

Robert PEREZ, Appellant, v. Laurie PEREZ, Appellee.

No. 4D06-4036.

No. 4D06-4327.

District Court of Appeal of Florida, Fourth District.

January 23, 2008.

Gene Reibman, Fort Lauderdale, for appellant.

Lisa J. London of Law Offices of Mark S. London, P.A., Hollywood, for appellee.

PER CURIAM.

Robert Perez (former husband) appeals an order denying his motion to modify his alimony and child support obligations. As grounds for the modifications, the former husband alleged he suffered a permanent reduction in his income and that one of his minor children had reached the age of majority. The trial court entered a "directed verdict" at the close of the former husband's case, finding that the former husband had failed to present a prima facie case that his loss of income was permanent. Because the evidence showed that the former husband's income had been severely reduced for nearly a year, with no end in sight, we reverse. We also accept the former wife's concession of error as to the need for a child support modification upon the child reaching the age of majority.

The parties were married in 1984. They had three children of the marriage. The former wife has a college education. The former husband has only a high school education.

The petition for dissolution was filed on September 30, 1999. The former husband's first financial affidavit, dated November 10, 1999, showed him to be employed in "Advertising media/mailing list broker." It is undisputed that he has been in this business for at least 23 years and it is his only area of skill. His employer was Gnames Advantage, L.P. He listed gross income for 1998 of $149,610.

A final judgment of dissolution of marriage was entered on July 12, 2001. Pursuant to an incorporated Marital Settlement Agreement, former husband was ordered to pay child support of $2,100 per month. The incorporated Marital Settlement Agreement imputed income of $20,000 a year to the former wife and found the former husband's total compensation to be $250,000 per year. The former husband was ordered to pay permanent periodic alimony of $6,100 per month.

By May 2002, the former husband moved to modify the alimony and child support, alleging a "substantial financial setback" to his business, substantially reducing his income. On January 15, 2003, the former husband filed an amended financial affidavit which showed his gross monthly income to be $9,338.

In a July 24, 2003 "final judgment," the trial court found that "since entry of the Final Judgment of Dissolution of Marriage, there has been a substantial material, involuntary and unanticipated change in circumstances in the Former Husband's (sic) which has been substantially reduced due to a setback in the business of Gnames Advantage in which the former husband has a 37.5% ownership interest. The business has suffered a serious financial setback." The court found that the former husband's gross income had been reduced to $9,577.33 a month. The court also found that the parties' oldest son had reached majority on August 29, 2002. Thus, the court reduced the former husband's alimony roughly in half, to $3,000 a month, and reduced his child support to $1,300 per month, retroactive to the date that the oldest son turned eighteen.

On June 21, 2005, the former husband filed a new motion to modify his alimony. The motion and accompanying financial affidavit alleged a reduction in his gross income from $9,577.33 a month to $7,275.00 per month as a result of his loss of his 37.5% ownership interest in Gnames Advantage, which he had been forced to give up as part of his Chapter 7 bankruptcy proceeding.

On November 22, 2005, the former husband filed a motion to modify child support, which alleged that a second child had reached the age of majority and that the former husband had now lost his job. The fact that the middle child reached majority in November 2005 is undisputed. It is also undisputed that the former husband lost his job in September 2005 and has since started a new business.

In March 2006, the former husband filed a new financial affidavit showing total monthly gross income of $1,263. The financial affidavit showed net monthly income after deductions of minus $696 and monthly expenses of $2,758, for a net monthly deficit of $3,453. The affidavit showed a net worth of minus $87,972.

The former wife filed a new financial affidavit showing her new occupation as a real estate agent. She listed a gross monthly income of $1,000, net income of $550.00 per month, and monthly expenses of $8,300.52, for a monthly deficit of $7,750.52. The former wife listed assets of $318,706.74 and liabilities of $21,323.00.

In August 2006, the former husband filed a new financial affidavit showing that he had started a company that works on a commission basis, and that his current monthly gross income was $2,375. After deductions, his net monthly income was $190 and his total monthly expenses were $3,283, for a deficit of $3,092 per month. His total net worth was listed at minus $145,139.

The former husband testified that he was discharged from his employment at Gnames in September 2005. He received a 60-day severance. He then sought unemployment benefits as he attempted to establish a new business and seek employment. The former husband testified that he currently works out of his home. He started his new business in the direct marketing business (both direct mailing and Internet marketing) almost immediately upon being notified of the termination of his employment. He has worked full-time in the new company since then. Another company lent him $52,000 to make a go of the new business. His new company, Rap Interactive, earned approximately $2,000 in the month of July 2006. In the month of August it received $3,000. These were the first revenues the company earned. He does not know what the new company will ultimately earn. However, former husband testified that his financial situation is permanent. He explained:

The income that I used to enjoy, that over a seven to ten-year period consistently showed a pattern of decline. Which is why we've been back into the court several times. . . .

I primarily have catered to direct mail marketing accounts. And the direct mail economic model has been strained for a variety of reasons, beginning with the fact that the cost of paper and postage and printing has consistently gone up. Response rates due to competition and mail saturation have gone down. Due to government regulation on what had become a fairly large industry made a number of large companies go out of business, major well-known companies, like American Family Publishers, like Fingerhut Corporation, and many other large companies have gone out of business. And the revenue began to atrophy in the trade as a result.

The mailing list generated by those large companies were not available to fuel other direct mail promotions. So the volume of direct mail started to decline for all of those reasons.

The advent of the Internet as a way to spend money to direct market has started to take hold and become a vibrant way to market. And has been competing with direct mail dollars or shares of those revenues. That has led to an awareness of multichannel marketing. So direct marketing companies that primarily used to direct mail are now spending money in multiple other channels like the Internet.

And all of those things are not going to change and reverse themselves anytime soon in the months or years to come. That is a permanent condition. It was a very clear pattern of atrophy, not just on my part, on the part of my business, but an industry-wide pattern that Mr. Batrouney can also testify to.

Regarding his attempts to find employment with another company in the industry, the former husband testified:

The problem with my type of job is that it's sales and commission oriented. And without no established book of clients and no ongoing revenue that a perspective (sic) employer could count on, what they're looking at is essentially paying me an accruing mountain of outgo dollars, along with funding my travel and business development expenses, with being in a business where there's a long term time frame associated with securing accounts, booking business that's booked into future marketing campaign dates that are collected sometime after that. There is a long lead time for revenue.

So without an established book of business, most companies are reluctant to hire someone, given that cash flow scenario that I've described.

So, no, I have not received offers of employment,...