Waldman v. Waldman

Decision Date16 February 1988
Docket NumberNos. 86-2044,86-2329,s. 86-2044
Citation13 Fla. L. Weekly 463,520 So.2d 87
Parties13 Fla. L. Weekly 463 Irving WALDMAN, Appellant, v. Myrna WALDMAN, Appellee.
CourtFlorida District Court of Appeals

Earle & Patchen, P.A., Daniels & Hicks, P.A., and Sam Daniels, Miami, for appellant.

Sinclair, Louis, Siegel, Heath, Nussbaum & Zavertnik, P.A., and Paul A. Louis, John L. Zavertnik, and Leonard H. Rubin, Miami, for appellee.

Before HUBBART, FERGUSON and JORGENSON, JJ.

CORRECTED OPINION

JORGENSON, Judge.

Dr. Irving Waldman brings a consolidated appeal from a final judgment granting an upward modification of alimony and child support and awarding attorneys' fees and costs to Mrs. Waldman.

The twenty-two-year marriage of Dr. Irving Waldman and Myrna Waldman was dissolved in 1976. In the final judgment dissolving the marriage, Mrs. Waldman received, as partial lump sum alimony/equitable distribution, Dr. Waldman's entire one-half interest in their marital home. In addition, she received all the furniture, furnishings and fixtures in the home, as well as title to a late-model Pontiac automobile with an equity of about $3,500. Mrs. Waldman's total lump sum award exceeded $157,000.

Dr. Waldman removed from the home a chair, television, movie camera, personal desk set, medical books, and clothes. He was awarded the equity of $9,500 in his townhouse and all the beneficial interest in his pension and profit sharing plan which had a value of approximately $137,000 in 1976. 1

At the time of dissolution, four of the six children were minors. Mrs. Waldman was awarded custody. She received $4,000 per month combined permanent periodic alimony and child support, reduced to $3,000 per month after six months, and further reduced to $2,000 per month when the last child reached majority. Dr. Waldman maintained a major medical and hospitalization policy covering each of the minor children. He maintained life insurance policies with a total death benefit amount of not less than $160,000, with stepwise reductions as each child reached majority. Mrs. Waldman was provided with major medical and hospitalization insurance policies. In the decade following dissolution, Dr. Waldman, without compulsion of court order, has expended some $225,000 to furnish higher education and other comforts to his adult children. 2

During those same years between the final judgment of dissolution and these proceedings, Mrs. Waldman dissipated all the assets she had acquired under the 1976 judgment. In the company of one Charles Marler, a gentleman with whom she enjoyed an intimate relationship, Mrs. Waldman enjoyed an upscale standard of living. 3 She and Mr. Marler lived in the marital home for a period of time before Mrs. Waldman sold the home. She bought, redecorated, and sold two other homes in Miami and one in Colorado where she had moved to be with Mr. Marler. While in Colorado she squandered the remaining proceeds from the sale of the marital domicile. Mrs. Waldman then returned to Miami, seeking to modify the original final judgment of dissolution by way of additional alimony and child support.

Following a hearing, the trial court entered its final judgment granting Mrs. Waldman's petition for modification. 4 The court denied Dr. Waldman's claim that Mrs. Waldman had entered into a common law marriage under Colorado law. 5 Dr. Waldman appeals that portion of the final judgment increasing Mrs. Waldman's permanent periodic alimony to $5,500 per month and increasing support for the remaining minor child to $1,500 per month.

We affirm the award of increased child support and reverse the award of increased alimony based upon the following analysis.

I. Alimony

Modification based upon a change of circumstances requires a showing that the change is sufficient, material, involuntary, and permanent in nature. Bish v. Bish, 404 So.2d 840 (Fla. 1st DCA 1981). The change in financial circumstances must be meaningful, Powell v. Powell, 386 So.2d 1214 (Fla. 3d DCA 1980), relating to the needs of the spouse receiving the alimony and the ability of the other spouse to pay. See Canakaris v. Canakaris, 382 So.2d 1197 (Fla.1980).

While a loss in the dollar's purchasing power is a relevant factor in considering a modification of alimony, Greene v. Greene, 372 So.2d 189 (Fla. 3d DCA 1979), there must be a showing that the national problem of inflation impacts specifically on the individual claiming inflation as the basis for modification. Inflation must have in fact created the need. In Powell, this court affirmed an order granting an upward modification of alimony. There, the order was amply supported by a record showing that inflation caused Mrs. Powell to seek employment outside the home in order to preserve her previous standard of living. In the instant case, there is a marked absence of the required showing of a real change in the circumstances of a party as opposed to an abstract and largely irrelevant change in the economy as a whole. Powell, 386 So.2d at 1215. See also Stoler v. Stoler, 376 So.2d 253 (Fla. 3d DCA 1979) (error in providing in final judgment for automatic increase in alimony based upon cost of living index), cert. denied, 389 So.2d 1115 (Fla.1980). The trial court in its order merely recited the increase in the Consumer Price Index and concluded that Mrs. Waldman's standard of living had been reduced thereby. The trial court failed to make the requisite findings of fact demonstrating, as in Powell, in what specific ways Mrs. Waldman's standard of living had diminished due to inflation.

Further, the mechanism of the original final judgment bears on the issue of inflation. Since 1976 Mrs. Waldman has received level payments of $3,000 each month in undifferentiated alimony and child support. As the minor children attained their majorities and ended their dependence on their mother--in 1977, 1980, and 1982--she suffered no diminution in her support. As we observed in Bess v. Bess, 471 So.2d 1342 (Fla. 3d DCA), appeal dismissed, 476 So.2d 672 (Fla.1985), rev. denied, 482 So.2d 347 (Fla.1986), the self-supporting status of children previously dependent on a party may offset the impact of inflation.

Permanent periodic alimony provides for the needs and necessities of life to a former spouse as they have been established by the marriage of the parties. A divorced spouse is entitled to live in a style reasonably commensurate with the standard established by the parties during the course of a long-term marriage. See O'Neal v. O'Neal, 410 So.2d 1369 (Fla. 5th DCA 1982) (former wife's standard of living should be reasonably comparable to that established by former husband during their thirty-two-year marriage). However, financial needs must be evaluated in light of that standard. There is ample evidence in the record to indicate that the court based its modification on the standard of living enjoyed by Mrs. Waldman post-dissolution and not the standard established during her twenty-two-year marriage. In its final judgment, the trial court noted that Mrs. Waldman had not been able "to maintain any semblance of the standard of living realized by the children and herself for a long period subsequent to the divorce." Although it is well established that a spouse's use of support on an extravagant or unsavory life style will not justify a downward modification or termination of alimony, Phillippi v. Phillippi, 148 Fla. 393, 4 So.2d 465 (1941); De Poorter v. De Poorter, 509 So.2d 1141 (Fla. 1st DCA 1987); Tinsley v. Tinsley, 502 So.2d 997 (Fla. 2d DCA 1987); Withers v. Withers, 390 So.2d 453 (Fla. 2d DCA 1980), rev. denied, 399 So.2d 1147 (Fla.1981); Horner v. Horner, 222 So.2d 791 (Fla. 2d DCA 1969), her profligacy will not be subsidized by an order granting an upward modification. We find that the trial court erred as a matter of law in applying an incorrect standard to evaluate Mrs. Waldman's financial needs.

The property received at the time of original dissolution should also be considered in making a changed circumstances determination. De Poorter. Under the terms of the original final judgment of dissolution, Mrs. Waldman took possession of her husband's entire interest in the marital home. The home represented the lion's share of her equitable distribution and was provided to her so that she would have a place to live without depleting her assets. Possession of the asset would have enabled her to maintain her accustomed standard of living. Anderson v. Anderson, 489 So.2d 1232 (Fla. 1st DCA 1986). Mrs. Waldman managed her equity according to her own desire. She cannot now seek a modification to support a style of living made possible only through a wholesale--and voluntary--dissipation of her assets. See Vanden Bosch v. Elkins, 419 So.2d 1127 (Fla. 3d DCA 1982). Mrs. Waldman's health and inability to work, moreover, were contemplated at the time of the original final judgment. The fact that she tried to "work" and lost her assets in the process of starting a business which ultimately failed does not constitute an unforeseeable, involuntary change in circumstances. Jaffee v. Jaffee, 394 So.2d 443 (Fla. 3d DCA 1981). It is clear from the record that her financial straits resulted from Mrs. Waldman's willful and voluntary increased spending.

A beneficial interest in his pension fund constituted virtually all of the equitable distribution made to Dr. Waldman in the original final judgment. In the proceedings below, the trial court observed that his pension fund, valued at the time of the modification proceeding at approximately $1,200,000, had grown by almost 1000% since the dissolution. The increase, along with Dr. Waldman's doubling of salary, was considered sufficient evidence of the doctor's increased ability to pay increased alimony. We find, however, that the trial court has incorrectly applied the rule of law set out in Diffenderfer v. Diffenderfer, 491 So.2d 265 (Fla.1986), concerning a spouse's entitlement...

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