Webb v. Webb, 94-1750

• Decision Date: 11 April 1995
• Docket Number: No. 94-1750,94-1750
• Citation: 659 So.2d 336
• Parties: 20 Fla. L. Weekly D943 Rachael Helms WEBB, Appellant, v. Gov E. WEBB, Appellee.
• Court: Florida District Court of Appeals

Page 336

659 So.2d 336

20 Fla. L. Weekly D943

Rachael Helms WEBB, Appellant, v. Gov E. WEBB, Appellee.

No. 94-1750.

District Court of Appeal of Florida,

First District.

April 11, 1995.

Robert B. Staats, Panama City, for appellant.

Carroll L. McCauley, Panama City, and Elliot Zisser, Jacksonville, for appellee.

WEBSTER, Judge.

Appellant (the former wife) seeks review of a final order reducing the amount of her monthly permanent alimony by more than one-third, and denying her request that appellee (the former husband) be required to pay some or all of her attorney fees and costs. As to both issues, we conclude that the order constitutes an abuse of discretion. Accordingly, we reverse.

The amount of permanent periodic alimony to be paid by the former husband to the former wife was established by the final judgment entered in 1992, dissolving the parties' marriage. Approximately one year after the final judgment had been entered, the former husband filed petitions requesting that the amount of his obligation to pay alimony be reduced because his income had declined and the former wife had received proceeds from the sale of stock distributed to her incident to the final judgment, which proceeds were sufficient to permit her "to fully support and maintain herself." Coincident with the filing of his petitions, the former husband unilaterally reduced the amount of his monthly alimony payment to the former wife by almost two-thirds.

The evidence presented at the hearing on the former husband's petitions, viewed in a light most favorable to him, established that his monthly income had increased by at least fifty percent since the entry of the final judgment. Accordingly, there was, and is, no real question regarding the former husband's continuing ability to pay the amount of alimony originally awarded. In fact, counsel for the former husband conceded both during the former husband's deposition and before this court that the former husband continues to possess the financial wherewithal to pay the amount of alimony originally awarded. The only real issue raised was whether the former wife's financial position had been so improved by the proceeds received from the sale of the stock awarded to her as to warrant the requested reduction in the amount of permanent periodic alimony.

The amount of alimony awarded by the final judgment was based upon the finding that, during their marriage, the parties had been fortunate enough to have enjoyed a very comfortable--some might even say relatively lavish--lifestyle. The evidence presented at the hearing on the former husband's petitions for modification established that, while the former wife continued to live comfortably after the dissolution, even with the additional income generated by the proceeds from the stock sale, she would be unable to live in the style enjoyed by the parties during their marriage without the amount of alimony originally awarded. Moreover, there was no question about the fact that the former husband would be able to enjoy a lifestyle at least as good as that established during the marriage, even if he were required to continue to pay the full amount of alimony. In other words, this is one of those "exceptional cases" in which the parties' resources are sufficient to permit them to maintain separate lifestyles after divorce consistent with that enjoyed by them during their marriage. See Fontana v. Fontana, 617 So.2d 418, 419 (Fla. 1st DCA 1993) (citing Pirino v. Pirino, 549 So.2d 219 (Fla. 5th DCA 1989)).

To establish entitlement to the requested modification, the former husband was obliged to prove that the modification was warranted because of a substantial and material change in the circumstances of the parties since the entry of the final judgment. E.g., Zipperer v. Zipperer, 567 So.2d 916 (Fla. 1st DCA 1990), review denied, 581 So.2d 1312 (Fla.1991). Given the evidence, we believe that it is clear that the former husband did not carry that burden.

The principal purpose of permanent periodic alimony was explained in Canakaris v. Canakaris, 382 So.2d 1197, 1201 (Fla.1980):

Permanent periodic alimony is used to provide the needs and the necessities of life to a former spouse as they have been established by the marriage of the parties. The two primary elements to be considered when determining permanent periodic alimony are the needs of one spouse for the funds and the ability of the other spouse to provide the necessary funds.

It is true that the former wife's ability to earn income had increased as a result of receipt of the proceeds from the sale of the stock. However, it is also true that the former husband's income had increased. In fact, his income had increased by a significantly greater amount than had the former wife's. Moreover, and of critical importance, notwithstanding the increase in her income, the former wife continued to need the full amount of alimony originally awarded to permit her to enjoy the lifestyle established during the marriage. In addition, the former husband could continue to pay that amount and easily enjoy a lifestyle at least as comfortable as that established during the marriage. Given these facts, we conclude that the order reducing the amount of the alimony award was an abuse of discretion. See generally Kelly v. Kelly, 557 So.2d 625 (Fla. 4th DCA 1990) (in determining propriety of permanent periodic alimony award, consideration must be given to lavish lifestyle enjoyed during marriage and disparity between parties' ability to produce income); Halberg v. Halberg, 519 So.2d 15 (Fla. 3d DCA 1987) (abuse of discretion not...