Wilson v. Wilson, Case No. 2D08-3184 (Fla. App. 4/21/2010)

• Decision Date: 21 April 2010
• Docket Number: Case No. 2D08-3184.
• Court: Florida District Court of Appeals
• Parties: KATHY M. WILSON, Appellant, v. JAMES S. WILSON, DVM., Appellee.

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KATHY M. WILSON, Appellant, v. JAMES S. WILSON, DVM., Appellee.

Case No. 2D08-3184.

District Court of Appeal of Florida, Second District.

Opinion filed April 21, 2010.

Appeal from the Circuit Court for Lee County, Hugh E. Starnes, Judge.

Gilberto Perez of Henderson, Franklin, Starnes & Holt, P.A., Fort Myers and Cynthia L. Greene of Greene Smith & Associates, P.A., Miami, for Appellant.

Robert L. Donald of the Law Offices of Sherman & Donald, Fort Myers, for Appellee.

LaROSE, Judge.

Kathy M. Wilson appeals the trial court's order modifying Dr. James S. Wilson's alimony obligation. The trial court did not abuse its discretion by finding changed circumstances, reducing alimony to $8000 per month, and applying the modified alimony amount retroactively. Accordingly, we affirm.¹

Factual Background

The parties divorced in 2000, after a twenty-eight-year marriage. The final judgment of dissolution approved a marital settlement agreement in which the Former Husband agreed to pay $11,000 a month as taxable permanent alimony to the Former Wife. At that time, the Former Husband's veterinary clinic was fully staffed with three full-time veterinarians (including the Former Husband), a part-time veterinarian, and support personnel. The Former Husband's total income in 1999 and in 2000 was $339,000.

In 2005, the two other full-time veterinarians, both of whom had been long associated with the clinic, wanted to buy an interest in the practice. They could not agree on terms with the Former Husband. Eventually, they quit and opened their own practice.

Because of a shortage of veterinarians, the Former Husband could not find replacements for the departed full-time veterinarians. The remaining part-time veterinarian worked full-time for a short term. She soon left to join another clinic where she could work a less demanding schedule. The Former Husband was the sole veterinarian left at the clinic. The Former Husband worked an untenable schedule. He worked fifteen hours per day and maintained weekend office hours. He saw no relief for the foreseeable future.

In 2006, Veterinary Clinics of America (VCA) offered to buy the practice for $2.3 million, a price very near that of the business valuation the Former Husband secured about a year earlier. VCA also proposed that the Former Husband work for VCA for two years on commission, for approximately forty hours per week. After two years, his employment with VCA could extend for five additional one-year periods by mutual agreement; thereafter, he could continue on an at-will basis. VCA also insisted that upon leaving VCA the Former Husband would not compete with VCA within a twenty-mile radius for five years. The Former Husband accepted the offer. No one disputes that the Former Husband received adequate consideration for the practice. In 2007, however, his income from VCA was approximately $120,000. His total income, which included investment income and property appreciation, was approximately $250,000.

In 2007, the Former Husband petitioned to modify his alimony obligation.² He was fifty-seven years old; the Former Wife was fifty-six. In granting the petition in March 2008, retroactive to April 11, 2007, the trial court found, in part, as follows:

[T]he evidence demonstrates that [the Former Husband] made a prudent decision to sell his veterinarian practice. If he continued to operate the practice himself, he risked damaging his health and a sudden decline in his income if he became unable to work. This would have been detrimental to both parties. The evidence presented establishes that obtaining associates for a veterinarian practice has been very difficult for VCA as well as for [the Former Husband]. Although [the Former Husband] now has less income from working in his practice, he now has substantial investment income and a more stable and secure future. The 20 mile radius for the non-compete clause allows [the Former Husband] to continue to practice at another clinic in the SW Florida area until retirement age, or to continue on a contract basis with VCA at his former clinic.

. . . .

The Court finds that [the Former Husband's] present earning ability is about 35% less than the income he earned at the time of the entry of the Final Judgment. Reducing alimony by 35% would result in a reduction of monthly alimony to $7,150. The percentage that alimony bears to the gross income at the time of the entry of the Final Judgment is about 39%. Applying that same percentage to current income would result in a reduction of alimony to $8,125 per month. According to the alimony calculation worksheet provided by the Former Husband, $8,000 per month in alimony would furnish the parties roughly equal cash flow (actually the [F]ormer Wife would have about $200 more per month) based on their current incomes.

The Court finds that significant amounts of the [F]ormer Wife's expenses on her financial affidavit were for gifts, retirement savings, future repairs to her house, and other items which are not proper considerations for determining alimony. The Former Wife's need for alimony is less than the $11,000 per month previously established.

Analysis

Section 61.14, Florida Statutes (2007), provides in relevant part as follows:

(1)(a) When the parties enter into an agreement for payments for, or instead of, support, maintenance, or alimony . . . or when a party is required by court order to make any payments, and the circumstances or the financial ability of either party changes . . ., either party may apply to the circuit court . . . for an order decreasing or increasing the amount of support, maintenance, or alimony, and the court has jurisdiction to make orders as equity requires, with due regard to the changed circumstances or the financial ability of the parties or the child, decreasing, increasing, or confirming the amount of separate support maintenance, or alimony provided for in the agreement or order . . . .

(7) When modification of an existing order of support is sought, the proof required to modify a settlement agreement and the proof required to modify an award established by court order shall be the same.

"In considering modification the court can and should take into consideration all factors and contrast the total circumstances at the time of the original order with all the current circumstances." Scott v. Scott, 285 So. 2d 423, 425 (Fla. 2d DCA 1973); see Pimm v. Pimm, 601 So. 2d 534, 536 (Fla. 1992). Generally, to justify an alimony modification, the moving party must establish: (1) 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. Pimm, 601 So. 2d at 536; Eisemann v. Eisemann, 5 So. 3d 760, 762 (Fla. 2d DCA 2009); Antepenko v. Antepenko, 824 So. 2d 214, 215 (Fla. 2d DCA 2002); Rahn v. Rahn, 768 So. 2d 1102, 1105 (Fla. 2d DCA 2000). We examine the trial court's ruling for an abuse of discretion. See Leonard v. Leonard, 971 So. 2d 263, 266 (Fla. 1st DCA 2008); see also Thyrre v. Thyrre, 963 So. 2d 859, 861-62 (Fla. 2d DCA 2007) ("`Retroactivity is the rule rather than the exception . . . .'") (quoting DeSantis v. Smith, 634 So. 2d 796, 797 (Fla. 4th DCA 1994)).

There is no quarrel that an uncontemplated substantial change in circumstances occurred. The change is material and sufficient. See, e.g., Antepenko, 824 So. 2d at 215 (noting that a thirty-eight percent change in circumstances met the substantial change in circumstances test). The Former Wife argues that the trial court should have denied modification because the income reduction was neither involuntary nor permanent.

Courts require that a change in circumstances be involuntary to ensure that the payor spouse does not deliberately avoid his support obligations. See Vazquez v. Vazquez, 922 So. 2d 368, 372 (Fla. 4th DCA 2006). The payor spouse must act in good faith to retain income that would allow him to meet his financial obligations. See Laliberte v. Laliberte, 698 So. 2d 1291, 1293 (Fla. 5th DCA 1997) (explaining that change in circumstances was not voluntary where the former husband did not quit his medical practice in Florida to voluntarily reduce his income, but rather because of business necessity and economic downturns; actions were not deliberate and were not done to avoid paying alimony and child support); Thomas v. Thomas , 589 So. 2d 944, 947 (Fla. 1st DCA 1991) (discussing the "clean hands doctrine"; where former husband's business was anything but thriving and he tried to find alternative employment as a lawyer and worked with a consultant and head hunter, he exhibited good faith nature of his job search). To be sure, the Former Husband sold his practice to VCA. However, the realities of his practice compelled him to seek an alternative to what had become a grinding practice model. The record supports the trial court's conclusion that business exigencies prompted the sale, the consideration received was reasonable, the sale enabled the Former Husband to continue working as a veterinarian until retirement age, and the sale proceeds ensured long-term security for both the Former Wife and the Former Husband.

There is no evidence that the Former Husband manipulated his finances to deprive the Former Wife of support. Rather, the Former Husband responded to unexpected business circumstances that presented a dearth of reasonable alternatives for solutions. The Former Husband needed to continue in practice. He was nearing retirement age and realistically could not maintain the current practice pace. The sale to VCA was a fitting solution to the dilemma.

Although the Former Husband did not retire, we observe that involuntariness of income loss may no longer be a bright-line requirement for alimony modification. In Pimm, the supreme court held that voluntary retirement is a change of circumstances that may be considered, together with other...