127 So. 3d 762
Fla. Dist. Ct. App.2013Background
- Dissolution decree in 2003 ordered Driggers to pay $1,250 monthly permanent alimony.
- Driggers paid alimony until 2011; in late 2011 wife moved for contempt and he sought modification.
- Driggers’ business income declined ~40% since 2008–09; current net income $1,154 with expenses $1,168.
- Driggers has few assets; wife’s income exceeds $3,400 per month and she has property and retirement savings.
- Trial court denied modification and granted contempt; appellate court reverses and remands.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Modification standard met? | Driggers shows substantial, unanticipated change. | No substantial, enduring change; borrowing from business not sufficient. | Yes; substantial, uncontemplated change established. |
| Contempt evidence status? | Contempt supported by evidence of nonpayment. | No competent substantial evidence of nonpayment. | Contempt not supported; abuse of discretion. |
| Presumption of ability to pay? | Final judgment creates ability to pay; burden to show otherwise. | Driggers did show inability to pay. | Burden met; trial court erred. |
Key Cases Cited
- Antepenko v. Antepenko, 824 So.2d 214 (Fla. 2d DCA 2002) (substantial change may be material if likely permanent)
- Kossmann v. Kossmann, 550 So.2d 168 (Fla. 2d DCA 1989) (burden to prove changed circumstances)
- Bowen v. Bowen, 471 So.2d 1274 (Fla. 1985) (final judgment creates presumption of ability to pay)
- Connolly v. Connolly, 543 So.2d 356 (Fla. 2d DCA 1989) (reaffirms modification standards)
- Sabatini v. Wigh, 98 So.3d 244 (Fla. 1st DCA 2012) (civil contempt standard and presumption of correctness)
- Harris v. Hampton, 70 So.3d 747 (Fla. 4th DCA 2011) (presumption of correctness in contempt rulings)
- Rojo v. Rojo, 84 So.3d 1259 (Fla. 3d DCA 2012) (abuse of discretion standard in civil contempt context)
- Jaffe v. Jaffe, 17 So.3d 1251 (Fla. 5th DCA 2009) (abuse of discretion in contempt decision)
- Wilson v. Wilson, 37 So.3d 877 (Fla. 2d DCA 2010) (abuse of discretion review in modification)
- Leonard v. Leonard, 971 So.2d 263 (Fla. 1st DCA 2008) (consideration of total circumstances in modification)