77 So. 3d 808
Fla. Dist. Ct. App.2011Background
- Divorce finalized in 2005; alimony ordered at $5,000/month; husband employed at a chemical company earning $175,000/year.
- In 2009, husband’s employment ended; severance and new job later resulted in $66,000/year income.
- Husband petitioned on July 12, 2010 to modify alimony; both parties filed financial affidavits with differing income/expense figures.
- Sept. 27, 2010 hearing: husband claimed inability to pay $5,000; wife testified to income and expenses including mortgage and $1,033/month net income.
- Oct. 4, 2010 order reduced alimony to $3,500/month and required husband to pay $3,500 of wife’s attorney’s fees; amended order added findings about assets and borrowing.
- Court found alimony modification abused the donor’s ability to pay and awarded fees against husband; remanded for reconsideration of alimony and reversed fee award.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the alimony modification exceeded the payor’s ability to pay | Galligar argues $3,500 is beyond his ability | Wife argues need supports modification | Abuse of discretion; cannot exceed payor’s ability to pay; remand for reconsideration |
| Whether awarding attorney’s fees to wife was proper | Husband claims wife could pay her own fees | Court should award fees to ensure equal access to counsel | Reversed; trial court abused discretion in ordering fee payment by husband |
Key Cases Cited
- Canakaris v. Canakaris, 382 So.2d 1197 (Fla.1980) (needs and ability govern permanent alimony; modification possible on substantial change)
- Pirino v. Pirino, 549 So.2d 219 (Fla.5th DCA 1989) (need and ability to pay considered; cannot require payment beyond payor’s capacity)
- Rabbath v. Farid, 4 So.3d 778 (Fla.1st DCA 2009) (reiterates need/ability framework for alimony)
- Williams v. Williams, 10 So.3d 651 (Fla.5th DCA 2009) (alimony payments should not exhaust payor’s income)
- Squindo v. Osuna-Squindo, 943 So.2d 232 (Fla.3d DCA 2006) (high percentage of net income is abusive discretion)
- Gentile v. Gentile, 565 So.2d 820 (Fla.4th DCA 1990) (exhaustion of income or assets to meet alimony is improper)
- Acker v. Acker, 904 So.2d 384 (Fla.2005) (consider assets but do not require depletion to pay alimony)
- Konsoulas v. Konsoulas, 904 So.2d 440 (Fla.4th DCA 2005) (standard of living not maintained by depleting means; debt to satisfy alimony improper)
- Sheiman v. Sheiman, 472 So.2d 521 (Fla.4th DCA 1985) (reversing level of alimony when payor cannot pay)
- Austin v. Fernandez, 898 So.2d 118 (Fla.3d DCA 2005) (cannot require depletion of assets to satisfy alimony)
- Vitalis v. Vitalis, 799 So.2d 1127 (Fla.5th DCA 2001) (fees awarded where resources permit; equalize ability to obtain counsel)
- Naugle v. Naugle, 632 So.2d 1146 (Fla.5th DCA 1994) (equality in fee awards after equitable distribution)
- Pelton v. Pelton, 617 So.2d 714 (Fla.1st DCA 1992) (consider remand in fee issues after alimony decisions)
- McQuaig v. McQuaig, 36 So.3d 801 (Fla.1st DCA 2010) (trial court’s discretion to award fees in modification cases)