Opinion
1D2021-3358
09-18-2024
David T. Beans, Appellant, v. Amy S. Beans, Appellee.
Jessica L. Scholl of Moore, Hill &Westmoreland, P.A., Pensacola, for Appellant. Therese Felth McKenzie of McKenzie Law Firm, P.A., Pensacola, for Appellee.
Not final until disposition of any timely and authorized motion under Fla. R. App. P. 9.330 or 9.331.
On appeal from the Circuit Court for Escambia County. Lacey Powell Clark, Judge.
Jessica L. Scholl of Moore, Hill &Westmoreland, P.A., Pensacola, for Appellant.
Therese Felth McKenzie of McKenzie Law Firm, P.A., Pensacola, for Appellee.
TANENBAUM, J.
Former husband David Beans appeals a final order modifying the amount of alimony owed his former wife, Amy Beans, under a dissolution judgment incorporating the pair's marital settlement agreement ("MSA"). He does not contest the fact of modification, having himself petitioned for it. Nor does he suggest an insufficiency in the evidence supporting the circuit court's findings, on which its ultimate determination was based. Instead, he contends the circuit court did not reduce the alimony enough, relying almost exclusively on section 61.08, Florida Statutes (2019), (the State's primary alimony statute) to argue that the modification erroneously puts the former couple's respective financial circumstances significantly out of balance. David's appeal effectively treats the modification order as if it were a new alimony award, an approach Amy and the circuit court seemingly adopted as well, yet one that is contrary to the plain terms of the only applicable statute-section 61.14, Florida Statutes. The circuit court's modification nevertheless reflects a proper exercise of discretion in this chancery matter based on the unchallenged factual findings. We affirm.
All citations to the Florida Statutes are to the 2019 version unless otherwise noted.
I
Determination of an original award of alimony and a later modification are two separate functions, relying on different considerations. When a circuit court originally sets out to determine an alimony award in a dissolution proceeding, it first assesses "whether either party has an actual need for alimony [] and whether either party has the ability to pay alimony." § 61.08(2), Fla. Stat. Then the court must consider "all relevant factors, including, but not limited to" those listed in paragraphs (a) through (j) under that subsection. Id. (2)(a)-(j). At all events, that original "award of alimony may not leave the payor with significantly less net income than the net income of the recipient unless there are written findings of exceptional circumstances." Id. (9). Once that award is determined and made part of a final decree, and the time for taking an appeal has expired, it becomes "final and absolute," the court losing "the power to amend, modify, or alter the principles of such final decree." Mabson v. Christ, 119 So. 131, 133 (Fla. 1928); see Pace v. Pace, 128 So. 488, 489 (Fla. 1930) (explaining how, once a chancery decree becomes final, it "cannot be changed, added to, nor taken from . . . without resorting to the recognized processes of equity, based upon appropriate grounds"); Morrison v. Morrison, 122 So.2d 199, 201 (Fla. 1st DCA 1960) ("Although the court retains the power to modify by subsequent order the time or manner of the enforcement of a final decree after it has become final, under our rules it does not retain the power, unless specifically provided by statute, to amend, modify or alter the principles of such final decree."); cf. Frazier v. Frazier, 147 So. 464, 465-66 (Fla. 1933) (explaining that even a custody decree stemming from a dissolution "is nevertheless a final decree of the court on the conditions then existing, and is not to be materially amended or changed afterward, unless on altered conditions shown to have arisen since the decree, or because of material facts bearing on the question of custody and existing at the time of the decree, but which were unknown to the court, and then only for the welfare of the child").
Indeed, the statutes governing the functions each developed independently. The primary provision governing alimony modifications, currently section 61.14(1), has remained substantively the same since 1965. Cf. § 65.15, Fla. Stat. (1965) (authorizing alimony modifications "as justice and equity shall require, with due regard to the changed circumstances and the financial ability of the husband, decreasing or increasing or confirming the amount of separate support, maintenance or alimony provided for in such agreement, or in such decree" and prohibiting any modification proceedings except "otherwise than as herein provided"). The same cannot be said for the provision governing the original determination of alimony awards, currently section 61.08(2). In 1965, the predecessor to that provision required "every decree of divorce" simply to address alimony "as from the circumstances of the parties and nature of the case may be fit, equitable and just." § 65.08, Fla. Stat. (1965). The Legislature changed what must be considered for a "proper award of alimony" in 1971, to "any factor necessary to do equity and justice between the parties." See ch. 71-241, § 10, at 1323, Laws of Fla. (adding subsection two to current section 61.08). The first enumeration of "relevant economic factors" that had to be considered as part of the determination under subsection two was added in 1978. See ch. 78-339, § 1, at 945, Laws of Fla. Other factors were added to section 61.08(2) over the years since then, but not once to section 61.14(1).
This provision is a relatively new addition, the Legislature adding it in 2011. See ch. 2011-92, § 79, Laws of Fla.
There is good reason for this finality. The supreme court explained it nearly a century ago as follows:
Public policy and the interest of litigants alike require that there be an end to litigation, and the peace and order
of society demand that matters distinctly put in issue and determined by a court of competent jurisdiction as to parties and subject matter shall not be retried between the same parties in any subsequent suit in any court.Town of Boca Raton v. Moore, 165 So. 279, 282 (Fla. 1936) (internal quotation and citation omitted). "The doctrine of res judicata not only puts an end to strife, but produces certainty as to individual rights and gives dignity and respect to judicial proceedings which otherwise would be endless." Id.; cf. Chastain v. Chastain, 73 So.2d 66, 68 (Fla. 1954) (noting that once dissolution decree awarding alimony had become final, "[t]he needs, abilities and faculties of the parties were settled" and became "res adjudicata," save for later modification "in accordance with the public policy of the State").
To further ensure this finality, courts give "a presumption in favor of the reasonableness of the original decree." Wade v. Hirschman, 903 So.2d 928, 932-33 (Fla. 2005) (internal citation omitted). This presumption, in turn, only "may be overcome when changes in circumstances have arisen which warrant and justify modification of the original decree." Id. (internal citation omitted); see also Chastain, 73 So.2d at 68 (allowing for a modification of a final alimony award only if there is "a strong showing" that the payor spouse's "ability to pay has depreciated," taking into consideration not just income but also "the nature of his capital assets").
While section 61.08 governs the original determination of the alimony award, section 61.14 is a legislative codification of the need for later flexibility to account for changed circumstances. Indeed, by its own express terms, section 61.14 reflects the "existing public policy" of the State regarding modification of final awards of alimony. § 61.14(3), Fla. Stat. In considering a request for modification, then, the circuit court does not start from scratch and is not governed by section 61.08, which controls the original alimony award "[i]n a proceeding for dissolution." § 61.08(1), Fla. Stat. The statutory development of both statutes, discussed earlier in the margin, reflects the difference between how the two operate. To be clear on this point, modification instead proceeds exclusively under section 61.14, as the Legislature's enactments have anticipated since at least 1965. See § 61.14(1), Fla. Stat. (providing for modification of "an agreement for payments for, or instead of, . . . alimony" or a "court order" requiring "any payments," when "the circumstances or the financial ability of either party changes"); see also id. (2) (stating that "[n]o person may commence an action for modification of a[n] . . . alimony agreement or order except as herein provided" (emphasis supplied)); § 61.08(8), Fla. Stat. (providing that "[a]n award [of permanent alimony] may be modified or terminated based upon a substantial change in circumstances . . . in accordance with s. 61.14 " (emphasis supplied)).
The Legislature added the highlighted provision in 2010 as part of a codification of this separation, adding requirements that several types of alimony be modified "in accordance with s. 61.14." See ch. 2010-199, § 1, Laws of Fla.
Against this historical backdrop, section 61.14(1) gives the circuit court "jurisdiction to make orders as equity requires, with due regard to the changed circumstances or the financial ability of the parties . . . decreasing, increasing, or confirming the amount of separate . . . alimony provided for in the agreement or order." This statutory provision gives the circuit court, sitting in chancery, considerable equitable discretion, and we typically will not interfere unless the record shows that the court's determination was not within the range of reasonable decisions based on the record. See Canakaris v. Canakaris, 382 So.2d 1197, 1202 (Fla. 1980) ("The judge possesses broad discretionary authority to do equity between the parties...."); id. at 1203 ("Discretion, in this sense, is abused when the judicial action is arbitrary, fanciful, or unreasonable, which is another way of saying that discretion is abused only where no reasonable man would take the view adopted by the trial court. If reasonable men could differ as to the propriety of the action taken by the trial court, then it cannot be said that the trial court abused its discretion."). David does not argue a lack of evidentiary support behind the circuit court's factual findings, just the court's conclusions and exercise of discretion, so we limit our review to an assessment of whether that discretion was abused.
II
Married in 1995, David and Amy signed the MSA as part of their divorce proceedings, an agreement the circuit court approved and incorporated into its dissolution decree in August 2018. Under the MSA, the decree obligated David to pay $3,000 a month in permanent periodic alimony and $1,200 a month in child support.Amy also would receive 40.47 percent of David's military retirement pay. At the same time, the MSA stipulated to an
The child has since reached majority, so this payment is not at issue.
understand[ing] that [David] will be retiring from the military in June of 2019 and does not know what his income will be at that time. If/when a modification action is filed, the parties agree to submit in good faith to informal dispute resolution with their respective counsel of choice as quickly as possible in an attempt to resolve the issue.Finally, per the MSA, the decree divided retirement and financial accounts and gave each spouse certain accounts "free and clear" from the other spouse.
As contemplated, David retired from the military and set on a path of transition to employment in academia. Around the same time, on July 1, 2019, David filed a petition to modify or eliminate the alimony award decreed a year earlier. While the petition was pending, with Amy's agreement, David began to pay nominal alimony every month while he pursued his doctorate and worked as a teaching assistant. Both Amy and David relied on David's military retirement payments for income, David's net income (the retirement payments combined with his teaching pay) hovering between $4,500 and $5,600, producing a surplus between $220 and $1,320; Amy's net income remaining steady (a combination of her share of David's military retirement and her own income from employment), resulting in a monthly deficit of $1,869 without the alimony. David obtained the doctorate degree in December 2019, but he continued to pay only nominal alimony for months afterward while he worked as a teaching assistant through May 2020, took the summer off, and started work in August as an assistant professor at a small university in North Carolina. Amy incurred significant debt to cover her living expenses in the absence of the monthly alimony during this time, to the tune of $39,000: $16,000 against her 401(k) and $23,000 on credit cards.
The circuit court calculated the modified alimony going forward based on the financial picture as it appeared in fall 2020. David's net income-a combination of that military retirement, as before, and his income from the new assistant-professor position- came out to be $7,091. Adjusting some of David's claimed expenses, the circuit court found he had a monthly surplus of $1,699, a surplus it found could increase to $2,271 if David reduced or eliminated certain expenses that appeared to be excessive or unnecessary: lawn care, clothing, gifts, sports and hobbies, entertainment, and bank charges. David carried a mortgage on a new house in North Carolina, a car loan, and $15,600 in credit card debt to purchase new furniture. Accounting for the $51,957 in cash and $110,190 in retirement savings David had, the circuit court calculated his net worth to be $174,173.
Amy's financial picture was not as rosy. Her net monthly income was $5,830, made up of both her work pay and the cut of David's military retirement. Despite Amy's cutting her expenses by $3,000 since the dissolution decree, her monthly deficit (again, without the alimony) was $1,869, after adjusting for some of her other claimed expenses. Amy carried a mortgage on a townhouse, the debt from covering her living expenses while David was not paying alimony, an open balance with her lawyer, and a car loan; leading the court to calculate Amy's negative net worth at $1,700 after accounting for her $598 in cash and $66,373 in net retirement savings. As part of its "weighing the equities," the circuit court considered the circumstances that led to a decline in Amy's standard of living and negative net worth after the dissolution decree-from her having "maxed out" credit cards and borrowed against her retirement, her reduction in expenses, and her move to a two-bedroom townhouse-contrasted against the improvement in David's standard of living during the same time period and a net worth of $174,173-due to his new four-bedroom house, $15,600 in new furniture, and significant cash and retirement savings on hand. In a supplemental decree modifying the alimony award, dated December 23, 2020, the circuit court concluded Amy still needed permanent alimony, but it reduced the monthly amount to $1,869 (down about 38 percent from the original award), an amount David could cover with his monthly surplus after reducing some of the expenses it identified, and, if necessary, some of his liquid assets.
Section 61.14(1)(a) allowed the circuit court to make its modification "retroactive[] to the date of filing of the action or supplemental action for modification as equity requires, giving due regard to the changed circumstances or the financial ability of the parties or the child." (emphasis supplied). Rather than make the modification retroactive to July 1, 2019, the circuit court instead set February 1, 2020, as the effective date, the court giving greater weight to Amy's testimony that the two parties agreed to nominal alimony for only a six-month "cooling off" period running from David's retirement until he received his doctorate; not until August 2020, when he obtained the permanent assistant professorship, as David testified. In addition to its ordering David to pay Amy $1,869 in monthly alimony going forward (starting January 2021), the court ordered David to pay Amy what he owed her retroactively and cumulatively based on that amount, looking back eleven months to February 2020, amounting to $20,559.
Any amount of alimony David might still have owed under the original decree would have been obviated by the modification, a windfall to David of approximately $18,000 in alimony payments effectively waived by Amy and not recaptured in the modification order. See § 61.14(2), Fla. Stat. (providing that once an award is modified under the statute, "the party having an obligation to pay shall pay only the amount of . . . alimony directed in the new order," the original award being "modified accordingly").
The circuit court concluded David had the ability to pay the modified alimony during the look-back period. For February, March, and April of that year, the court calculated David's net monthly income to be around $5,600 (that again being without the alimony obligation), his monthly income surplus in turn being $1,320 during that period. For May the court reduced David's net monthly income to $4,500, and his surplus to $220. The court found that for the period between June 1, 2020, and August 12, 2020, during which David had no income, his unemployment was voluntary, David having made no effort to find work. Accordingly, the court imputed minimum wage to David for that period ($1,499 gross per month), calculating his net income to have been $3,832 after adding in the military retirement payments and finding an income deficit of $203. The court noted that despite David's having run an income surplus for most of the look-back period, and his having maintained significant cash and retirement savings on hand, he had made "no effort to assist" Amy starting in February 2020, still having paid her only nominal alimony, thereby "forcing her to borrow against her retirement savings and incur credit card debt to cover her basic living expenses."
In addition to reducing the alimony award to $1,869 and awarding Amy $20,559 in retroactive alimony based on that new amount, the circuit court granted her request for attorney's fees under section 61.16, Florida Statutes, awarding her $14,043, finding that she had a need, and David had an ability to pay.
This appeal followed.
III
David contends the circuit court erred in four ways. First, he points to what he contends is the significant imbalance in the parties' respective net income that results from increasing Amy's income by the $1,869 monthly alimony and decreasing his by the same amount, asserting this violates the proscription in section 61.08(9) against "leav[ing] the payor with significantly less net income than the net income of the recipient unless there are written findings of exceptional circumstances." Second, he contends that the modified monthly alimony, the retroactive alimony, and the attorney's fee award each erroneously exceed his current net income-or at least his surplus-meaning he would have to "deplete" his assets to cover the difference, something he says he should not have to do. Relatedly, for his third argument, he asserts the order to pay $20,559 in retroactive alimony was inconsistent with his available income during the relevant period and effectively presumed that he could have expended assets to pay alimony in determining his ability to pay the modified amount looking backward. Finally, for his fourth argument, David contends that because the modified alimony amount "leaves [him] in no better position than [Amy] to pay" fees under section 61.16, "depleted his capital assets," and "disregarded" his credit-card obligation for the furniture purchase and other expenses, there was no basis to award Amy attorney's fees.
We reject all these arguments because they are rooted in considerations pertinent to an original determination of alimony, not a later modification of an earlier award. Yes, the order on appeal tracks section 61.08(2), the order carefully addressing each of the considerations (a) through (j) enumerated under that subsection. It did so despite section 61.08 having no application at all, as section 61.14 by its own terms is exclusive in its application to modifications. When we say that section 61.08 is not applicable to modifications, though, we do not mean that the considerations in the ten statutory paragraphs of subsection two are inappropriate in that context, just that they are not all required or even always relevant. At all events, we can still affirm, notwithstanding the circuit court's reliance on the wrong statute, if it reached a conclusion falling within the range of reasonable outcomes under the applicable statute-section 61.14 in this instance. Cf. Chase v. Cowart, 102 So.2d 147, 150 (Fla. 1958) (noting that "[d]ecrees and judgments in cases which come to an appellate court for review are presumed to be correct and free from error," the appellate court then being "required to uphold the lower court if valid grounds exist therefor," not because the trial court or chancellor "traveled the proper route, used proper reasoning, or laid his conclusion on proper grounds, but rather on whether his conclusion is correct or incorrect"); In re Yohn's Estate, 238 So.2d 290, 295 (Fla. 1970) (explaining "that the theories or reasons assigned by the lower court as its basis for the order or judgment appealed from, although sometimes helpful, are not in any way controlling on appeal," the appellate court making "its own determination as to the correctness of the decision of the lower court, regardless of the reasons or theories assigned therefor," and affirming even "if the lower court assigns an erroneous reason for its decision . . . where there is some other different reason or basis to support it"); Applegate v. Barnett Bank of Tallahassee, 377 So.2d 1150, 1152 (Fla. 1979) ("Even when based on erroneous reasoning, a conclusion or decision of a trial court will generally be affirmed if the evidence or an alternative theory supports it."); Dade Cnty. Sch. Bd. v. Radio Station WQBA, 731 So.2d 638, 644 (Fla. 1999) ("Stated another way, if a trial court reaches the right result, but for the wrong reasons, it will be upheld if there is any basis which would support the judgment in the record.").
In saying this, we are not overlooking Schang v. Schang, 53 So.3d 1168 (Fla. 1st DCA 2011); it is just not applicable anymore. The court in that opinion does quote Wolfe v. Wolfe, 953 So.2d 632, 636 (Fla. 4th DCA 2007), for the following proposition: "When determining the amount of alimony to be ordered based on a change of circumstances, the trial court is to consider all of the relevant factors listed in section 61.08(2), Florida Statutes." Schang, 53 So.3d at 1170 (also citing Overton v. Overton, 34 So.3d 759, 761 (Fla. 1st DCA 2010)). But the underlying petition for modification necessarily pre-dated the 2010 addition of the crossreference to section 61.14. Cf. ch. 2010-199, § 2, Laws of Fla. (limiting the effectiveness of amendments to modifications of initial awards entered after July 1, 2010, and to cases filed on or after that date). Even if there was some turbidity in the statute for the court in Schang, Wolf, and Overton about the applicability of section 61.08 to modifications (despite the mention of exclusivity in section 61.14), the Legislature cleared that up with the 2010 amendments, a clarification that should at least have been addressed in Schang, rendering the quoted proposition superseded and obsolete. This is not "shrug[ging] off" precedent, as the dissenting opinion tries to put it; this is our being faithful and true to the prevailing substantive law, as reflected in the latest applicable version of the statutory text enacted by the Legislature. The dissent offers nothing in the way of legal analysis on why section 61.14 should not control the outcome in this case.
And in this appeal, we do just that-affirm. To be clear, we do so under section 61.14, not section 61.08, because both these provisions require application of the former, as we already have covered. David's primary argument, then-the modification effectively still leaves an income differential that fails to comport with the comparative net-income limitation of section 61.08(9)- finds no purchase here. Cf. Canakaris, 382 So.2d at 1202 (noting "distinction between an incorrect application of an existing rule of law and an abuse of discretion," the failure "to apply the correct legal rule" in an alimony matter being "erroneous as a matter of law [and] not an abuse of discretion"). That leaves us reviewing the circuit court's exercise of the broad discretion we previously noted it possessed for determining the appropriate disposition of David's petition. Id. (noting that "the manner of appellate review is altogether different" if "the action of the trial judge is within his judicial discretion," as provided by law, "as in the establishment of the amount of alimony or award of child custody"). The circuit court, after all, was sitting in chancery when it made its determination. See § 61.011, Fla. Stat. ("Proceedings under this chapter are in chancery."); cf. Canakaris, 382 So.2d at 1202 ("The judge possesses broad discretionary authority to do equity between the parties....").
It is confounding for the dissent to suggest we exceed our authority by applying the operative statute-clearly and exclusively operative here by the statute's express terms-in our determination of this appeal, particularly when we are confronted with an argument for reversal based on an expressly inapplicable statute. The "principle of preservation" is not in play when an appellate court affirms. The string cite in the preceding paragraph of the body makes this point clear. There is nothing more to say on this, perhaps except to note the supreme court's observation "that the theories or reasons assigned by the lower court as its basis for the order or judgment appealed from . . . are not in any way controlling on appeal and the Appellate Court will make its own determination as to the correctness of the decision of the lower court." In re Yohn's Estate, 238 So.2d at 295. We are left to wonder, then, whether the dissent instead is trying to advance a wholly different proposition: that we must simply affirm without opinion-or, as the dissent says, "without even reaching the merits"-if the legal point on which we would rely in support, one squarely refuting an appellant's argument for reversal, nevertheless was not raised by the appellee in the trial court or on appeal. None of the decisions cited in the dissent-not Rosier, and not any of those listed in the margin-support this counterintuitive theory; we suspect there in fact is nothing in support out there to be found.
This said, we see nothing "arbitrary, fanciful, or unreasonable" about how the circuit court went about its work in this case. Canakaris, 382 So.2d at 1203. Indeed, the court conducted itself the way we would expect of an equity court. Cf. id. at 1202 (defining "judicial discretion" in an equity context to be that "power exercised by courts to determine questions to which no strict rule of law is applicable but which, from their nature, and the circumstances of the case, are controlled by the personal judgment of the court," a power granted to circuit judges in domestic relation proceedings "because it is impossible to establish strict rules of law for every conceivable situation which could arise in the course of a domestic relation proceeding," and the "judge can ordinarily best determine what is appropriate and just because only he can personally observe the participants and events of the trial" (emphasis supplied) (internal citation and quotation omitted)).
The circuit court properly considered David's supplemental petition with the initial presumption that the dissolution decree's original alimony award was reasonable, Wade v. Hirschman, 903 So.2d 928, 932-33 (Fla. 2005); the decree being "final and absolute," Mabson v. Christ, 119 So. 131, 133 (Fla. 1928), and the award having become "res adjudicata" as to the "needs, abilities, and faculties of the parties" as they existed at the time the decree was rendered, Chastain v. Chastain, 73 So.2d 66, 68 (Fla. 1954). Though the circuit court did not explicitly reference section 61.14 as the sole fount of its authority to consider David's request for modification, it sufficiently recognized it could modify the otherwise final order to equitably meet the substantial change in financial circumstances-albeit fully anticipated by the parties at the time of the final decree-demonstrated through the evidence presented, which it meticulously set out to do. Cf. Chastain, 73 So.2d at 68 (explaining that "the Chancellor may on examination of the husband's sources of income modify alimony decrees if there is a strong showing that the husband's ability to pay has depreciated," cautioning that "[a] final decree of divorce awarding alimony should not be modified as to alimony without a strong showing that the husband's ability to pay has depreciated").
Rather than treat David's petition as a request for a do-over, the court took the parties where it found them and considered the entirety of what occurred to bring them there. The court ultimately drew on the factors set out in section 61.08(2), but its consideration of "the financial resources of each party," each party's "sources of income," and "other factor[s] necessary to do equity and justice between the parties," including the parties' respective standards of living relative to their shared standard of living during the marriage, closely tracked what section 61.14 requires for a modification-to an extent that "equity requires," with "due regard to the changed circumstances or the financial ability of the parties." We "fully recognize the superior vantage point of" the circuit court here, asking simply whether reasonable minds could "differ as to the propriety of the action taken." Canakaris, 382 So.2d at 1203. There was nothing unreasonable about how the court reached the disposition reflected in the order on review. The circuit court's modification-done in an earnest attempt to do equity by both parties in its own judgment-being firmly within the realm of reasonable outcomes, there is no basis for us to intervene.
These considerations came as part of the court's run-through of the factors enumerated in section 61.08. See § 61.08(2)(a), (d), (i), (j), Fla. Stat.
A last point remains for us to address. In addition to section 61.08(9), David relies heavily on this court's decision in Galligar v. Galligar, 77 So.3d 808 (Fla. 1st DCA 2011), advancing an alternative attack-a plaint about his having to use some of his assets to cover the cumulative amount of alimony and fees owed to Amy under the modification order. The reasoning in that case is inapposite here. In Galligar, the court reversed the modification order because it failed to adequately account for the former husband's changed financial status, such that even with the modification, he still was left with having to "borrow funds" or "deplete" or "exhaust" his assets to cover the modified payments, an "inequitable" result. Id. at 812. Galligar is an outlier case, its most distinguishing fact being the severity of the former husband's dire financial outlook. He unexpectedly had lost his job, was still carrying two mortgages, was running a monthly income deficit, and had to borrow money in part to cover his alimony payments. Even with the modification ordered by the circuit court, the "burn rate" on his assets to cover the difference between his available income and the new alimony obligation clearly was going to quickly lead to exhaustion of everything the former husband had. This court justifiably intervened in a situation where the modification left the former husband in a financially crushing position an order in equity should have alleviated.
The opinion also did not address a specific application of section 61.14. As with Schang, we read Galligar's reliance on the factors of section 61.08(2)-if it considered them mandatory-to have been superseded by the Legislature's nearly contemporaneous addition to section 61.08 of the cross-reference to section 61.14 for modifications, mentioned earlier in the margin. Cf. ch. 2010-199, § 2, Laws of Fla. (making the statutory additions of "in accordance with s. 61.14" effective for "initial awards" entered on or after July 1, 2010, and for modifications to such post July 1 awards). The cross-reference would not have been applicable in Galligar at all events, yet the failure to mention the recently added cross-reference is another basis for distinguishing it. Similarly, it relied heavily on prior decisions stemming from either temporary awards or final awards of alimony, rather than modifications under section 61.14. Indeed, the one decision it cites dealing with modification reversed an order that wholly denied a request based on an involuntary job loss, determining that the payor spouse still could "deplete his assets" to cover the original alimony award. Austin v. Fernandez, 898 So.2d 118, 119 (Fla. 3d DCA 2005). Far from setting out a general equitable principle that alimony modifications cannot rely on the use of assets in addition to income, Galligar is a decision on the margin, standing for the much more limited proposition that for a modification to be equitable in the end, it cannot leave the payor spouse on a trajectory that prompted the supplemental petition, still careering toward ineluctable financial ruin via a quick and complete drain of available personal capital. In this way, Galligar can be reconciled with Chastain. Cf. Chastain, 73 So.2d at 68 (observing that "[i]ncome alone is not necessarily the test in determining ability to pay," the chancellor also needing to "consider the nature of [the husband's] capital assets").
That is not the situation we have here. The circuit court did grant David's request to modify, and it reduced the alimony payment by nearly 37 percent. In making the reduction, the circuit court considered David's available assets-that is, his overall financial situation-but did not contemplate or require David to function with no income, drain his bank accounts, take out a loan, or exhaust his other assets. In fact, that is not what David even argues is the error. His complaint is that despite the modification, he will have to draw on some of his positive net worth, and not just his income, to cover his revised obligation to Amy. To adopt a rule like David urges would be to allow a payor spouse to bank unpaid alimony for a time, under the auspices of financial stress, then request a modification and escape the payee spouse's claim to the accreted assets for back-alimony owed.
* * *
The undisputed facts paint a tableau in which David consistently appears as the former spouse in the far superior financial position. Simply put, there is no equitable principle that requires a disposition different from the one reached by the circuit court under the circumstances of this case, including the award of fees under section 61.16. The circuit court conducted itself in a manner wholly appropriate for chancery, and it made the considerations demanded of it by statute. The discretion the court exercised to meet the changed circumstances before it was well within the range of reasonable outcomes, and we will not second guess it.
AFFIRMED.
RAY, J, concurs; KELSEY, J., dissents with opinion.
KELSEY, J., dissenting.
Former Husband filed his appeal on October 28, 2021, nearly three years ago.
He argued on appeal, as he had before the lower tribunal, that the modification of his alimony obligation and the award of retroactive alimony improperly left him with "significantly less net income than" Former Wife; required him to go into debt each month; and, with respect to attorney's fees, that the parties' respective financial positions must be reevaluated in light of any new alimony amounts. He and Former Wife alike relied solely on section 61.08 of the Florida Statutes and case law applying that statute, and the lower tribunal followed that governing law. Section 61.14 of the Florida Statutes, which the majority invokes and applies, was never so much as cited below or on appeal. On the record and governing legal authorities asserted below and on appeal-i.e., the precedent the majority shrugs off in its footnote 7 and throughout-I would reverse.
I daresay our previous stalwart commitment to the principle of preservation-reflecting the requirements of due process and the limitations of judicial restraint-has required us to affirm tens of thousands of cases without even reaching their merits. We typically respect our own boundaries, and assiduously avoid becoming counsel for a party or injecting our own personal opinions of law and procedure into cases as if our robes clothed us with legislative and executive powers and the freedoms of academic commentators, and the right to exercise those powers and freedoms as our curious roving eyes might see fit. See, e.g., Rosier v. State, 276 So.3d 403, 406 (Fla. 1st DCA 2019) (collecting cases).
See also Jones v. U.S. Bank Tr., N.A. as Tr. For LSF9 Master Participation Tr., 292 So.3d 459, 462 (Fla. 2d DCA 2020) ("Nor do we ordinarily address a novel legal issue that was never raised or ruled upon in the trial court.") (citing P & O Ports Fla., Inc. v. Cont'l Stevedoring & Terminals, Inc., 904 So.2d 507, 511 (Fla. 3d DCA 2005) ("Prudence alone suggests that an appellate court should not resolve a complex case, such as this one, on an issue that was not addressed by the litigants and not ruled upon below. Judicial restraint requires it.")); Delisso v. Delisso, 821 So.2d 350, 355 (Fla. 1st DCA 2002) (Browning, J., dissenting) (acknowledging "jurisdiction, public policy, and illegality" issues may require sua sponte intervention, but intervening in a private agreement (an MSA) created an "unintended byproduct"-"the impression that the court is a part of the adversarial process rather than a neutral judicial arbitrator"); Miller v. Miller, 709 So.2d 644, 645 (Fla. 2d DCA 1998) ("We cannot address on appeal an issue not ruled upon by the circuit court.").
The majority nevertheless goes to great lengths to create a new argument as de-facto counsel for Former Wife, acknowledging contrary precedent, but not addressing the fact that no party raised the argument, the lower tribunal did not pass upon it, and this Court has not receded en banc from the sua-sponte-jettisoned precedent-not that it could do so validly, in this procedural posture where the argument has not been preserved. The majority opinion improperly does everyone else's jobs, including the lower tribunal's-and more-with no valid authority whatsoever.
See In re Rule 9.331, Determination of Causes by a Dist. Court of Appeal En Banc, Fla. Rules of App. Proc., 416 So.2d 1127, 1127-28 (Fla. 1982) (explaining there was no constitutional impediment to a district court's sitting en banc to resolve intradistrict conflict; noting "each three-judge panel of a district court of appeal should not consider itself an independent court unto itself, with no responsibility to the district court as a whole"; and holding each three-judge panel "should not overrule or recede from a prior panel's ruling on an identical point of the law," but not accepting recommendation to mandate this by court rule) (emphasis added); Sims v. State, 260 So.3d 509, 514 (Fla. 1st DCA 2018) (explaining panel was "powerless to [recede from precedent] absent en banc review," and every "panel decision is binding on future panels, absent an intervening decision of a higher court or this court sitting en banc") (citing Taylor Eng'g, Inc. v. Dickerson Fla., Inc., 221 So.3d 719, 723 n.3 (Fla. 1st DCA 2017)); see also Knowlton v. Knowlton, 282 So.3d 154, 155-56 (Fla. 1st DCA 2019) (refusing to recede from precedent, even if statutory change was "compelling argument," because appellant had not preserved the argument to recede).