Opinion
Case No. 5D19-359
04-17-2020
Paul James BEFANIS, Appellant, v. Lynne Marie BEFANIS n/k/a Lynne Marie Sommer–Befanis, Appellee.
Douglas D. Marks, of Douglas D. Marks, P.A., Indialantic, for Appellant. Clay D. Morgan, of Morgan & Barbary, P.A., Melbourne, for Appellee.
Douglas D. Marks, of Douglas D. Marks, P.A., Indialantic, for Appellant.
Clay D. Morgan, of Morgan & Barbary, P.A., Melbourne, for Appellee.
PER CURIAM. Paul Befanis (the former husband) appeals an order denying his petition to modify his alimony obligation to Lynn Befanis (the former wife). We reverse.
In 2010, a final judgment was entered dissolving the parties' long-term marriage. At the time of the final judgment, the former husband owned a successful ophthalmology business in which he also practiced as an ophthalmologist. Pursuant to the marital settlement agreement incorporated into the final judgment, the former husband was obligated to pay $12,500 per month to the former wife in alimony.
Five years later, the former husband filed for a downward modification of alimony noting that he sold his business, was under a five-year employment contract, and experienced a substantial decrease in income because he was now working as a salaried employee with no interest in the business. In the petition, the former husband stated that he was preparing for retirement as he was nearing sixty-five years of age.
Just over a year after the petition was filed, the parties entered into a stipulated final judgment, reducing the former husband's alimony to $7500 per month. The stipulated order did not provide any basis for the reduction in alimony.
Sixteen months after the entry of the stipulated order, the former husband filed another petition seeking a further reduction in the alimony amount. In the petition, the former husband alleged two changed circumstances to support the reduction. First, he noted that his five-year employment contract had ended; second, he had formally retired. The former wife answered the petition, denying that a substantial change in circumstances had occurred since the modification. The case then proceeded to trial.
The former husband testified that, at the time of the original dissolution proceeding, his monthly income had been in excess of $40,000 per month, and then, when the alimony was modified, he was earning approximately $350,000 per year. However, now that he had retired, his monthly net income had dropped to $5135 per month. The former husband also testified that although he was considering retirement at the time the court entered the stipulated modification order, he did not agree to that order in contemplation of his retirement income. Rather, according to him, he agreed to the terms of the stipulated order based on the reduction to his income following the sale of his business.
In contrast, the former wife testified that she understood that the former husband "was going to retire" at the time of the stipulated modification order and had agreed to that order based upon this presumption.
The trial court denied the former husband's request for a downward modification of alimony, finding that the former husband failed to prove a change in circumstances that was not contemplated at the time of the stipulated modification order. This appeal follows.
"[T]he appellate court's standard of review of an order modifying alimony is mixed." Bauchman v. Bauchman, 253 So. 3d 1143, 1146 (Fla. 4th DCA 2018) (citing Jarrard v. Jarrard, 157 So. 3d 332, 337 (Fla. 2d DCA 2015) ). "The trial court's legal conclusions are reviewed de novo." Id. (citing Jarrard, 157 So. 3d at 337 -38). As for the trial court's factual findings, the appellate court reviews the record to determine if they are supported by competent, substantial evidence. See Golson v. Golson, 207 So. 3d 321, 325 (Fla. 5th DCA 2016) (citing Jarrard, 157 So. 3d at 337 ).
A may petition for a modification of alimony based upon a change in circumstances or financial ability of either party. See § 61.14(1)(a), Fla. Stat. (2017). To be entitled to a modification of alimony, the petitioner must establish three prerequisites: 1) a substantial change in circumstances, 2) the parties did not contemplate the change when the initial alimony obligation was determined, or, if subsequently modified, at the time of the modification, and 3) the change is sufficient, material, involuntary, and permanent in nature. See Golson, 207 So. 3d at 325 ; see also Gelber v. Brydger, 248 So. 3d 1170, 1173 n.1 & n.2 (Fla. 4th DCA 2018) ; Dogoda v. Dogoda, 233 So. 3d 484, 488 (Fla. 2d DCA 2017).
In denying the former husband's modification petition, the trial court found that the stipulated order "was entered in contemplation of the Former Husband[']s pending retirement and therefore the parties had already contemplated the Former Husband's retirement and factored in that retirement in the prior reduction of alimony payments payable by the [Former] Husband." (Emphasis added). The former husband contends that this finding is not supported by competent, substantial evidence. We agree.
Although both the former husband and former wife testified that they anticipated the former husband's forthcoming retirement when the stipulated modification order was entered, there was no evidence that they contemplated the actual change and consequences to his income. See Mendes v. Mendes, 947 So. 2d 450, 452-53 (Fla. 4th DCA 2006). Notably, at the time of the modification, the former husband earned roughly $350,000 per year as a full-time salaried employee—an amount which, by all counts, is higher than his retirement income. The financial affidavits filed in the initial modification proceeding reflected the former husband's salaried income, and his petition in that proceeding did not discuss the financial circumstances surrounding his future retirement. Additionally, the stipulated modification order was silent as to the basis for the modified amount of alimony.
Accordingly, there was no competent, substantial evidence to indicate that the parties accounted for the former husband's future retirement income when they consented to the modification order. Therefore, we cannot agree with the trial court that the parties contemplated, considered, and factored in the former husband's retirement when they agreed to a downward modification of alimony. See Dogoda, 233 So. 3d. at 487-88 ; see also Bauchman, 253 So. 3d at 1146-48 ; Mendes, 947 So. 2d at 452-53.
Based upon the analysis above, we reverse the trial court's order denying the petition for modification and remand for further proceedings. Upon remand, the trial court shall determine, from the evidence introduced at trial, the amount of alimony based on the factors set forth in section 61.08(2), Florida Statutes (2017). See Donoff v. Donoff, 940 So. 2d 1221, 1223 (Fla. 4th DCA 2006).
At trial, the former husband stipulated that his alimony obligation should not be entirely eliminated. In determining the amount of alimony, the trial court may accept or reject testimony based on witness credibility.
--------
REVERSED and REMANDED for further proceedings.
EVANDER, C.J., COHEN and GROSSHANS, JJ., concur.