Opinion
Case No. 5D18-2449
04-24-2020
Peter HAEBERLI, Appellant, v. Ayla B. HAEBERLI, Appellee.
Peter Haeberli, Princeton, New Jersey, pro se. Ayla B. Haeberli, Glenwood, pro se.
Peter Haeberli, Princeton, New Jersey, pro se.
Ayla B. Haeberli, Glenwood, pro se.
EDWARDS, J.
Appellant, Peter Haeberli, appeals the supplemental final judgment which increased alimony for his former wife, Appellee, Ayla Haeberli and the child support for their son. After careful review of the parties’ briefs, the record on appeal, and controlling authority, we affirm the supplemental final judgment because the trial court's rulings are supported by competent substantial evidence and there is no showing that the trial court abused its discretion in any regard. We are unable to consider the requests for relief in Appellee's answer brief because she did not pursue a cross-appeal.
The parties have been involved in uninterrupted and contentious litigation since their divorce in 2008. In 2014, Appellee petitioned for increases in child support and alimony. In March 2017, Appellee filed a supplemental petition, which also sought increases in child support and alimony based upon her claim that substantial changes in the parties’ financial circumstances had occurred since the October 2008 final judgment dissolving their marriage. Appellant responded with a counterpetition in which he sought a reduction in both child support and alimony. An initial referral of the competing petitions to a magistrate did not resolve matters. Thus, the trial court conducted a three-day trial during which it received evidence concerning the needs of the child, the needs of Appellee, and the financial ability of Appellant to pay.
The parties’ son has a very serious medical condition which requires around-the-clock care by two people, the use of a wheelchair, and the administration of multiple medications. The parties agreed that they did not want to institutionalize their son, and preferred to have him cared for at home. Appellee has undertaken care of the son with the assistance of paid health care assistants.
As their son grew, his needs increased to the point that the home previously occupied by Appellee and the son was no longer sufficient in size nor was it wheelchair-accessible. Appellee's mother paid for a new, suitable house to be built, which she rents to Appellee for $2,500 per month. Likewise, the standard Toyota van that Appellee had previously used for transporting their son was no longer suitable, so she purchased a new, wheelchair-accessible van. Appellee has been able to arrange for twenty hours per week respite care by having an additional aide come to the house. Thus, in any given week, Appellee can be away from her son to attend to her own needs and routine events for no more than twenty hours.
Appellant provides health care insurance through his employer for their son, and Appellee has been able to obtain certain government sponsored health care and assistance for the son as well. However, Appellee testified during the modification hearing that there were often repeated denials and lengthy delays in benefit payments or reimbursements for their son's bills and needs. To compound this financial difficulty, when the private health insurer would pay benefits, Appellant arranged to have them sent to him, and he in turn kept the money rather than turning it over to Appellee. The trial court found that Appellant's belief that their son's medical needs were completely covered by private insurance, Medicaid, or other governmental sources was not accurate. Indeed, the trial court noted that "it would be hard-pressed to point definitively to any reasonable rock left unturned in the Mother's efforts to obtain help for the Child."
Because Appellee has to devote her full attention to the care of their son, the parties agree that it is impossible for her to work outside the home. On the other hand, Appellant was and is a successful attorney, who has remarried, had three children with his new wife, and lives with his new family in a million-dollar house in New Jersey.
Appellant argues that the trial court erred by not relying exclusively on the parties’ September 2008 marital settlement agreement (MSA) to determine whether the support payments and alimony should be modified based upon the changed financial circumstances. The trial court properly considered, as it should have, the language of the MSA and followed the MSA where applicable. See Bissell v. Bissell , 622 So. 2d 532, 533 (Fla. 1st DCA 1993). As the trial court noted in the supplemental final judgment, the MSA does describe certain circumstances under which child support or alimony could be modified. However, there was nothing in the MSA that made those provisions exclusive nor in any way limited or prohibited the application of the modification considerations found in chapter 61, Florida Statutes (2018), and related case law. The trial court's interpretation of the MSA is subject to de novo review. Kipp v. Kipp, 844 So. 2d 691, 693 (Fla. 4th DCA 2003) (quoting McIlmoil v. McIlmoil , 784 So. 2d 557, 561 (Fla. 1st DCA 2001) ). We agree with the trial court that the MSA did not provide the exclusive basis for modification of alimony or child support.
Furthermore, parents are not free to contract away the rights of their children as child support is a right that belongs to each child. Armour v. Allen , 377 So. 2d 798, 799–800 (Fla. 1st DCA 1979).
"To justify a modification of alimony, the moving party must establish: ‘(1) a substantial change in circumstances; (2) that the change was not contemplated at the final judgment of dissolution; and (3) that the change is sufficient, material, permanent, and involuntary.’ " Eisemann v. Eisemann , 5 So. 3d 760, 762 (Fla. 2d DCA 2009) (quoting Antepenko v. Antepenko, 824 So. 2d 214, 215 (Fla. 2d DCA 2002) ). Section 61.14(1)(a), Florida Statutes (2018), allows for the modification of a marital settlement agreement that awards alimony to a party in a dissolution proceeding if "the circumstances or the financial ability of either party changes." Rosenthal v. Rosenthal , 199 So. 3d 541, 542 (Fla. 1st DCA 2016). A trial court's order modifying alimony is subject to an abuse of discretion standard of review, and the court's factual findings will not be disturbed as long as they are supported by competent substantial evidence. Suarez v. Suarez , 284 So. 3d 1083, 1086 (Fla. 4th DCA 2019) (quoting Bauchman v. Bauchman , 253 So. 3d 1143, 1146 (Fla. 4th DCA 2018) ); Dunn v. Dunn , 277 So. 3d 1081, 1085 (Fla. 5th DCA 2019) (quoting Jarrard v. Jarrard , 157 So. 3d 332, 336 (Fla. 2d DCA 2015) ).
Here, the trial court determined that there had been significant changes in the parties’ relative financial situations and in their child's needs since execution of the MSA and entry of the original final judgment in 2008. The trial court found that Appellee's expenses have steadily and drastically increased as have the expenses for the child's care. Additionally, Appellant's income has gone up dramatically during that same time. The trial court considered the factors set forth in section 61.08 and included that analysis in the supplemental final judgment.
The trial court concluded that Appellee met her burden of proving there had been permanent, substantial, unanticipated changes that justified modification of both child support and alimony. Furthermore, the trial court determined that those changes had existed since 2014, justifying an award of retroactive alimony and child support. Likewise, the trial court addressed Appellant's failure to previously pay $10,000 towards Appellee's attorney's fees, and ordered him to pay that amount as well in the supplemental final judgment. Our review of the record confirms that there was competent substantial evidence supporting the trial court's findings and that there is no showing that the trial court abused its discretion.
We note that the total retroactive amount of child support and alimony together with the previously ordered attorney's fees is $109,620. The trial court ordered Appellant to make monthly payments of $750 towards that total. If he sticks to that schedule, it will take Appellant just over twelve years to pay it off. Because the timing and amount of those payments are within the trial court's discretion, we are not able to reverse and remand for entry of an amended order providing for a more compressed payment schedule in line with the proven needs and ability to pay.
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We note that Appellee raised certain issues in her answer brief that expressed either dissatisfaction with certain rulings in the supplemental final judgment or that sought relief as to various matters. However, we cannot consider those issues and matters because Appellee did not file a notice of cross-appeal as required by Florida Rule of Appellate Procedure 9.110(g). See Breakstone v. Baron's of Surfside, Inc. , 528 So. 2d 437, 439 (Fla. 3d DCA 1988) (noting that an appellee must submit a notice of cross-appeal identifying the portions of an order that the appellee seeks to review in order to challenge non-favorable portions of an order).
AFFIRMED.
HARRIS and TRAVER, JJ., concur.