A Substantial and Unanticipated Change to Alimony Modification in Florida
Do you need to show a substantial and unanticipated change of circumstances to modify alimony in Florida? Maybe not.
The Telephone Game
Alimony modification law in Florida is like the “telephone game” children used to play in grade school. In the telephone game, a message would be whispered to you, and then you would whisper the message to the next child. This process would continue around a circle of children. By the time the message made its way to the last child in the circle, the contents of the message had completely changed from the original. Sometime “the law” develops this way. An appellate court interprets a statute, and then the next appellate court interprets the previous appellate court’s ruling. When you string enough of those decisions together, little by little, you can end up far from where you started. In a recent ruling, Florida’s 4th District Court of Appeals (4th DCA), ruled that the telephone game had gone to far. Specifically, that the focus in alimony modification cases needed to return to the wording of the statute. The link to the case is here: Brydger v. Brydger.
Florida’s Alimony Modification Statute
The statutory basis for alimony modification in Florida, is Section 61.14, Florida Statutes:
[E]ither party may apply to the circuit court . . . for an order decreasing or increasing the amount of . . . alimony, and the court has 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] alimony provided for in the agreement or order.
The “Unanticipated Change” Requirement
There are many appellate cases that have interpreted the statute. (The “case law”).
The case law usually requires proof of the following to justify an alimony modification:
(1) there has been a substantial change in circumstances, (2) the change was not contemplated at the time of the final judgment of dissolution, and (3) the change is sufficient, material, permanent, and involuntary.
Neither the statute, nor the rule rule discussed above, require an “unanticipated change of circumstances.” However, many appellate cases discuss whether the changed circumstance was “unanticipated.” In other words, if a change is “unanticipated,” it “was not contemplated.”
In the “telephone game” example, we start with the wording of the statue: “as equity requires, with due regard to changed circumstance.” We then move to the rule developed by case law interpreting the statute: “not contemplated.” And, we finally arrive at shorthand summary of the case law’s requirements: “unanticipated.”
Is an “Unanticipated Change” Required to Modify Alimony
In theory, many changes could be anticipated. For example, raises, promotions, fluctuations in the stock market, etc.
In the recent 4th DCA case, the alleged change in circumstance was a former spouse’s ability to take retirement distributions without penalty, and an increase in the value of investments. The former spouse, opposing the alimony modification, argued that neither of these changes was “unanticipated.” In other words, both of the claimed changes were both knowable facts at the time alimony was awarded. As such, these changes were not truly unanticipated.
When faced with these facts, the 4th DCA ruled that the use of the term “unanticipated” as a shorthand for “not contemplated” and “changed circumstances,” leads to a misinterpretation of what the statute requires to modify alimony. In other words, that the telephone game had gone too far.
The 4th DCA Clarifies the Alimony Modification Rule
What does the statute require?
The 4th DCA determined the whether or not a change was “contemplated,” simply refers to whether the changed circumstance was actually contemplated by the court at the time alimony was originally ordered. (Or, considered by the parties at the time they reached an agreement regarding alimony). In other words, was the circumstance actually considered. The 4th Circuit describes this principal as being akin to the doctrine of “collateral estoppel,” finding that a prior Florida Supreme Court case “focused not on what the parties should have anticipated, but on what was actually considered”.
For example, consider a situation where a divorcing spouse is attending college, and will likely obtain a higher paying job upon graduation. Based on the 4th Circuit’s ruling, it is immaterial whether this change is foreseeable, and therefore not “unanticipated.” Instead, the issue is whether the circumstance was contemplated by the Court at the time alimony was ordered. If the change was considered by the Court, then it cannot be the basis for an alimony modification. However, this same change could merit an alimony modification if the court had not actively considered the possibility.
Time will tell if the other appellate courts will adapt the 4th Circuit’s reasoning. From a practical standpoint this ruling opens the door for more alimony modifications. It also may result in more detailed descriptions (findings), regarding the circumstances surrounding alimony, in Final Judgments, and Marital Settlement Agreements.