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Suarez v. Suarez

Florida Court of Appeals, Fourth District

November 13, 2019

Pedro SUAREZ, Appellant,
Candice Murphy SUAREZ, Appellee.

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          Appeal from the Circuit Court for the Seventeenth Judicial Circuit, Broward County; Dale C. Cohen, Judge; L.T. Case No. FMCE12-002163.

         Amy D. Shield and Roger Levine of Shield & Levine, P.A., Boca Raton, for appellant.

         Owei Z. Belleh of The Belleh Law Group, P.L.L.C., Fort Lauderdale, for appellee.


         May, J.

          The former husband appeals an order terminating alimony, re-calculating child support, and modifying time-sharing. He argues the trial court erred in: (1) terminating alimony because the evidence did not support that decision and the court did not make the statutorily-required findings; (2) applying the gross-up method to calculate child support; and (3) modifying time-sharing. We agree in part and reverse in part. We remand the case to the trial court for further proceedings consistent with this opinion.

          The former husband and wife entered into a marital settlement agreement ("MSA"). The MSA divided the former couple’s major assets and created a schedule for the former wife’s alimony payments to the former husband. The MSA provided for each parent to spend equal amounts of time with the children; the former wife agreed to pay nearly all childcare expenses.

          After the former husband refused to follow a provision regarding the division of assets, the former wife moved to have him held in contempt. The former husband responded by moving to have the former wife held in contempt for failing to pay alimony, child support, and follow the MSA regarding assets. The former wife then moved to modify alimony, child support, and the timesharing agreement.

          In support of the modification, the former wife testified that a decline in her title business resulted in decreased income, causing her to downsize from seven employees to one. The title company relied on short sales. The former wife claimed rising property values caused a decrease in the number of short sales and a 75% reduction in earnings from each sale. She testified that her major client, responsible for about 85% of the title company’s business, opened its own title division and stopped using her company’s services. She claimed her efforts to maintain the business were also hindered by marketing regulations implemented shortly before the MSA, and trade regulations implemented shortly after. Her marketing efforts were limited to hosting luncheons and teaching a class.

          The impact of the title business’ decline and the collapse of another business was

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substantiated by the former wife’s tax returns and income estimates. She testified her title business’ annual income declined almost 60%. This caused a significant decline in her annual income. The former wife admitted this decline did not include personal expenses she ran through her title business.

          Although the MSA provided for equal timesharing, that never occurred. The former wife testified the former husband’s work schedule caused the children to spend almost 90% of their time with her. The former husband further disrupted the time-sharing arrangement when he had an altercation with his son, resulting in the former wife filing an ex parte motion for full custody of the children.

          The couple later amended the timesharing agreement to allow the daughter to spend time with her father. Even that time became limited due to the father’s work schedule and the daughter’s activities.

          The MSA assigned the former wife full financial responsibility for the children’s expenses, except for medical, camp, and extracurricular expenses the couple would split. She collected and sent the former husband receipts for extracurricular activities and made him aware of medical costs, but he failed to pay his share of those costs. The former wife admitted she did not get the former husband’s permission before committing to extracurricular activities, but claimed that he failed to review the suggested activities and did not object to them.

          The trial court found the 75% decline in the former wife’s business resulted from the loss of her biggest client, the decline in market value of short sales, and the change in business regulations. These factors created a substantial, material, permanent, and involuntary change in circumstances meriting termination of the former wife’s alimony obligation.

          The trial court modified timesharing to reflect the couple’s actual practice, which consisted of the daughter spending 30% of her time with the former husband. It ordered reunification therapy between the former husband and the son. It imposed a child-support obligation on the former husband to make up for changes in the former wife’s income and the modified timesharing. The trial court denied the former husband’s motions to hold the former wife in contempt.

          The former husband now appeals.

          The Alimony Issue

          We have a mixed standard of review of the order modifying alimony. Bauchman v. Bauchman, 253 So.3d 1143, 1146 (Fla. 4th DCA 2018). "The trial court’s legal conclusions are reviewed de novo." Id. "The trial court’s factual findings are reviewed for abuse of discretion and should be affirmed if supported by competent, substantial evidence." Id.

         The former husband argues the trial court erred in terminating the former wife’s alimony obligation because: (1) the court’s finding of a substantial, material, unanticipated, involuntary, and permanent change in circumstances is not supported by competent, substantial evidence; (2) the court failed to make the findings required by section 61.08(2), ...

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