final until disposition of timely filed motion for rehearing.
from the Circuit Court for the Nineteenth Judicial Circuit,
Martin County; Michael McNicholas, Judge; L.T. Case No.
Siobhan Helene Shea of Sheappeals PLLC, Palm Beach, for
Nicholas M. Gieseler and Steven Geoffrey Gieseler of Gieseler
& Gieseler P.A., Stuart, for appellee.
former husband appeals an order denying his motion to modify
or terminate alimony. He makes several arguments, including
that the trial court erred in failing to consider and address
the former husband's ability to pay and the former
wife's need. We agree with him on this issue, and reverse
and remand to the trial court for further proceedings
consistent with this opinion.
parties' marriage was dissolved in 2008. The former
husband was 67 at the time; the former wife was 48. The
former husband owned a 45 percent interest in a company he
created during the marriage. He worked there and ultimately
received redemption payments for his stock in the company.
court determined the former husband's total gross and net
monthly income. Due to unpaid taxes, the IRS garnished all
but $2, 917.84 of his net monthly income. The trial court
found that during the parties' marriage, the former wife
was primarily a homemaker and caregiver for the parties'
court found the marriage to be long-term for which permanent
alimony was appropriate. The former husband did not contest
that finding. However, due to the IRS' garnishment, the
former husband's monthly income did not provide him with
the ability to pay.
trial court entered the dissolution judgment, reserving
jurisdiction to determine alimony after payment of the
outstanding IRS debt. The court subsequently amended the
final judgment to correct a scrivener's error, but again
reserved jurisdiction to award alimony.
2009, the former wife moved to determine alimony. The court
determined that the IRS debt had been satisfied; the former
husband had the ability to pay, and the former wife was
unemployed and in need of alimony. The court imputed a gross
monthly income to her. The court then awarded permanent
alimony of $2, 000 per month. Neither party appealed the
2017, the now 78-year-old former husband filed a supplemental
petition for modification/termination of alimony. He argued
there had been a substantial and uncontemplated change in
circumstances since the entry of the alimony order. The
substantial change was the cessation of monthly redemption
payments from his company in April 2015.
trial court held a hearing on the petition. The former
husband retired in 2009 after the final dissolution judgment,
but before alimony was determined. The day he retired, he
entered into a redemption agreement in which the company
agreed to pay him for his stock. Those payments allowed him
to make alimony payments in accordance with the alimony
award, but they had come to an end.
former husband testified that now his only sources of income
were his pension, social security, and a modest amount in
monthly interest and dividends. After paying ...