NOT
FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND
DISPOSITION THEREOF IF FILED
Appeal
from the Circuit Court for St. Johns County, Florida, John
Alexander, Judge.
Rebecca Bowen Creed, of Creed & Gowdy, P.A.,
Jacksonville, for Appellant.
Roger
Maloch, Atlanta, GA, pro se.
DUBOIS, E., ASSOCIATE JUDGE
Laura
Davis, f/k/a Laura Maloch ("Former Wife") appeals
the final order setting aside the magistrate's report and
denying her petition to modify alimony. We reverse and remand
with instructions to the trial court.
Former
Wife and Roger Maloch ("Former Husband") married in
1980 and finalized their dissolution of marriage in 2008. At
the time of dissolution, Former Wife worked as a nutritionist
and Former Husband worked as a chief financial officer. In
the final judgment of dissolution, the trial court imputed
$43, 000 of annual income to Former Wife. It noted that
Former Husband's annual salary was $225, 000, with
eligibility for a yearly bonus of up to half his salary.
Additionally, it found that Former Husband had stock options
valued in excess of $100, 000. The trial court awarded Former
Wife $2500 per month in permanent periodic alimony. Former
Wife appealed, and prior to the finalization of that appeal,
the parties entered into a consent agreement ("Consent
Agreement"), modifying Former Wife's permanent
periodic alimony award to $5500 per month.
In
2010, Former Husband became unemployed. He filed a
supplemental petition for modification of alimony, and the
trial court granted that relief in 2011 ("2011
Modification Order"), reducing his required monthly
alimony payment to $1. In 2012, Former Wife petitioned to
modify alimony based on Former Husband's reemployment,
and in 2014, the trial court entered an order ("2014
Modification Order") awarding Former Wife $1100 in
monthly alimony. The trial court continued to impute $43, 000
of income to Former Wife.
In
2016, Former Wife filed another petition for modification of
alimony. The trial court denied the petition ("2016
Modification Order"), finding that Former Wife did not
prove that modification was warranted. It also noted that
Former Wife had a $76, 000 annuity from which she previously
withdrew funds. Accordingly, Former Wife's alimony
remained at $1100 per month. Former Wife appealed the 2016
Modification Order, which this Court affirmed. Davis v.
Maloch, 221 So.3d 630 (Fla. 5th DCA 2016) (per curiam).
That
brings us to the petition that forms the basis for this
appealꟷFormer Wife's amended petition to modify
alimony, filed in 2017 ("2017 Petition"). In this
petition, Former Wife alleged that after the entry of the
2016 Modification Order, four substantial changes occurred
that warranted an upward modification: (1) Former Husband
found new, full-time employment, earning more than he did
previously; (2) Former Wife dissipated her annuity and
savings to pay debts; (3) Former Wife had to discontinue
health and dental insurance due to her inability to afford
such coverage; and (4) Hurricanes Matthew and Irma caused
$25, 000 of damage to the marital home that Former Wife could
not afford to repair. Former Wife sought an upward
modification to $5500 per month. The trial court referred the
2017 Petition to the magistrate without objection.
The
magistrate recommended that the trial court increase Former
Wife's monthly alimony to $2500, finding that Former Wife
proved a substantial change of circumstances because she
dissipated her annuity. In determining Former Wife's
monthly need, the magistrate included expenses that Former
Wife enjoyed during the marriage, but could no longer afford,
such as vacations, country club dues, and certain grooming
expenses. The magistrate rejected Former Wife's first,
third, and fourth claims. Finally, it found that Former
Husband had the ability to pay $2500 in monthly alimony.
Former
Husband subsequently moved for exceptions, which the trial
court granted. In its order setting aside the
magistrate's findings, the trial court held that Former
Wife's dissipation of her annuity was voluntary based on
her decision to work part time, such that it was not a valid
basis for granting modification. The trial court also ruled
that the parties' marital lifestyle was not a factor to
be considered in the modification proceeding because the
marital lifestyle was already discussed in prior proceedings,
and thus, its consideration was barred by res judicata.
On
appeal, Former Wife argues that the trial court: (1)
erroneously granted Former Husband's exceptions; (2)
erroneously found that consideration of the marital lifestyle
was barred by res judicata; and (3) improperly imputed
additional income in its order by finding that she was
voluntarily underemployed.[1] We discuss her claims seriatim.
"The
standard for an appellate court's review of a trial
court's decision to modify alimony is abuse of
discretion." 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)). A trial court reviews the
magistrate's findings for competent substantial evidence
...