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Davis v. Maloch

Florida Court of Appeals, Fifth District

December 20, 2019



          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.


         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 ...

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