DISTRICT COURT OF APPEAL OF FLORIDA
SECOND DISTRICT
JOHN-CHARLES ALLAIRE,
Appellant,
v.
BARBARA SILVA ALLAIRE,
Appellee.
No. 2D22-2804
September 15, 2023
Appeal from the Circuit Court for Pasco County; Joshua Riba, Judge.
John-Charles Allaire, pro se.
Jessica Chery and Russell G. Marlowe of Russell G. Marlowe, PA, New
Port Richey, for Appellee.
LaROSE, Judge.
John-Charles Allaire (Former Husband) appeals the order denying
his amended supplemental petition to modify alimony. We have
jurisdiction. See Fla. R. App. P. 9.030(b)(1)(A). Former Husband
established his entitlement to modification. Thus, we reverse.
Background
Former Husband and Barbara Silva Allaire (Former Wife) divorced
in 2016. Their marital settlement agreement (MSA) required Former
Husband to pay staggered durational alimony. By February 2018, the
monthly amount was $1,500.
The MSA also provided that the trial court could modify alimony
based on a substantial change in circumstances. See § 61.08(7), Fla.
Stat. (2016) ("The amount of an award of durational alimony may be
modified or terminated based upon a substantial change in
circumstances in accordance with [section] 61.14.").
Former Husband owned an upholstery business; he upholstered
dental chairs. His business had a contract with a single client, a used
equipment seller. The business operated out of the client's premises.
On March 9, 2020, Governor DeSantis declared a public health
emergency in Florida due to COVID-19. See Fla. Exec. Ord. No. 20-52
(Mar. 9, 2020). On March 30, 2020, he issued Executive Order Number
20-91, requiring that "all persons in Florida . . . limit their movements
and personal interactions outside of their home to only those necessary
to obtain or provide essential services or conduct essential activities."
See FAQs for Exec. Ord. 20-91 Essential Services and Activities during
Covid-19, https://www.flgov.com/wp-content/uploads/covid19
/Exec%20Order%2020-91%20FAQs.pdf (Apr. 3, 2020) (explaining that if
a business is not an essential service, it must close its physical location
to customers). Former Husband's upholstery business was not an
essential service. Consequently, he ceased operations.
In April 2020, Former Husband, pro se, dashed off a supplemental
petition to modify his alimony obligation. Allegedly, Former Husband's
sole client stopped doing business with him. He maintained that "[t]he
pandemic ha[d] forced a closure of [his] business, leaving [him] without
income."
In July 2021, Former Husband, through counsel, filed an amended
supplemental petition. See § 61.14(1)(a), Fla. Stat. (2021). The
substance of the amended petition remained the same: Former Husband
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could not pay his monthly alimony obligation due to the closure of his
business in the wake of public health safety protocols. He reported that
"[i]n order to minimize the impact of the loss and not be left without
anything . . . Former Husband . . . s[old] his upholstery equipment and
signed a non-compete [agreement] with his former client." The non-
compete agreement prevents him from upholstering dental chairs.
Former Husband described the situation as a "hostile takeover"; the
client hired his employees and gave him limited time to remove his
equipment or sell it to the client. And, although he could continue to
reupholster other furniture, Former Husband reported that he was "60
years old now and . . . [he did]n't have another startup in [him]. It's a
huge amount of work to start another business, and it requires a lot of
capital . . . ." On cross-examination, Former Husband further indicated
that while he had experience in related upholstery fields, "it certainly
didn't pay the same." To scratch out a living, he "began learning the
insurance adjusting business." However, his income was "significantly
lower than the income he had at the time of the [divorce]."
At a June 2022 Zoom hearing, the trial court denied the amended
supplemental petition. In its written order, the trial court found that
"Former Husband did have a change in circumstances with his
employment, there is no question about that." Further, the trial court
determined that Former Husband's sale of his equipment and signing of
the non-compete agreement were "reasonable." The trial court
recognized that Former Husband found himself "between a rock and a
hard place" when his only client stopped doing business with him.
However, the trial court reasoned that Former Husband's financial
downturn was not permanent. The trial court glibly explained that
Former Husband could have "used his [upholstery] skills in another
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capacity" because the non-compete agreement "only limited his
reupholstering to dental chairs, so he could . . . use[] his skills in another
capacity."
The trial court also expressed concern over the timing of the
amended supplemental petition. Former Husband filed his initial
petition "within a month of the Covid-related shutdowns." The trial court
was perplexed that Former Husband sought relief so soon "without
knowing whether this would be a permanent issue." A real conundrum;
a veritable Schrödinger's cat1 scenario.
The trial court found further that Former Husband's financial
problems were foreseeable:
It was not unforeseeable that the Former Husband lost
his business when he ran his business with only one client.
This Court believes it is entirely foreseeable that you may lose
your only source of income if you run a business the way the
Former Husband has.
The trial court also explained that Former Husband's change in
income was insubstantial because "he is making about the same that he
made at the time he agreed to pay alimony to . . . Former Wife."
Before us, Former Husband argues that he satisfied the test for
modifying his alimony obligation. See Driggers v. Driggers, 127 So. 3d
762, 764 (Fla. 2d DCA 2013) ("Unquestionably, the final judgment of
dissolution created a presumption that [the former husband] has the
1 "In a famous gedanken experiment of quantum mechanics,
Schrödinger's cat remains suspended between life and death in a box,
neither alive nor dead until the box is opened and uncertainty about the
decay of a radioactive particle is resolved." TKO Equip. Co. v. C & G Coal
Co., 863 F.2d 541, 545 (7th Cir. 1988); See also Cabantac v. Holder, 736
F.3d 787, 792 n.8 (9th Cir. 2013) ("Schrödinger's cat, originating in
quantum physics, is a symbol of something that exists in two
contradictory states at the same time." (Murguia, J., dissenting)).
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ability to pay alimony. He bears the burden to show that he can no
longer pay due to changed circumstances."). He contends that the trial
court misapprehended the law and misunderstood the financial
affidavits. We agree.
Analysis
"[T]he appellate court's standard of review of an order
modifying alimony is mixed." Bauchman v. Bauchman, 253
So. 3d 1143, 1146 (Fla. 4th DCA 2018) (citing Jarrard v.
Jarrard, 157 So. 3d 332, 337 (Fla. 2d DCA 2015)). "The trial
court's legal conclusions are reviewed de novo." Id. (citing
Jarrard, 157 So. 3d at 337-38). As for the trial court's factual
findings, the appellate court reviews the record to determine if
they are supported by competent, substantial evidence. See
Golson v. Golson, 207 So. 3d 321, 325 (Fla. 5th DCA 2016)
(citing Jarrard, 157 So. 3d at 337).
Befanis v. Befanis, 293 So. 3d 1121, 1122-23 (Fla. 5th DCA 2020)
(alteration in original).
Section 61.14(1)(a) allows a party to seek modification "[w]hen the
parties enter into an agreement for payments for . . . alimony . . . in
connection with a proceeding for dissolution . . . and the circumstances
or the financial ability of either party changes." Specifically, "[t]o justify a
modification of alimony, the moving party must establish: (1) a
substantial change in circumstances; (2) that the change was not
contemplated at the final judgment of dissolution; and (3) that the
change is sufficient, material, permanent, and involuntary." Eisemann v.
Eisemann, 5 So. 3d 760, 762 (Fla. 2d DCA 2009) (quoting Antepenko v.
Antepenko, 824 So. 2d 214, 215 (Fla. 2d DCA 2002)). We note that
Former Husband bears no heavier a burden simply because his alimony
obligation was found in an MSA. See § 61.14(7) ("When modification of
an existing order of support is sought, the proof required to modify a
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settlement agreement and the proof required to modify an award
established by court order shall be the same.").
I. Substantial Change in Circumstances
The trial court found that Former Husband's income when he
petitioned for modification was "about the same" as when the parties
divorced. The record belies this finding. Indeed, competent and
substantial evidence supports Former Husband's claim of a substantial
change in income. See Nangle v. Nangle, 286 So. 3d 377, 379-80 (Fla.
4th DCA 2019) ("A key factor in determining whether a modification is
warranted is determining whether, after the final judgment is entered,
the parties 'financial abilities have changed.' " (quoting Dogoda v.
Dogoda, 233 So. 3d 484, 487 (Fla. 2d DCA 2017))).
Seemingly, the trial court misread the Former Husband's financial
affidavits. Former Husband's 2015 financial affidavit reported a monthly
gross base salary of $3,033. His 2022 financial affidavit shows a gross
monthly income of $3,354. Unfortunately, the trial court overlooked the
portion of the 2015 financial affidavit indicating that Former Husband
supplemented his monthly base pay with shareholder distributions of
$2,500. Thus, the 2015 financial affidavit actually reflected a gross
monthly income of $5,769 and a net monthly income of $4,502.
In contrast, Former Husband's 2022 financial affidavit included no
shareholder distributions. Thus, his gross monthly income totaled
$3,354; his net monthly income was substantially reduced to $968.45.
In similar circumstances, we have found a substantial change in
circumstances. See Driggers, 127 So. 3d at 763 ("Mr. Driggers
demonstrated an uncontemplated substantial change in circumstances
that was not voluntary or temporary. He established a forty-percent drop
in his business income."); Antepenko, 824 So. 2d at 215 ("[T]he thirty-
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eight percent decrease shown here clearly meets the 'substantial change
in circumstances' test.").
II. Contemplated Change (Foreseeability is Immaterial)
Because Former Husband's business relied on one client, the trial
court reasoned that it was foreseeable that the loss of that client would
be devasting.
The trial court conflates "contemplated" with "foreseeability." See
Bauchman v. Bauchman, 253 So. 3d 1143, 1147 (Fla. 4th DCA 2018)
("Over the years . . . courts have confused 'anticipated' and 'foreseeable'
circumstances to mean that such circumstances were 'contemplated and
considered' at the time the original judgment was entered. 'The word
choice of "anticipated" has been unfortunate because it has transformed
a very different concept into something that it is not.' " (quoting Gelber v.
Brydger, 248 So. 3d 1170, 1172 (Fla. 4th DCA 2018))). Section
61.14(1)(a) "makes no reference to a change being 'unanticipated.' "
Gelber, 248 So. 3d at 1172. Rather, "an alimony award may not be
modified because of a 'change' in the circumstances of the parties which
was contemplated and considered when the original judgment or
agreement was entered." Jaffee v. Jaffee, 394 So. 2d 443, 445 (Fla. 3d
DCA 1981); See also Bauchman, 253 So. 3d at 1148 ("We find the trial
court erred in failing to consider former husband's impending retirement
as a substantial change in circumstances, as no evidence was presented
to show the parties considered former husband's future retirement when
the MSA was entered."); Gelber, 248 So. 3d at 1174 ("[T]he MSA in this
case was silent as to what would happen once the former wife reached an
age where she could access the funds in retirement accounts without
penalty. This was not a case where the retirement accounts had been
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taken into consideration to determine the former wife's current income in
a final judgment or MSA.").
The trial court's "foreseeability" analysis should play no role in
assessing whether the parties contemplated the loss of the client when
they entered into the MSA. See Canakaris v. Canakaris, 382 So. 2d
1197, 1202 (Fla. 1980) ("Where a trial judge fails to apply the correct
legal rule, . . . the action is erroneous as a matter of law. This is not an
abuse of discretion."); see also Driggers, 127 So. 3d at 763 ("We review
the trial court's findings regarding modification of alimony for an abuse
of discretion.").
Nothing in our record suggests that the parties contemplated the
closing of Former Husband's business, let alone the termination of the
only contract sustaining that business. Cf. Kamenski v. Kamenski, 15
So. 3d 842, 843 (Fla. 2d DCA 2009) (reversing trial court's denial of
former husband's petition seeking a reduction in his alimony obligation
where "neither the evidence presented nor the final judgment itself
established that the parties contemplated that [former wife] would
experience an income increase of that magnitude"). Certainly, the MSA
is silent on this point. And, we have observed that alimony modification
requires "consideration of whether the parties contemplated the
substantial change in circumstances and accounted for such a change
when they agreed on the terms of the support award." Dogoda, 233 So.
3d at 487; see, e.g., Mendes v. Mendes, 947 So. 2d 450, 452 (Fla. 4th
DCA 2006) ("The trial court based its decision [to deny the ex-husband's
petition for alimony reduction] on the well-established principle that
modification may not be based upon factors affecting income known to
the parties at the time a final judgment is entered.").
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Yet, they contemplated that alimony would be "modifi[able] . . .
based upon a substantial change in circumstances." See Gelber, 248 So.
3d at 1174 ("[T]he MSA . . . was silent as to what would happen once the
former wife reached an age where she could access the funds in
retirement accounts without penalty. This was not a case where the
retirement accounts had been taken into consideration to determine the
former wife's current income in a final judgment or MSA."). The trial
court employed an incorrect legal standard.
III. Change was Permanent & Involuntary
We now address the trial court's finding that Former Husband's
financial downturn was not permanent. The trial court surmised that
Former Husband could have just taken another upholstery job. And,
insofar as the trial court's rationale suggests that Former Husband's
change in circumstances was voluntary, we address that issue, too.
We have previously observed that
a severe reduction in income for "nearly a year, with no end in
sight," established permanency . . . . The trial court in this
case seemed to believe that Mr. Jarrard was required to prove
what his income would be over the upcoming years before
this two-year decline could be treated as a permanent event.
In light of the inherent uncertainty in predicting future
economic developments and given the remaining undisputed
facts in this case, that was an improper burden to place upon
Mr. Jarrard.
Jarrard v. Jarrard, 157 So. 3d 332, 339 (Fla. 2d DCA 2015) (quoting
Perez v. Perez, 973 So. 2d 1227, 1232 (Fla. 4th DCA 2008)).
Here, Former Husband sought modification in April 2020 due to
the closure of his business. He reported having no income at that time.
Leading up to the June 2022 modification hearing, Former Husband sold
his upholstery equipment, signed a non-compete agreement, and took up
new employment as an insurance adjuster with a reduced income. As
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his financial affidavit reflects, Former Husband saw a forty-one percent
decrease in his gross monthly income and a seventy-eight percent
decrease in his net monthly income commencing in April 2020,
compared to his financial situation at the time of dissolution in 2016.
This sustained change was sufficiently permanent. Although the trial
court was concerned with the timing of Former Husband's petition, the
record demonstrates that at the time of the hearing, his business had
been closed and his reduced income had lasted for over a year. This
sustained change was sufficiently permanent. See Perez, 973 So. 2d at
1232 ("Since the condition had lasted over a year at the time of the final
hearing, with no apparent end in sight, it should be deemed sufficiently
permanent." (quoting Woolf v. Woolf, 901 So. 2d 905, 912 (Fla. 4th DCA
2005))). And without any (competent substantial) evidence to contradict
that the change was permanent, the trial court abused its discretion in
finding that it was not permanent. Cf. Girard v. Girard, 351 So. 3d 27,
29 (Fla. 4th DCA 2022) (holding there was not competent substantial
evidence that the change was permanent where "[a]lthough the wife's
employment ended two weeks before the hearing, the undisputed
evidence was that this position was always temporary").
Also, the record does not support the trial court's finding that the
change was voluntary. For this, Wilson v. Wilson, 37 So. 3d 877, 881
(Fla. 2d DCA 2010), guides us:
Courts require that a change in circumstances be
involuntary to ensure that the payor spouse does not
deliberately avoid his support obligations. The payor spouse
must act in good faith to retain income that would allow him
to meet his financial obligations. To be sure, the Former
Husband sold his practice to VCA. However, the realities of
his practice compelled him to seek an alternative to what had
become a grinding practice model. The record supports the
trial court's conclusion that business exigencies
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prompted the sale, the consideration received was
reasonable, the sale enabled the Former Husband to continue
working as a veterinarian until retirement age, and the sale
proceeds ensured long-term security for both the Former Wife
and the Former Husband.
There is no evidence that the Former Husband
manipulated his finances to deprive the Former Wife of
support. Rather, the Former Husband responded to
unexpected business circumstances that presented a
dearth of reasonable alternatives for solutions. The
Former Husband needed to continue in practice. He was
nearing retirement age and realistically could not maintain
the current practice pace. The sale to VCA was a fitting
solution to the dilemma.
(Emphases added and citations omitted.) Here, Former Husband was
faced with untenable business exigencies caused by Covid-19. He tried
to make the best of a bad situation. Even the trial court recognized that
Former Husband was "between a rock and a hard place." Cf. Fort v. Fort,
90 So. 2d 313, 315 (Fla. 1956) (establishing a "good faith" test for
reducing support alimony when the paying ex-spouse has changed
employment and suffered a reduction in income); Kinne v. Kinne, 599 So.
2d 191, 194 (Fla. 2d DCA 1994) ("Under that good faith test, if the ex-
husband who is engaged in a new type of employment with substantially
reduced income did not deliberately reduce his income to avoid
compliance with his alimony obligation and is acting in good faith to
increase his income back toward its previous level, his alimony obligation
should be reduced to be more commensurate with his current ability to
pay."). We do not fault Former Husband for the course he chose.
Certainly, we discern no attempt to manipulate his finances to Former
Wife's detriment.
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Conclusion
We reverse the trial court's order denying Former Husband's
amended supplemental petition to modify alimony and remand for
further proceedings consistent with this opinion.
Reversed and remanded.
CASANUEVA and SILBERMAN, JJ., Concur.
Opinion subject to revision prior to official publication.
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