Rosenthal v. Rosenthal (First DCA, September 13, 2016)

The former husband sought to modify his alimony obligation based on allegations that his former wife was involved in a supportive relationship.  The trial judge dismissed, finding that the parties’ marital settlement agreement implied that alimony was either non-modifiable in general or non-modifiable based on a supportive relationship.

The First District reversed.  First, it explained that the statutory right to modify alimony is automatically incorporated into marital settlement agreements unless the agreement clearly and unambiguously waives the right.  The former wife argued that because the agreement expressly provided that child support was modifiable but was silent as to alimony, the trial judge could infer that alimony was not modifiable.  The District Court disagreed.

The former wife also argued that because the agreement specified two grounds for modification (i.e. that alimony terminated in 2018 or upon the death of either party), that the parties had implicitly waived the right to modify based on the former wife entering into a supportive relationship.  The District Court held that this could be true if the trial judge found that the provision was ambiguous and if the judge found, after considering parole evidence, that the parties intended to waive the ability to modify in such circumstances.  Because this raised a factual issue, the trial judge was wrong to dismiss the former husband’s petition without first holding an evidentiary hearing.

Anderson v. Anderson (Fifth DCA, September 16, 2016)

The parties’ marriage was dissolved while the husband was in jail.  The husband filed a motion to appear telephonically which the trial judge granted; however, due to a clerical error the Department of Corrections failed to facilitate the phone call.  The trial judge proceeded with the final hearing in the husband’s absence and the husband appealed.

The Fifth DCA reversed, holding that a prisoner involved in civil litigation has the right to be heard so long as the prisoner takes the initiative to secure his or her opportunity to appear telephonically.  Here, the husband did all that he could be expected to do and he missed the hearing through no fault of his own.  Accordingly, the trial court erred in proceeding in his absence.

Lostaglio v. Lostaglio (Fifth DCA, September 16, 2016)

In an initial divorce case, both parties challenged (among other issues) the trial judge’s consideration of the wife’s adultery in determining an appropriate durational alimony award.  The husband suggested that the wife should have been denied alimony as a result of her affair; the wife suggested that the trial judge improperly reduced her alimony as punishment for same.

The Fifth District Court began by noting that it saw no clear evidence that the trial judge reduced its alimony award as punishment, thereby denying Former Wife’s request for relief.  As to the husband’s argument, the Court explained that the trial judge was correct to consider the adultery and correct to award alimony nevertheless.  The Court reiterated the law that alimony should not be affected by a finding of adultery unless there is evidence that the adultery caused a depletion of marital assets.  Here there was no such evidence; therefore, the trial judge was correct to award alimony and to award it in an amount that was not adjusted downward to account for the adultery.