Third District Court of Appeal

State of Florida 

Opinion filed August 24, 2022.

Not final until disposition of timely filed motion for rehearing.

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No. 3D21-740

Lower Tribunal No. 15-659-P

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Nicole Kraus,

Appellant,

vs.

Thomas Kraus,

Appellee.

An Appeal from the Circuit Court for Monroe County, Luis Garcia, 

Judge.

Thomas-McDonald Law Firm, P.A., and Aislynn Thomas McDonald, 

for appellant.

Twig, Trade, & Tribunal, PLLC, and Morgan L. Weinstein (Fort 

Lauderdale), for appellee.

Before LOGUE, LOBREE, and BOKOR, JJ. 

LOGUE, J.
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We affirm both the trial court’s denial of Appellant’s, Nicole Kraus 

(“former wife”), motion for judgment on the pleadings, and the trial court’s 

order granting Appellee’s, Thomas Kraus (“former husband”), Third 

Supplemental Petition for Modification of Alimony.

The trial court properly denied the former wife’s motion for judgment 

on the pleadings.1 “A motion for judgment on the pleadings must be decided 

wholly on the pleadings and is granted only if the pleadings establish that the 

movant is entitled to judgment as a matter of law.” Perez Escalona v. City of 

Miami Beach, 227 So. 3d 722, 724 (Fla. 3d DCA 2017) (internal quotations 

omitted). 

Section 61.14, Florida Statutes (2022), “gives an ex-spouse the right 

to file a petition for an increase in alimony where ‘the circumstances or the 

financial ability of either party has changed.’” Bedell v. Bedell, 583 So. 2d 

1005, 1007 (Fla. 1991) (quoting § 61.14, Fla. Stat.). The former husband’s 

petition alleged that the former wife discharged the marital debt she assumed 

pursuant to the marital settlement agreement. It further alleged that this 

discharge both increased her ability to pay alimony by reducing her own debt, 

and financially injured the former husband by leaving him open to 

1 We review a trial court’s order denying a motion for judgment on the 

pleadings de novo. Walker v. Figarola 59 So. 3d 188, 190 (Fla. 3d DCA 

2011).
3

subsequent tax issues. Pursuant to Bedell, this alleged change in the former 

wife’s ability to pay was sufficient to petition for a modification of alimony.

The trial court was permitted to consider evidence of financial hardship 

due to the former husband’s medical condition and loss of income. The 

former wife argues that these issues were not included in the pleadings and 

therefore the trial court’s consideration of such evidence was a violation of 

the former wife’s right to fair notice. “Under Florida law, a trial court is without 

jurisdiction to hear and determine matters which are not the subject of 

appropriate pleadings and notice.” Todaro v. Todaro, 704 So. 2d 138, 139 

(Fla. 4th DCA 1997) (internal quotations omitted). However, “when an issue 

is tried by implied consent, due process concerns are alleviated.” Nisr v. 

Barakat, 88 So. 3d 212, 212 (Fla. 3d DCA 2011). “Implied consent arises 

when arguments and evidence are presented on the issue without objection 

by the opposing party.” C.J. v. Dep't of Children & Family Servs., 9 So. 3d 

750, 755 (Fla. 2d DCA 2009).

The former husband’s financial hardship due to his medical condition 

and loss of income were tried by consent. The former wife not only failed to 

object to the introduction of this testimony in the hearing, but specifically 

engaged in questioning regarding the former husband’s heart condition and 
4

his loss of income. Because these issues were tried by consent, it was not 

error for the trial court to consider them in its order.

Finally, the trial court’s order modifying alimony was supported by 

competent substantial evidence.2 The former husband presented testimony 

and evidence that the former wife relieved herself of her obligation to assume 

the marital debt by filing for bankruptcy, and that her salary had considerably 

increased, constituting a permanent and substantial change in her ability to 

pay alimony. 

Affirmed.

2 “A trial court's Order regarding modification of alimony may not be 

disturbed on appeal in the absence of a showing of a clear abuse of 

discretion.” Lopez v. Lopez, 920 So. 2d 1165, 1167 (Fla. 3d DCA 2006). 

Generally, an appellate court will not disturb a trial court’s modification of 

alimony that is supported by competent substantial evidence. See Driggers 

v. Driggers, 127 So. 3d 762, 764 (Fla. 2d DCA 2013).