DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FOURTH DISTRICT

LEE A. FISCHER,

Appellant,

v.

CANDICE K. FISCHER,

Appellee.

No. 4D15-2147

[June 29, 2016]

Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm 

Beach County; Jeffrey Dana Gillen, Judge; L.T. Case No. 

501997DR003933XXDIFY.

John D. Boykin of Ciklin Lubitz & O’Connell, West Palm Beach, for 

appellant.

Matthew S. Nugent and Adam M. Zborowski of Nugent Zborowski & 

Bruce, North Palm Beach, for appellee.

DAMOORGIAN, J.

Lee Fischer (“Former Husband”) appeals the trial court’s order 

involuntarily dismissing his action to modify Candice Fischer’s (“Former 

Wife”) alimony award. We reverse.

Former Husband filed a two count supplemental petition for 

modification of alimony alleging the following two substantial changes in 

circumstances: (1) Former Husband had a reduced ability to pay due to 

his “desire to retire in the near future;” and (2) Former Wife had a reduced 

need for alimony due to additional substantial and unanticipated sources 

of post-dissolution income. 

The matter proceeded to a two day trial. On the first day of trial, the 

trial court heard extensive testimony concerning Former Husband’s 

decreased ability to pay alimony due to his purported retirement the week 

before trial. As to the issue of Former Wife’s alleged reduced or eliminated 

need for alimony, the undisputed evidence established that Former Wife
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was currently receiving lifetime monthly annuity payments and had 

inherited a considerable amount of assets from her family and boyfriend.

At the beginning of the second day of trial, and before Former Husband 

was given the opportunity to present the testimony of two additional 

witnesses, the trial court announced that it believed the modification 

petition was premature. The court reasoned that because Former 

Husband had purportedly just retired and had no track record of his postretirement income, his anticipated reduced ability to pay alimony was 

speculative. In response, Former Husband argued that irrespective of his 

income, the court could still grant his petition on the ground that Former 

Wife no longer had a need for alimony. The trial court disagreed and 

involuntarily dismissed Former Husband’s entire petition without 

prejudice for him to file a new petition in the future.

On appeal, Former Husband argues that: (1) the trial court violated 

Former Husband’s due process rights by involuntarily dismissing the 

petition before he had finished presenting his case; and (2) the trial court 

erred in dismissing the entire petition based on Former Husband’s 

inability to establish only one of the listed grounds for modification. We 

agree with both arguments.

Florida Rule of Civil Procedure 1.420(b) governs the involuntary 

dismissal of actions and provides in pertinent part:

After a party seeking affirmative relief in an action tried by 

the court without a jury has completed the presentation 

of evidence, any other party may move for a dismissal on 

the ground that on the facts and the law the party seeking 

affirmative relief has shown no right to relief, without waiving 

the right to offer evidence if the motion is not granted. The 

court as trier of the facts may then determine them and 

render judgment against the party seeking affirmative relief 

or may decline to render judgment until the close of all the 

evidence. . . .

Fla. R. Civ. P. 1.420(b) (emphasis added). See Swait v. Swait, 958 So. 2d 

552, 553 (Fla. 4th DCA 2007) (applying Florida Rule of Civil Procedure 

1.420 in a modification of alimony action).

We have repeatedly held that a trial court may not involuntarily dismiss 

an action before the plaintiff has rested its case. See Wachovia Mortg., FSB 

v. Montes, 156 So. 3d 1105, 1106 (Fla. 4th DCA 2015) (holding that the 

trial court reversibly erred in involuntarily dismissing the case before the 
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plaintiff finished presenting its case-in-chief); Lustig v. Garcia, 789 So. 2d 

482, 483 (Fla. 4th DCA 2001) (“[A]n involuntary dismissal may not be 

entered before the plaintiff has completed the presentation of his 

evidence.”). Here, at the time of the court’s involuntary dismissal of the 

entire petition, Former Husband had not yet finished presenting his casein-chief. Accordingly, “[b]y denying [Former Husband] the opportunity to 

complete [his] case-in-chief, the trial court denied [Former Husband his] 

due process.” A.N. v. M.F.–A., 946 So. 2d 58, 60 (Fla. 3d DCA 2006).

The trial court further erred in dismissing the entire multi-count 

petition based solely on Former Husband’s inability to establish one of the 

listed grounds for modification. In actions involving numerous counts,

dismissal of the entire case is proper only if the plaintiff has failed to 

establish a prima facie case as to each of the counts. See Xamnad, Inc. v. 

Patio Cafe, Inc., 486 So. 2d 699, 700 (Fla. 4th DCA 1986) (holding that the 

trial court reversibly erred in dismissing the multi-count complaint in its 

entirety when the facts therein supported at least one cause of action); see 

also Sec. Abstract & Ins. Co. v. Fid. Nat’l Title Ins. Co. of Pa., 668 So. 2d 

658, 658 (Fla. 4th DCA 1996) (holding that the trial court properly 

dismissed the entire multi-count complaint because the plaintiff “failed to 

establish a prima facie case as to any of [the counts]”).

Here, before his case was dismissed, Former Husband presented

evidence establishing that, post-dissolution, Former Wife began receiving

additional permanent monthly income and had inherited substantial 

assets. See Jarrard v. Jarrard, 157 So. 3d 332, 339 (Fla. 2d DCA 2015) 

(holding that a permanent change in income constitutes a substantial 

change in circumstances justifying a reduction of alimony); Wiesenfeld v. 

Wiesenfeld, 95 So. 3d 959, 960-61 (Fla. 1st DCA 2012) (holding that 

receipt of a large inheritance constitutes a substantial change in 

circumstances justifying termination of permanent alimony). Accordingly, 

Former Husband presented a prima facie case establishing Former Wife’s 

reduced or eliminated need for alimony and the court was compelled to 

allow Former Husband to complete his case and rule on the remaining 

ground for modification.

Reversed and remanded.

FORST, J., and PERLMAN, SANDRA, Associate Judge, concur.

* * *

Not final until disposition of timely filed motion for rehearing.