DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FOURTH DISTRICT

July Term 2014

DENNIS L. ALBU,

Appellant,

v.

DEBORAH ALBU,

Appellee.

No. 4D13-3558

[November 19, 2014]

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

Beach County; Thomas Barkdull, III, Judge; L.T. Case No. 

502007DR001043XXXXMB.

Dennis Albu, Delray Beach, pro se.

Deborah Albu, Greenacres, pro se.

WARNER, J.

In this marital dissolution case, the former husband appeals an order 

granting his petition to modify the alimony he pays to his former wife. 

Although finding a substantial change of circumstances, the trial court 

reduced the alimony owed instead of terminating it entirely. The former 

husband claims that because he does not have the ability to pay, the trial 

court should have terminated his alimony obligation. He contends the 

trial court improperly equalized the income between the parties. We 

disagree, as the former wife was solely dependent upon the alimony for 

support, and the court’s choice to reduce alimony rather than eliminate it 

was not an abuse of discretion.

The parties divorced in 2007 after a long-term marriage in which the 

wife never worked outside the home. The final judgment incorporated a 

marital settlement agreement in which the former husband agreed to pay 

the former wife $2,000 per month in alimony until she remarried or either 

party died. Because of the former wife’s poor health, he also agreed to pay 

$80 per month towards the former wife’s prescription drug costs.
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The former husband did not keep current with his alimony obligation 

and was held in contempt several times in 2009 and 2010. As of February 

2011, he was in arrears in excess of $20,000. The former wife also had to 

seek medical coverage through the Health Care District, which paid for her 

prescription for insulin required by her diabetes. But the drugs eventually 

became so expensive that the District could no longer pay for them.

In October 2012, the former husband filed a petition to terminate or 

reduce alimony because of a substantial change in circumstance. He 

explained that he had suffered a severe heart attack in August 2011 and 

had been declared disabled by the Social Security Administration. His 

former business was involuntarily closed, because he could no longer 

perform the physical work it required. The wife filed an objection, and the 

case proceeded to an evidentiary hearing before a magistrate.

After hearing testimony from both of the parties, the magistrate made 

the following detailed findings of fact, which were accepted by the trial 

court over the former husband’s objections. The former husband’s heart 

attack, and the resulting loss of his business, caused a significant drop in 

the $120,000 yearly income the husband was making at the time of the

dissolution. He now received Social Security disability benefits of $1,949 

per month, from which $900 was deducted for his alimony obligation. The 

former wife’s sole source of income was alimony from the former husband, 

and she was totally dependent upon it. She could not qualify as yet for 

any form of Social Security payments, although when she turns 62 she 

can receive payments based upon her former husband’s Social Security. 

She was 60 years old at the time of the petition for modification. The court 

found, “[h]er need for financial assistance in the form of alimony continues 

unchanged since the entry of the final judgment.”

The court acknowledged that the loss of the business constituted a 

“substantial, material and permanent change of circumstances,” which 

required a modification of alimony. Nevertheless, the court determined 

“this finding must be balanced against the Former Wife’s total dependence 

on the alimony.” It concluded in these circumstances, the parties “should 

be placed on approximately equal ground.” It then reduced the alimony 

obligation to $900 per month, the amount the former husband was already 

paying. In addition, it eliminated his obligation to maintain health 

insurance and to pay the $80 per month towards the former wife’s medical 

prescriptions. The court also authorized the former husband to petition 

again for modification once the former wife starts to receive Social Security 

payments.
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In this appeal, the former husband argues that the alimony should have 

been terminated rather than reduced, because his income of $1,949 did 

not meet his expenses of $1,955. In making this claim, he completely 

ignores the fact that if alimony were terminated, the former wife would 

have no income and thus could cover none of her own expenses. Based 

on the circumstances of this case, the trial court did not abuse its 

discretion in reducing the alimony obligation to $900.

“To warrant a modification of alimony, the party seeking the change 

must prove ‘1) a substantial change in circumstances; 2) that was not 

contemplated at the time of the final judgment of dissolution; and 3) is 

sufficient, material, involuntary, and permanent in nature.’” Koski v. 

Koski, 98 So. 3d 93, 95 (Fla. 4th DCA 2012) (quoting Damiano v. Damiano, 

855 So. 2d 708, 710 (Fla. 4th DCA 2003)). Nevertheless, the need of one 

spouse and the ability to pay of the other spouse continue to be the most 

important factors to consider in modification proceedings. Boone v. Boone, 

3 So. 3d 403, 404 (Fla. 2d DCA 2009). In determining the extent of 

modification, the trial court should consider those factors listed in section 

61.08, Florida Statutes, to the extent that they are relevant in a 

modification proceeding. See Donoff v. Donoff, 940 So. 2d 1221, 1223 (Fla. 

4th DCA 2006). These factors include each party’s financial resources, 

earning capacities, employability, and sources of income. See § 

61.08(2)(a)-(j), Fla. Stat. (2012). The appellate court reviews an order on a 

motion to modify alimony based on an abuse of discretion standard. 

Garvey v. Garvey, 138 So. 3d 1115, 1118 (Fla. 4th DCA 2014).

Here, the trial court considered these factors when it concluded that 

the former wife had no other source of income, yet the former husband 

had some income. Clearly, neither party could meet their expenses with 

his level of income. The former wife had never worked, and both parties 

had substantial medical problems. Given these factors, the trial court’s 

efforts to provide some support to the wife by approximately dividing the 

income (although the former husband still receives more than the former 

wife) is not an abuse of discretion.

This case is most similar to Beebe v. Roman, 994 So. 2d 484 (Fla. 5th

DCA 2008), which involved the award of alimony in a 15 1⁄2 year marriage. 

Both parties were retired and of advanced age. The husband’s retirement 

income was less than $1,900 per month, and the wife received social 

security benefits of $459 per month. After dividing the meager assets, the 

trial court awarded alimony to the wife and equalized the parties’ incomes. 

The appellate court quoted the trial court’s reasoning:
4

In determining the alimony amount, the trial court 

observed that both parties had suffered “a substantial and 

dramatic reduction in their standard of living as a result of 

the marital breakup” and that an equalization of their net 

incomes would place both parties “in an equal[ly] miserable 

situation of not having enough money to sustain the lifestyle 

that they both enjoyed during the course of the marital 

relationship.”

Id. at 484-85. The court then noted, “[a]n award of alimony that results 

in the equalization of income is not per se improper.” Id. at 485. The trial 

court in Beebe had not equalized the parties’ income without regard to the 

factors of need and ability contained in section 61.08, Florida Statutes. 

Instead, the court had determined that equalization was appropriate after 

applying those factors. The Fifth District held, “[w]e cannot conclude that 

the alimony amount awarded by the trial court constituted an abuse of 

discretion.” Id. at 485.

Hahn v. Hahn, 66 So. 3d 345 (Fla. 4th DCA 2011), on which the former 

husband relies, is distinguishable. In Hahn, the former wife received 

$1,000 per month in alimony from the former husband. The former 

husband petitioned for modification due to his pending retirement and 

downturn in his business. The evidence showed that he had 

approximately $1,500 in income, nearly $2,200 in expenses, and no liquid 

assets. The former wife, on the other hand, had been working at a job 

making $35,000 a year but was unemployed, receiving $1,200 in 

unemployment compensation. She also had retirement accounts of 

$33,000. She had not applied for social security disability benefits, 

although she claimed she was unable to obtain employment. Under these 

circumstances, we held that the trial court’s reduction of the husband’s 

alimony to $450 per month was an abuse of discretion, and we remanded 

for the trial court to either eliminate alimony or reduce it to a nominal 

amount. Id. at 350. The former wife in Hahn had an income 

approximating the former husband’s, as well as prospects for continued 

employment or social security disability. In contrast, in this case the 

former wife had no income and no ability to generate income.

The former husband also relies on Rosecan v. Springer, 845 So. 2d 927 

(Fla. 4th DCA 2003), in claiming that “[i]t is against the law to order or 

authorize income sharing as a basis to set an appropriate amount of 

alimony.” He misreads Rosecan. In that case we said, “The purpose of 

permanent periodic alimony is not to divide future income to establish 

financial equality. It ‘is to provide for the needs and necessities of life for a 

former spouse, as they were established during the marriage of the 
5

parties.’” Id. at 929-30 (quoting Mallard v. Mallard, 771 So. 2d 1138, 1140 

(Fla. 2000)) (emphasis added). We also explained that Mallard forbade the 

use of alimony “as a tool to forge economic equality without regard to the 

needs of the recipient spouse.” Id. at 930 (emphasis added). Here, there 

is no question that the former wife is totally dependent upon alimony for 

her support. There is no proof that she has any ability to work, and she 

has substantial medical disabilities. The parties are essentially in the 

same position with respect to their needs. There is no reason that the 

former wife should be left completely destitute, and the former husband 

have all of the resources available to both parties. Just as in Beebe, both 

parties are “in an equal[ly] miserable situation of not having enough money 

to sustain the lifestyle that they both enjoyed during the course of the 

marital relationship.” Beebe, 994 So. 2d at 484-85.

How the trial court balanced the need and ability in this case was 

appropriate, including leaving open the ability of the former husband to 

petition for a future reduction should the former wife qualify for social 

security benefits. No abuse of discretion has been shown.

Affirmed.

MAY and CONNER, JJ., CONCUR.

* * *

Not final until disposition of timely filed motion for rehearing.