DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FOURTH DISTRICT

JACQUELINE GIRARD,

Appellant,

v.

TIMOTHY GIRARD,

Appellee.

No. 4D21-2618

[November 30, 2022]

Appeal from the Circuit Court for the Nineteenth Judicial Circuit, 

Indian River County; Cynthia L. Cox, Judge; L.T. Case No.

312012DR000772. 

Kate E. Watson of The Watson Law Firm, P.A., Jupiter, for appellant.

A. Julia Graves of the Law Office of A. Julia Graves, P.A., Vero Beach, 

for appellee.

LEVINE, J.

The wife appeals a final judgment reducing her permanent alimony 

payments from $13,500 to $11,062 per month. Because there was no 

substantial and permanent change in circumstances since entry of the 

final judgment, we reverse and remand for reinstatement of the original 

alimony award. We find the other issues raised by the wife without merit 

and affirm those issues without further comment. 

The parties were married for twenty years. In 2013, the trial court 

entered a final judgment of dissolution of marriage, incorporating the 

parties’ mediation agreement. Pursuant to the mediation agreement, the 

husband agreed to pay the wife $13,500 per month in permanent periodic 

alimony. 

In 2020, the husband sought modification of alimony for several 

reasons, including the wife’s alleged increased earning ability. Testimony 

at the modification hearing showed that the wife worked as a travel agent 

until the birth of her first child eighteen years ago. The wife then became 

a stay-at-home mother. In 2018, the wife began taking interior design 
2

classes at the community college and was halfway through completing her 

design certificate in kitchen and bath. Around the time she started taking 

classes, the wife began an internship with a home builder. In September 

2020, after an employee left, the internship became a temporary part-time 

position with the wife earning $19 per hour working only five to ten hours 

a week. The wife’s temporary employment ended after approximately 

seven months in April 2021—two weeks before the modification hearing—

when the company hired a full-time replacement. The husband’s 

vocational consultant testified that the wife could work in a clerical job 

earning $10 to $12 an hour. 

The husband also sought modification based on the wife’s use of 

alimony to support her mother. As part of the marital settlement 

agreement, the wife received the marital home and a condominium. 

During the marriage, the wife’s mother lived in the condominium, and the 

wife paid the expenses associated with the condominium. After the 

divorce, the wife’s mother continued to reside in the condominium, and 

the wife continued to pay the same expenses that she paid during the 

marriage. The husband’s forensic accountant testified that the wife was 

underutilizing the condominium for income purposes. Per Zillow, an 

online real estate company, he estimated the condominium could generate 

$1,500 a month in gross rental income, with a net monthly income of 

$950. 

The forensic accountant also testified that the wife earned $837 a year 

in investment income. However, the accountant’s forensic notebook 

instead listed the wife’s investment income as $837 a month, while 

another page in the notebook listed a total of $627.38 in investment 

income over a nine-month period. 

After the hearing, the trial court entered a final judgment reducing the 

alimony payments from $13,500 to $11,062 a month. The trial court 

found that “[t]he Former Husband provided evidence that the Former 

Wife’s needs have decreased, that she is able to work, had employment 

income until two weeks prior to trial and that she has been able to 

accumulate savings and support her mother.” The trial court concluded 

that the wife was voluntarily unemployed and imputed $1,083 in monthly 

income to her, using a rate of $10 an hour at 25 hours a week. Next, the 

trial court considered that the wife’s mother lived in the wife’s 

condominium rent-free with the wife paying the expenses. The trial court 

found that the condominium could produce $950 in net monthly rental 

income. Finally, the trial court attributed to the wife “investment income 

of $837 per month.” The trial court then concluded: “After deducting and 

imputing gross employment income of $1,083 per month, net monthly 
3

rental income of $950 and investment income of $837 per month, the 

Former Wife has a shortfall and resulting need of $11,062 per month.” 

From this judgment, the wife appeals. 

“Trial court orders modifying awards of alimony are reviewed for abuse 

of discretion.” Simpson v. Simpson, 68 So. 3d 958, 961 (Fla. 4th DCA 

2011). 

However, “[t]o 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 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)); see also § 61.08(8), Fla. Stat. 

(2021) (stating that an award of permanent alimony “may be modified or 

terminated based upon a substantial change in circumstances”); § 

61.14(1)(a), Fla. Stat. (2021) (stating that a court may modify an award of 

alimony “as equity requires” where “the circumstances or the financial 

ability of either party changes”). 

In the instant case, the trial court abused its discretion in imputing 

$1,083 in monthly employment income to the wife in the absence of

evidence that there was a substantial and permanent change in 

circumstances since the final judgment. The trial court cited Stewart v. 

Rich, 664 So. 2d 1145 (Fla. 4th DCA 1995), and Valby v. Valby, 317 So. 

3d 147 (Fla. 4th DCA 2021), for the proposition that “[a] spouse’s 

obtainment of employment can serve as a downward modification where it 

was not contemplated and considered at the time of the parties’ 

agreement.” However, the facts of this case are markedly different from 

the cases cited by the trial court. In Stewart, we found that the wife 

earning a law degree and becoming a member of the Florida Bar supported 

modification of alimony, but only after providing the wife an opportunity 

to search out available employment opportunities in the legal field. 664 

So. 2d at 1146, 1149. In Valby, this court affirmed downward modification 

of alimony where the wife, who had been unemployed at the time of the 

final judgment, returned to full-time employment as a teacher. 317 So. 3d 

at 152. 

Unlike in Stewart and Valby, here the wife did not obtain a higher 

education degree or full-time permanent employment. Rather, the wife 

completed several classes at the community college, had not yet earned a 

certificate or degree, and held only a temporary part-time position for a 

limited time. Although the wife’s employment ended two weeks before the 

hearing, the undisputed evidence was that this position was always 
4

temporary. The wife was filling in for an employee who had left, and the 

wife’s position ended because the company hired a full-time replacement. 

Instead, the instant case is more analogous to Regan v. Regan, 217 So. 

3d 91, 93 (Fla. 4th DCA 2017), where we found the trial court, in 

considering a petition for modification, did not abuse its discretion in 

refusing to impute income to the wife where she had not been employed 

outside the home for the entire marriage, and the marital settlement 

agreement did not require the wife to work to support herself. Like in 

Regan, here the wife had not been employed outside the home since the 

birth of the parties’ first child eighteen years ago, and the marital 

settlement agreement did not require the wife to work to support herself. 

This case is also similar to DeFrancisco v. DeFrancisco, 273 So. 2d 780, 

781 (Fla. 2d DCA 1973), which found no substantial change in 

circumstances since entry of the final judgment where the wife’s income 

had increased for only a few months before she terminated her 

employment. Similar to DeFrancisco, here the wife worked for only several 

months in a temporary position. Although the wife took classes and was 

in the midst of obtaining her kitchen and bath design certificate, her 

circumstances were still more like that in Regan and DeFrancisco than 

those cases where a spouse had obtained the necessary qualifications for 

her career. 

The trial court also abused its discretion in imputing $950 in monthly 

rental income to the wife for her condominium. The undisputed testimony 

was that the wife’s mother lived in the condominium rent-free during the 

marriage and at the time of the final judgment. Thus, the wife’s alleged 

underutilizing of the condominium to generate rental income cannot be an 

“substantial change in circumstances” “that was not contemplated at the 

time of final judgment of dissolution.” Koski, 98 So. 3d at 95; see also 

Regan, 217 So. 3d at 93 (affirming, on a petition for modification, the trial 

court’s refusal to consider income the wife could generate from certain 

funds where the marital settlement agreement never contemplated the use 

of those funds for the wife’s support); Withers v. Withers, 390 So. 2d 453, 

455-56 (Fla. 2d DCA 1980) (declining to modify alimony where the wife 

allowed her adult children to live rent-free in another home owned by the 

wife); cf. Chastain v. Chastain, 73 So. 2d 66, 68 (Fla. 1954) (finding that 

modification could not be based on income from continued rental of home 

where rental income was contemplated at the time of the final judgment).

Finally, the trial court abused its discretion in imputing $837 in 

monthly investment income to the wife because there was no competent 

substantial evidence to support this amount. See Niederman v. 
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Niederman, 60 So. 3d 544, 550 (Fla. 4th DCA 2011) (“Any decision to 

impute income must be supported by competent substantial evidence.”). 

The husband’s forensic accountant testified that the wife earned $837 a 

year in investment income. Additionally, the forensic notebook contained 

conflicting information as to the amount of the investment income and did 

not provide the source of the information. To the extent the record 

supports a finding that the wife earned $837 a year in investment income, 

that would not be a substantial change in circumstances. 

In summary, the trial court abused its discretion in reducing the wife’s 

alimony where there was not competent substantial evidence of a

substantial and permanent change in circumstances since the time of the 

final judgment. As such, we reverse and remand for the trial court to 

reinstate the original amount of alimony payments. 

Affirmed in part, reversed in part, and remanded with instructions. 

CIKLIN and KUNTZ, JJ., concur. 

* * *

Not final until disposition of timely filed motion for rehearing.