GWENN CANTOR GAMSE, APPELLANT,
v.
EDMOND GAMSE, APPELLEE

Fla. 3d DCA | 1974-03-19
No. 73-638
Before BARKDULL, C. J., and CARROLL and HAVERFIELD, J J.
291 So. 2d 620 Florida District Court of Appeal, Third District (1974) Positive Treatment
Cited by 14 cases

AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.

Synopsis

In this divorce modification case, the Florida District Court of Appeal reversed a trial court order that terminated the wife's alimony entirely, holding that while some reduction in periodic payments was warranted based on the husband's changed circumstances, complete termination was not justified given the wife's continued need and the husband's substantial remaining assets.


Holding

The court held that while there was sufficient basis to reduce the periodic alimony payments, complete termination was not justified. On remand, the trial court must consider not only the husband's current income but also his substantial capital assets and the fact that his income reduction may have been voluntary rather than necessitated by circumstances.


Headnotes

[1] A voluntary reduction in income, undertaken with the intent to avoid alimony obligations, may be considered by the court when modifying alimony payments.

[2] A trial court may reduce periodic alimony payments based on a substantial change in circumstances, but termination may be unwarranted if the reduction in income was volun…

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Key Quotes

“In the circumstances of this case we hold there was basis in law for some reduction in periodic alimony payments, but not sufficient for termination of the alimony which had been provided for in the judgment.”

Establishes the court's holding that while modification downward was appropriate, complete termination was improper.

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Facts & Procedural History

The parties divorced in March 1968, with the husband ordered to pay $975 monthly alimony. Four years later, the husband sought modification, claiming …

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Opinion of the Court
CARROLL, Judge.

CARROLL, Judge.

The appellant Gwenn Cantor Gamse filed this appeal from a post judgment order in a divorce action. The order appealed from, granting a petition of the appellee for modification, terminated the periodic alimony which had been provided for in the judgment.

The parties were divorced on March 8, 1968, by a judgment in which the husband was ordered to pay alimony of $975 per month. Approximately four years thereafter the husband filed his petition for modification of the judgment seeking to be relieved of his obligation to pay alimony. As change of circumstances the husband alleged, without elaboration, that his income and financial ability to earn had been “greatly reduced” because he was no longer able to practice medicine. He further alleged that the wife was gainfully employed and no longer needed alimony. The wife filed an answer thereto, in which she denied the allegations that she was self-supporting and no longer needed alimony.

Following an evidentiary hearing the court entered an order that after three months therefrom the obligation of the husband to pay alimony would terminate. It was shown that the husband, a physician, earned in excess of $95,000 from his medical practice in the year in which the divorce was granted, and earned $110,000 therefrom 1969, $54,000 in 1970 and $49,000 in 1971. It was disclosed the husband gave up the practice of medicine on the date upon which he filed his petition for modification; that he had had some emotional problems for several years, for which he had received therapy treatment from a psychologist, but, according to his testimony, he had not been told that his condition was such as to prevent him from engaging in medical practice; that liquidation by him of his assets, including sale of his real estate and his medical practice had produced $271,000, which he had reinvested, and that his annual income therefrom was approximately $14,000.

It was revealed that the wife was not employed; that for eleven years she had been the owner of a substantial minority stock interest in a company known as Crown Paint Company; that during that eleven year period she had received dividends therefrom in only three years, $12,-000 in 1969, $8,333 in 1970, and $10,000 in 1971; that no further dividends had been received and that she had no assurance as to when and if dividends therefrom would be received in the future. The wife showed continuing need for alimony by reason of circumstances that required her to pay out substantial sums above her needs for actual support. In the circumstances of this case we hold there was basis in law for some reduction in periodic alimony payments, but not sufficient for termination of the alimony which had been provided for in the judgment. See Chastain v. Chastain, Fla. 1954, 73 So. 2d 66; Knight v. Knight, Fla.App.1967, 205 So. 2d 353; Adams v. Adams, Fla.App.1973, 273 So. 2d 794.

Upon remand, in considering modification of the divorce judgment to decrease the size of the monthly payments of alimony, the trial court should take into consideration not only the husband’s income but also his capital assets and that the reduction of the income of the husband, in a substantial respect, may have been brought about voluntarily and not of necessity, with a view to thereby obtaining a reduction or avoidance of the alimony.

The modification order terminating the alimony provision of the judgment is reversed, and the cause is remanded for further proceedings not inconsistent herewith.


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Citator

Cited By

  • Kalmutz v. Kalmutz, 299 So. 2d 30 (Fla. 4th DCA 1974)
    …ome testimony suggesting that a $450,000 offer had been made to purchase the farm. While not constituting an exact value, the husband testified that he would not accept less than $5,000 an acre (153-acre peach farm). . Gamse v. Gamse, Fla.App.1974, 291 So. 2d 620.…
  • Bradley v. Bradley, 347 So. 2d 789 (Fla. 3d DCA 1977)
    …(1975), even though there has been no change in the position or reduction in the financial needs of the wife and minor children. Vilas v. Vilas, 153 Fla. 102, 13 So. 2d 807 (1943); Denny v. Denny, 334 So. 2d 300 (Fla. 1st DCA 1976);. Gamse v. Gamse, 291 So. 2d 620 (Fla. 3d DCA 1974). Since the husband has failed to make the requisite showing to be entitled to a modification of the alimony and/or child support awards in the instant case, I am compelled to concur in the court’s affirmance herein.…
  • Freeland v. Purcifull, 347 So. 2d 726 (Fla. 2d DCA 1977)
    …he court is sympathetic with the financial plight of the husband, a modification or termination of an agreement to pay alimony is not justified where the husband’s inability to pay is caused by matters within [*728] his control. Cf., Gamse v. Gamse, 291 So. 2d 620 (Fla. 3d DCA 1974). Reversed. BOARDMAN, C. J., and HOBSON, J., concur.…

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