CHILD v. CHILD (2002)

District Court of Appeal of Florida,Fourth District.

Robert D. CHILD, Appellant, v. Terrie S. CHILD, Appellee.

Nos. 4D01-2235, 4D01-2870.

Decided: May 29, 2002

Andrew S. Berman of Young, Berman, Karpf & Gonzalez, P.A., North Miami Beach, and Addicott & Addicott, P.A., Hollywood, for appellant. Rebecca J. Mercier and Jane Kreusler-Walsh of Jane Kreusler-Walsh, P.A., West Palm Beach, and Allan M. Glaser of Allan M. Glaser, P.A., Miami, for appellee.

We reverse the order granting an involuntary dismissal in this proceeding for modification of alimony. Involuntary dismissals in such proceedings are usually improvident. If after resting, the party moving for a modification has failed to prove an involuntary, permanent and substantial change in circumstances, then the court should make a finding to that effect and deny modification on that basis.

Here no view of the evidence actually admitted would sustain a finding that the party moving for modification could continue to pay $33,000 monthly in alimony. We also conclude that the finding of contempt for failing to pay is equally in error, in that the evidence likewise does not sustain a finding that he had the ability to pay the full amount but willfully and voluntarily refused to do so. We therefore return the case to the trial court for further proceedings consistent with this opinion.

FARMER, J.

GUNTHER and STONE, JJ., concur.

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