Full Opinion

FIRST DISTRICT COURT OF APPEAL STATE OF FLORIDA _____________________________ Nos. 1D19-4030 1D20-1066 _____________________________ KEITH GIBBS, Appellant, v. DIANE GIBBS, Appellee. _____________________________ On appeal from the Circuit Court for Duval County. Russell Healey, Judge. April 29, 2021 PER CURIAM. Keith Gibbs, the former husband, appeals the trial court’s post-dissolution final judgment denying his petition for modification of alimony and the trial court’s subsequent order granting the former wife’s third motion for contempt. Because the trial court applied the correct standards of proof to the evidence presented and because the former husband fails to show an abuse of the trial court’s discretion, we affirm. The parties’ long-term marriage was dissolved by the consent final judgment entered in June 2013. The parties’ agreement “resolving all pending matters” was acknowledged by the trial court and specifically incorporated into the final judgment. A consent signed by both parties was attached to the final judgment. One provision of the incorporated agreement required the former husband, after the sale of the marital home, to pay permanent alimony of $6,500 per month to the former wife. The parties’ substantial marital assets were equitably distributed under the agreement incorporated into the final judgment. Several businesses were distributed solely to the former husband, including a railroad equipment brokerage called Rail Trusts Equipment Inc. (RTE). The former husband complied with his alimony obligation until March 2019 when he made his last voluntary payment of alimony. He petitioned for modification of alimony later that month, and since then any payments towards his alimony obligation have been compelled by the trial court as purge amounts following the former wife’s motions for contempt. In his petition for modification, the former husband alleged that his circumstances had substantially changed so that he no longer had any ability to pay alimony. The trial court considered the evidence presented, particularly the former husband’s business dealings between RTE and newly formed companies and business partners subsequent to the final judgment of dissolution. The evidence also established that the former husband had remarried in 2018 and had gifted his new wife with joint ownership in his residence shortly before a lawsuit was filed against RTE. The trial court heard testimony that the former husband moved business assets between companies, received payments from undocumented sources, and stored cash in a safe and with his business partners without reliable accounting records. The timing of the former husband’s transfers of assets and sales proceeds supported the trial court’s finding that the former husband purposefully shielded assets from potential creditors and shirked his alimony obligations. The trial court found, based on banking records and other evidence, that the former husband’s expenditures on home improvements and other discretionary items, and his payment of debts and contingent obligations, rather than alimony, rendered his claimed loss of ability to pay not credible. The court found that it was unable to determine the former husband’s actual expenses, 2 needs, ability to support himself, or his remaining ability to pay the ordered alimony because the financial records presented showed his “lifestyle and prospects” completely at odds with his claim of reduced circumstances. The trial court therefore denied modification. “To justify the modification of an alimony award, the moving party must show: (1) a substantial change in circumstances, (2) that was not contemplated at the time of the final judgment of dissolution, and (3) that is sufficient, material, involuntary, and permanent in nature.” Dunn v. Dunn, 277 So. 3d 1081, 1085 (Fla. 5th DCA 2019) (citing Pimm v. Pimm, 601 So. 2d 534, 536 (Fla. 1992)). When the amount of permanent alimony was set by agreement of the parties as incorporated into the final judgment, the movant bears “a heavier than usual burden of proof.” Mendes v. Mendes, 947 So. 2d 450, 452 (Fla. 4th DCA 2006); see also Judy v. Judy, 291 So. 3d 651, 654 (Fla. 2d DCA 2020) (reversing downward modification of alimony; courts may not rewrite a contract to relieve one party from apparent hardship of an improvident bargain). An appellate court reviews a trial court’s order denying modification for abuse of discretion. Dunn, 277 So. 3d at 1085. Here, the former husband shows no abuse of discretion in the court’s determination of the weight and credibility of the former husband’s evidence that his change in circumstances rendering him unable to pay alimony was involuntary and permanent. Accordingly, the denial of the former husband’s petition to modify is affirmed. Addressing the former husband’s appeal of the contempt order entered upon the former wife’s amended third motion for contempt, the record evidence supports the trial court’s ruling. The burden of proof of his inability to pay alimony due to circumstances beyond his control was upon the former husband. See Wix v. Wix, 159 So. 3d 312, 314 (Fla. 2d DCA 2015). The trial court’s finding that the former husband’s evidence could not meet this burden, given all the assets available to him, his immediate repayment of funds “borrowed” from business associates, and his more than comfortable lifestyle, was within the court’s discretion. See Harris v. Millett-Harris, 900 So. 2d 712, 713 (Fla. 3d DCA 3 2005); see also Schneider v. Schneider, 189 So. 3d 276, 277 (Fla. 1st DCA 2016) (applying an abuse of discretion standard of review to a civil contempt finding). The purge amounts set by the trial court were amounts of unpaid alimony which the former husband failed to prove he was involuntarily unable to pay. For these reasons, the post-dissolution final judgment and the order finding the former husband in contempt, upon the former wife’s third motion for contempt, are AFFIRMED. BILBREY, KELSEY, and M.K. THOMAS, JJ., concur. _____________________________ Not final until disposition of any timely and authorized motion under Fla. R. App. P. 9.330 or 9.331. _____________________________ William S. Graessle, Jacksonville, for Appellant. Michael J. Korn of Korn & Zehmer, P.A., and Denis Watson and John M. Henderlite, III of Watson Henderlite, Jacksonville, for Appellee. 4