4D05-279-Mendes v. Mendes

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State: Florida

Court: Florida Fourth District Court

Docket No: 4D05-279

Case Date: 05/24/2006

Preview:DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT January Term 2006 RICHARD MENDES, Appellant, v. DEBRA MENDES, Appellee. No. 4D05-279 [ May 24, 2006 ] BAILEY, JENNIFER D., Associate Judge. Richard Mendes ("former Husband") appeals from an order rejecting downward modification of his permanent alimony obligation. The trial court properly rejected the General Magistrate's Report and Recommendation on the modification. Although we affirm the result, we respectfully reject the trial court's reasoning. The parties were divorced on February 4, 2003. At the time, Mr. Mendes was employed as a mortgage loan originator with Suntrust Bank, earning $127,998 per year. Mrs. Mendes earned $61,312 per year. The parties settled their divorce case by a settlement announced on the record before the trial court, which provided for $1500 per month in permanent alimony to the wife, with the proviso that "[o]bviously, the alimony would be subject to modification with respect to any material change in the earnings of either of the parties either up for her or down for him . . . ." Fourteen months later, former Husband moved to discharge his obligation to pay permanent alimony. He alleged a substantial change of circumstances due to the increase in interest rates and a reduction in referrals at Suntrust, which had reduced his income to less than his former wife's income level. The case was referred to the General Magistrate. The former Husband testified that re-financing had "dried up" since interest rates began to climb in July 2003. He also testified that he had quit his job at Suntrust

because of a policy change limiting the number of internal referrals for refinancing which he could receive from Suntrust branch managers, previously unlimited. After Mr. Mendes left Suntrust, he joined another mortgage brokerage with the expectation of restoring his fortunes. However, Mr. Mendes testified, his income would never return to the levels of 2002 upon which the agreed permanent alimony had been based. Suntrust witnesses testified that the referral limitation was adopted in March 2002, and that the rise in interest rates had substantially reduced refinancing business. Former husband's counsel argued that the evidence demonstrated that the 2002 earnings represented a unique spike in earnings due to historically low interest rates, and that Mr. Mendes would never earn that much again. Counsel for the former wife pointed out that the Suntrust referral limitation policy had been announced almost a year before the settlement, and that the fluctuating character of Mr. Mendes's income was known at the time of the settlement agreement. The General Magistrate granted the former Husband's motion and completely discharged his permanent alimony obligation, finding that Mr. Mendes had suffered a substantial, involuntary, and permanent reduction in income. The former wife, not surprisingly, took exceptions to the magistrate's recommendation before the trial court. The trial court sustained the former wife's objections, finding that the magistrate's findings and determinations were not supported by substantial and competent evidence and were clearly erroneous. See Garcia v. Garcia, 743 So. 2d 1225, 1226 (Fla. 4th DCA 1999). The court determined the circumstances which produced the reduction in income were known at the time of the agreed settlement and that Mr. Mendes had failed to prove that his reduction in income was not contemplated at the time he agreed to pay $1500 permanent alimony. The trial court particularly found that fluctuating interest rates and the consequences to Mr. Mendes's income were contemplated at the time of the final judgment, along with the known and existing Suntrust policy change of limiting in

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