author: WELCH, Judge.

text:
    Delila Wigginton PIERCE v. STATE of Alabama.
    CR-14-0994.
    Court of Criminal Appeals of Alabama.
    April 29, 2016.
    Rehearing Denied July 1, 2016.
    Certiorari Denied Aug. 12, 2016 Alabama Supreme Court 1151082.

      Basil Timothy Case, Florence, for appellant.
    Luther Strange, atty. gen., and Cecil G. Brendle, Jr., asst. atty. gen., for appellee.
   WELCH, Judge.

Delila Wigginton Pierce appeals from her conviction, following a bench trial in the Lauderdale Circuit Court, for driving under the influence (“DUI”), in violation of § 32-5A-191(a)(2), Ala.Code 1975. Pierce was sentenced to 12 months in the county jail. Pierce was given credit for time served, and the remainder of her sentence was suspended. Cost and fines were assessed.

Pierce contends on appeal that the trial court committed reversible error when it allowed the State, over defense counsel’s objections, to present evidence pertaining to the Draeger Breath Alcohol Test administered to Pierce following Pierce’s DUI arrest. Pierce objected on the grounds that the State failed to lay a proper predicate for the admission of the evidence.

“The question of admissibility of evidence is generally left to the discretion of the trial court, and the trial court’s determination on that question will not be reversed except upon a clear showing of abuse of discretion.” Ex parte Loggins, 771 So.2d 1093, 1103 (Ala.2000). Where as here, “ ‘ “evidence is presented to the trial court ore tenus in a nonjury case, a presumption of correctness exists as to the court’s conclusions on issues of fact; its determination will not be disturbed unless clearly erroneous, without supporting evidence, manifestly unjust, or against the great weight of the evidence.” ’ ” Ex parte Jackson, 886 So.2d 155, 159 (Ala.2004)(quoting State v. Hill, 690 So.2d 1201, 1203 (Ala.1996), quoting in turn, Ex parte Agee, 669 So.2d 102, 104 (Ala.1995)). Moreover, “[w]hen evidence is presented to the trial court ore tenus, the court determines the weight and credibility of the testimony, and its findings based on ore tenus evidence will not be disturbed on appeal unless the record reveals those findings are palpably wrong or manifestly unjust.” Cox v. State, 710 So.2d 525, 526 (Ala.Crim.App.1997), citing Busey v. State, 56 Ala.App. 205, 320 So.2d 709 (Ala.Crim.App.1975).

Sections 32-5A-191 (a)(1) and (a)(2), Ala. Code 1975, provide two different methods of proving the offense of driving under the influence of alcohol. Sisson v. State, 528 So.2d 1159, 1162 (Ala.1988). Section 32-5A-191(a)(l) provides that “[a] person shall not drive or be in actual physical control of any vehicle while ... there is 0.08 percent or more by weight of alcohol in his or her blood.” Section 32-5A-191(a)(2) provides that “[a] person shall not drive or be in actual physical control of any vehicle while ... [u]nder the influence of alcohol.” As previously stated, Pierce was charged with, and prosecuted for, violating subsection (a)(2) of § 32-5A-191.

The record reflects that at 10:00 p.m. on November 2, 2012, Officer Monty Merri-man, an enforcement agent with the ABC Board, was working in downtown Florence from an unmarked patrol vehicle. He observed the vehicle being driven by Pierce and became suspicious that the driver might be impaired. Officer Merriman activated his video equipment to record Pierce’s vehicle and his subsequent personal encounter with her. The video was played for the trial court. Officer Merri-man testified that he followed.Pierce’s vehicle because the vehicle was swerving within its lane. Upon following Pierce, Officer Merriman observed the vehicle do the following: weave, swerve, and travel down the middle of the road, twice almost strike a concrete lane divider, and straddle the center line dividing the lanes when traveling across a bridge. Officer Merri-man activated the blue lights on his vehicle, and Pierce appeared not to notice but continued driving. Officer Merriman had to “bump” his siren several times before Pierce pulled over. (R. 6.) Upon stopping Pierce, Officer Merriman testified to the following: When Pierce rolled her window down, Officer Merriman immediately smelled an odor of alcoholic beverages on her person, and, when Pierce got out of her vehicle, she was unsteady on her feet, stumbled, and Officer Merriman had to catch her to keep her from falling. Merri-man administered the following field-sobriety tests: horizontal gaze nystagmus (“HGN”) test, the one-leg-stand test, and the walk and turn test. Evidence of the HGN test was not allowed. However, Officer Merriman testified that Pierce was unsteady on her feet and that she failed the other field-sobriety tests and almost fell down when attempting one of the tests. It was Merriman’S opinion that Pierce was driving while intoxicated; thus, he arrested her for DUI.

Upon arriving at the Lauderdale County Detention Center, an attempt was made to administer Pierce the Draeger Breath Alcohol Test, which is a breath test that measures a person’s blood-alcohol content. Pierce consented to take the test. Officer Merriman administered “approximately nine different tests” but was able to obtain only “[o]ne good sample” because Pierce merely pretended to blow air into the mouthpiece. (R. 13, 15.) Officer Merri-man testified that absent two good samples, there is no report generated from the test on site, but rather, “[the Draeger machine] sends the information to Montgomery” and the Department of Forensic Sciences there issues a “data pack” and certificate reporting the findings from the Draeger Test. (R, 15.) Pierce’s certificate reported the result of her Draeger Breath Alcohol Test as a “refusal,” which reflects that the officer was unable to administer the test or that the defendant refused to take the test. (R, 16.) However, data from the one “good” test reflected that Pierce’s blood-alcohol content at the time of the test was in a range between .17 to 0.21.

This Court agrees with the State’s assertion on appeal that, were the admission of the testimony regarding the Draeger Breath Test error, that error was harmless.

Pierce was charged with driving a vehicle while “under the influence of alcohol” as set forth in § 32-5A-191(a)(2), Ala.Code 1975. The phrase “under the influence of alcohol” is not defined by statute, but the Supreme Court of Alabama has defined the phrase to mean “that the defendant was under the influence of alcohol to the extent that it affected his ability to operate his vehicle in a safe manner.” Ex parte Buckner, 549 So.2d 451, 453 (Ala.1989). In contrast, driving under the influence charged under (a)(1) does not require proof that a vehicle was operated in an unsafe manner. Subsection (a)(1) has two elements: “(1) driving, or actual physical control of, a vehicle; and (2) a blood alcohol content of 0.[08]% or greater.” Curren v. State, 620 So.2d 739, 740 (Ala.1993). Section 32-5A-191(a)(l) is “referred to as ‘per se’ statute[ ] because [it] *make[s] driving an automobile with a blood alcohol concentration of .[08]% or more a crime without reference to the effect that alcohol may have on the driver.’ Curren, 620 So.2d at 740 (quoting 4 Richard E. Erwin, Marilyn K. Minzer, Leon A. Greenberg, Herbert M. Goldstein, Arne K. Bergh, Harvey M. Cohen, Defense of Drunk Driving Cases § 33A.00, at 33A-2 (3d ed.l991)(emphasis added in Curren). Thus, evidence of Pierce’s blood-alcohol content was not an element of the charged offense. Nevertheless, evidence of blood-alcohol content is admissible in a DUI case charged under subsection (a)(2).

“Although it is not required to do so, the prosecution may, in a prosecution under (a)(2), introduce the results of a chemical test for intoxication. See Cains [v. State], 555 So.2d [290,] at 298 [ (Ala.Cr.App.1989) ]; Briggs v. City of Huntsville, 545 So.2d 167, 169 (Ala.Cr.App.1988), writ quashed, 545 So.2d 171 (Ala.1989), overruled on other grounds herein; Jemison v. State, 513 So.2d 47, 49 (Ala.Cr.App.1987), overruled on other grounds herein.”

Frazier v. City of Montgomery, 565 So.2d 1255, 1257 (Ala.Crim.App.1990).

The standard for determining whether error is prejudicial or harmless is whether the evidence in error was “harmless beyond a reasonable doubt.” Schaut v. State, 551 So.2d 1135, 1137 (Ala.Crim.App.1989), citing Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967). Hei*e, excluding evidence about the Draeger Test, Officer Merriman’s testimony regarding Pierce’s erratic and unsafe driving, the strong smell of alcohol on Pierce’s person, Pierce’s failing the field-sobriety tests, Pierce’s almost falling down, a videotape of her driving, and Officer Merriman’s opinion that Pierce was driving while intoxicated provided overwhelming evidence that Pierce was driving a vehicle while she was under the influence of alcohol. Thus, even if the trial court erred in admitting the evidence in question, such error was harmless beyond a reasonable doubt because the evidence against Pierce was overwhelming. See Cumbie v. City of Montgomery, 703 So.2d 423 (Ala.Crim.App.1997)(holding that because the evidence of the appellant’s intoxication, even without the evidence provided by the HGN test, was overwhelming, any error in the admission of the HGN test was harmless beyond a reasonable doubt); see Rule 45, Ala. R.App. P.

Moreover, because this was a bench trial, this Court presumes that the trial court gave proper weight to all the evidence. Accordingly, the trial court could not have found Pierce guilty unless it found that she had violated § 32-5A-191(a)(2), Ala.Code 1975; thus, any error in the admission of the Draeger Test was harmless because it provided evidence cumulative to Officer Merriman’s testimony that Pierce was intoxicated, but it did not establish the element of unsafe driving. Thus, any error in the admission of evidence regarding the Draeger Breath Test and Pierce’s blood-alcohol content was harmless beyond a reasonable doubt.

Based on the foregoing, the judgment of the trial court is affirmed.

AFFIRMED.

WINDOM, P.J., and KELLUM, BURKE, and JOINER, JJ., concur.

      . The testimony was that the good test reflected a blood alcohol content of .19. Further, "[i]f [Pierce] had provided another sample [the Department of Forensic Sciences] would allow it to vary by .02 so she could’ve been as low as .7 or as high as a .21.” (R, 33-34.) The reference to a low of ,7 is obviously a typographical error, because .19 less .02 equals .17.


source: Caselaw Access Project

author: POLSTON, J.

license: Public Domain

text:
    Richard DEBRINCAT, et al., Petitioners, v. Stephen FISCHER, Respondent.
    No. SC15-1477
    Supreme Court of Florida.
    [February 9, 2017]
    Paul Morris of the Law Offices of Paul Morris, P.A., Miami, Florida, for Petitioners
    John Marshall Jorgensen and Stephen Brian Bull of Scott, Harris, Bryan, Barra & Jorgensen, P.A., Palm Beach Gardens, Florida, for Respondent
    Franklin Lewis Zemel, Susan Eileen Trench, and Ariel Rebecca Deray of Am-stein & Lehr LLP, Fort Lauderdale, Florida, for Amicus Curiae American Federated Title Corporation
    Philip Mead Burlington of Burlington & Rockenbach, P.A., West Palm Beach, Florida, for Amicus Curiae Florida Justice Association
   POLSTON, J.

The Fourth District Court of Appeal in Fischer v. Debrincat, 169 So.3d 1204 (Fla. 4th DCA 2015), held that the litigation privilege did not bar the filing of a malicious prosecution claim that was based upon the act of adding a party defendant to a civil suit. We have jurisdiction because the Fourth District also certified conflict with the Third District Court of Appeal’s decision in Wolfe v. Foreman, 128 So.3d 67 (Fla. 3d DCA 2013). See Art. V, § 3(b)(4), Fla. Const. For the following reasons, we approve the Fourth District’s decision in Fischer and disapprove the Thud District’s decision in Wolfe to the extent it is inconsistent with our decision.

I. BACKGROUND

The original civil proceeding, which gave rise to Stephen Fischer’s claim for malicious prosecution, was filed around November 2007 by Richard Debrincat and Jason Debrincat against a group of defendants. Stephen Fischer was later added as a party defendant in an amended complaint and was also named in a second amended complaint. In the underlying proceeding, the Debrincats sued Fischer for “defamation, defamation per se, tortious interference, and conspiracy.” Fischer, 169 So.3d at 1205. The Debrincats “later dropped [Fischer] from the underlying proceeding.” Id

On May 4, 2009, Fischer brought an action against the Debrincats for malicious prosecution, claiming that the Debrincats “acted with malice towards him in pursuing the underlying proceeding against him without probable cause.” Id. The Debrin-cats “eventually moved for summary judgment, arguing that the litigation privilege afforded them immunity for their conduct of joining [Fischer] as a defendant in the underlying lawsuit.” Id. The Debrincats relied upon the Third District’s decision in Wolfe, “a case holding that the litigation privilege applies to a cause of action for malicious prosecution.” Id. “The trial court granted the [Debrincats’] motion for summary judgment and later entered a final judgment in their favor.” Id.

On appeal, the Fourth District reversed and held “that the litigation privilege cannot be applied to bar the filing of a claim for malicious prosecution.” Id. at 1209. The Fourth District explained that “[t]he Florida Supreme Court has long recognized the viability of a cause of action for malicious prosecution” and that, “[i]n [its] view, Wolfe went too far in its application of the litigation privilege.” Id. at 1207. The Fourth District reasoned as follows:

Because the commencement or continuation of an original criminal or civil judicial proceeding is an act “occurring during the course of a judicial proceeding” and having “some relation to the proceeding,” malicious prosecution could never be established if causing the commencement or continuation of an original proceeding against the plaintiff were afforded absolute immunity under the litigation privilege. If the litigation privilege could apply to bar a malicious prosecution action, this would mean that the tort of malicious prosecution would be effectively abolished in Florida—or, at the very least, eviscerated beyond recognition.

Id.

Accordingly, the Fourth District “re-versefd] the summary judgment, re-mandad] for further proceedings, and certified] conflict with Wolfe.” Id. at 1209.

II. ANALYSIS

The Debrincats argue that the litigation privilege should bar Fischer’s claim for malicious prosecution, which was based upon the Debrincats’ act of adding Fischer as a party defendant in a civil proceeding. We disagree.

“The law has long recognized that judges, counsel, parties, and witnesses should be absolutely exempted from liability to an action for defamatory words published in the course of judicial proceedings, regardless of how false or malicious the statements may be, as long as the statements bear some relation to or connection with the subject of inquiry.” DelMonico v. Traynor, 116 So.3d 1205, 1211 (Fla. 2013); see also Levin, Middlebrooks, Mabie, Thomas, Mayes & Mitchell, P.A. v. United States Fire Ins. Co., 639 So.2d 606, 608 (Fla. 1994) (“[Ajbsolute immunity must be afforded to any act occurring during the course of a judicial proceeding, regardless of whether the act involves a defamatory statement or other tortious behavior ... so long as the act has some relation to the proceeding.”). “[This] litigation privilege applies across the board to actions in Florida, both to common-law causes of action, those initiated pursuant to a statute, or of some other origin.” Echevarria, McCalla, Raymer, Barrett & Frappier v. Cole, 950 So.2d 380, 384 (Fla. 2007). However, this Court has explained that its “recognition of the [litigation] privilege derived from a balancing of two competing interests—the public interest in allowing litigants and counsel to freely and zealously advocate for their causes in court versus protecting the rights of individuals, including the right of an individual to maintain his or her reputation and not be subjected to slander or malicious conduct.” DelMonico, 116 So.3d at 1217.

Importantly, the cause of action for malicious prosecution has also long been recognized in the State of Florida. See Tatum Bros. Real Estate & Inv. Co. v. Watson, 92 Fla. 278, 109 So. 623, 626 (1926). To prevail in a malicious prosecution action, this Court has explained that a plaintiff must establish the following elements:

(1) an original criminal or civil judicial proceeding against the present plaintiff was commenced or continued; (2) the present defendant was the legal cause of the original proceeding against the present plaintiff as the defendant in the original proceeding; (3) the termination of the original proceeding constituted a bona fide termination of that proceeding in favor of the present plaintiff; (4) there was an absence of probable cause for the original proceeding; (5) there was malice on the part of the present defendant; and (6) the plaintiff suffered damage as a result of the original proceeding.

Alamo Rent-A-Car, Inc. v. Mancusi, 632 So.2d 1352, 1355 (Fla. 1994).

Applying the litigation privilege here would eviscerate this long-established cause of action for malicious prosecution. Specifically, the first element of a claim for malicious prosecution is that “an original criminal or civil judicial proceeding against the present plaintiff was commenced or continued.” Id. (emphasis added). Certainly, the filing of a lawsuit and the joining of a party defendant is the commencement of a judicial proceeding against that party as delineated in Alamo. Indeed, as the Fourth District cogently explained in Fischer, “[a]n action for malicious prosecution— which is based as a matter of law on causing the commencement or continuation of an original judicial proceeding—could never occur outside the context of litigation.” 169 So.3d at 1209. Therefore, “malicious prosecution could never be established if causing the commencement or continuation of an original proceeding against the plaintiff were afforded absolute immunity under the litigation privilege.” Id. at 1207.

This Court has never held that the litigation privilege protects a litigant from a claim of malicious prosecution. And other district courts have recognized that the litigation privilege does not act as a bar to a malicious prosecution claim. See Olson v. Johnson, 961 So.2d 356, 360-61 (Fla. 2d DCA 2007); Wright v. Yurko, 446 So.2d 1162, 1164-65 (Fla. 5th DCA 1984).

III. CONCLUSION

Accordingly, we hold that the litigation privilege does not bar the filing of a claim for malicious prosecution that was based on adding a party defendant to a civil suit. We approve the Fourth District’s decision in Fischer and disapprove the Third District’s decision in Wolfe to the extent it is inconsistent with this decision.

It is so ordered.

LABARGA, C.J., and PARIENTE, LEWIS, QUINCE, and CANADY, JJ., concur. LAWSON, J., did not participate.

      . Because this is a pure question of law, it is subject to de novo review. See Bosem v. Musa Holdings, Inc., 46 So.3d 42, 44 (Fla. 2010).


author: PER CURIAM.

text:
    INQUIRY CONCERNING A JUDGE NO. 14-488 RE: Kimberly Michele SHEPARD.
    No. SC15-1746
    Supreme Court of Florida.
    [May 4, 2017]

      Hon. Kerry I. Evander, Chair, Michael Louis Schneider, Executive Director and General Counsel, and Alexander J. Williams, Assistant General Counsel, Tallahassee, Florida; Scott N. Richardson, Special Counsel, West Palm Beach, Florida; Mayanne Downs of Gray Robinson, P.A., Hearing Panel Chair, Orlando, Florida; and Lauri Waldman Ross of Ross & Girten, Miami, Florida, for Florida Judicial Qualifications Commission, Petitioner
    Timothy R. Hartung, Ashburn, Virginia, for Judge Kimberly Michele Shepard, Respondent
   PER CURIAM.

This matter is before the Court to review the determination of the Florida Judicial Qualifications Commission (JQC) that Circuit Court Judge Kimberly Michele Shepard violated Canons 7A(S)(e)(ii) (candidate shall not knowingly misrepresent facts concerning the candidate or an opponent) and 7A(3)(b) (candidate shall act with integrity) of the Florida Code of Judicial Conduct, and Rule 4-8.2(b) (candidate shall comply with applicable provisions of the Code of Judicial Conduct) of the Rules Regulating The Florida Bar during her judicial campaign. We conclude that the JQC Hearing Panel’s findings are supported by clear and convincing evidence. For the violations in this case, the Hearing Panel recommended: (1) a public reprimand; (2) a ninety-day suspension without pay; and (3) payment of investigative costs and the costs of these proceedings. We approve the sanction recommended by the Hearing Panel.

I. BACKGROUND

Judge Shepard took office as a circuit court judge in the Ninth Judicial Circuit after a contested election in August 2014. This case arose out of charges brought against Judge Shepard alleging that she circulated a “deceptive” and “misleading” advertisement during her campaign for election to judicial office.

On September 24, 2015, the JQC Investigative Panel filed a notice of formal charges against Judge Shepard under article V, section 12(b) of the Florida Constitution and Florida Judicial Qualifications Commission Rule 6(f). The notice of formal charges alleged violations of Canons 1 (judge shall uphold the integrity and independence of the judiciary), 2A (judge shall respect and comply with the law and shall act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary), 7A(3)(b), 7A(3)(c) (candidate shall prohibit employees and officials who serve at the pleasure of the candidate, and shall discourage other employees and officials subject to the candidate’s direction and control, from doing on the candidate’s behalf what the candidate is prohibited from doing under the Code of Judicial Conduct), 7A(3)(d) (candidate, except to the extent permitted by Canon 7C(1), shall not authorize or knowingly permit any other person to do for the candidate what the candidate is prohibited from doing under the Code of Judicial Conduct), and 7A(3)(e)(ii) of the Florida Code of Judicial Conduct, and was amended on January 8, 2016, to allege violations of Rule 4-8.2(b) of the Rules Regulating The Florida Bar. The Amended Notice of Formal Charges set forth in relevant part:

1. During your contested 2014 judicial campaign both you and your opponent sought the endorsement of the Orlando Sentinel newspaper. The Orlando Sentinel chose to endorse your opponent, Norberto Katz. In them endorsement they highlighted his experience. They also noted that Mr. Katz had been suspended from the Florida Bar in 1995 for misconduct. They noted that he had diligently worked to rebuild his reputation and had become chair of the Bar’s family law section and had been endorsed by 18 past Orange County Bar presidents, a clear indication that he had regained his good standing within the legal community.
2. Prior to the Orlando Sentinel formally selecting Mr. Katz, you circulated a campaign advertisement that stated:
“Ms. Shepard has done well. She has kept her promises. She has worked hard. She has maintained her integrity.”— The Orlando Sentinel.
3. This quotation was deceptive because it was actually an endorsement you received during a 1994 campaign for re-election to the Florida House. Compounding the mendacity, your use of this quote on the advertisement did not include the date that the Sentinel had actually endorsed you.
4. In defending your undated use of this 20-year-old endorsement you stated that you were attempting to show that you had been in public service before, and had previously earned the public’s trust. However, nowhere on this advertisement is there a reference to your prior public service as a member of the Florida House. In fact, in quoting the prior endorsement, you purposefully excluded parts of the original endorsement that made reference to your legislative service.

(Emphasis and alteration omitted.)

Judge Shepard answered, denying that her advertisement was “either intentionally or actually deceptive” or violative of Canons 1, 2A, 7A(3)(b), 7A(3)(c), 7A(3)(d), or 7A(3)(e)(ii) of the Florida Code of Judicial Conduct. Judge Shepard denied that she attempted to knowingly mislead anyone through her advertisement. Judge Shepard asserted that “[t]here is no indication that [her] integrity or character underwent a fundamental transformation in the intervening [twenty] years since being recognized and praised by the Orlando Sentinel,” “the Orlando Sentinel did not recede [or withdraw] from their earlier evaluation of [her] integrity and diligent performance in public office,” and the statements made in her advertisement were correctly attributed and truthful. Judge Shepard cited to In re Kinsey, 842 So.2d 77 (Fla. 2003), and further claimed that she could not be found guilty of violating Canons 1 and 2A because she “was not a judge as defined by the Canons of Judicial Conduct and the Florida Supreme Court at the time [the conduct set forth in the Amended Notice of Formal Charges occurred and] the quoted language was used.” Judge Shepard also asserted that she could not be found guilty of violating Canons 7A(3)(b)-(d) because the Amended Notice of Formal Charges purportedly contained insufficient factual allegations to support the charges.

Judge Shepard raised a number of defenses within her answer, including that Canon 7A(3)(e)(ii) is unconstitutional on its face and as applied and violates the First Amendment to the United States Constitution. Judge Shepard further asserted that Rule 4-8.2(b) of the Rules Regulating The Florida Bar had “no applicability to' the present inquiry.”

On April 8, 2016, an evidentiary hearing was held before the Hearing Panel. The Hearing Panel issued its “Findings of Fact, Conclusions of Law and Recommendations of the Hearing. Panel, Florida Judicial Qualifications Commission” (Findings) on June 9, 2016. In re Judge Kimberly Michele Shepard, No. 14-488 (Fla. Jud. Qual. Comm’n June 9, 2016).

II. FINDINGS OF THE HEARING PANEL

According to the Hearing Panel, then-attorney Shepard “served as a legislator in the Florida House of Representatives” from 1992 to 1994. Id. at 5. In 1994, then-attorney Shepard “received the Orlando Sentinel’s endorsement for her legislative reelection campaign.” Id. The Orlando Sentinel’s 1994 endorsement was titled “Shepard, with enthusiasm” and stated in relevant part:

[M]s. Shepard has done well. She has kept her promises. She has worked hard. She has legislated effectively. She has maintained her integrity. She has served her constituents diligently.

Id. (alteration in original) (emphasis omitted). In 2014, prior to becoming a judge, then-attorney Shepard “launched a bid and qualified for judicial office.” Id. Then-attorney Shepard “signed a ‘Statement of Candidate for Judicial Office’ acknowledging that she had received, read and understood the requirements of Florida’s Code of Judicial Conduct.” Id. at 6. Then-attorney Shepard “ran for judicial office against Norberto Katz, a child support hearing officer” whom she “knew ... had been previously disciplined for ethics violations.” Id. Then-attorney Shepard “felt that if no one would challenge [Mr. Katz] and provide a significant challenge to him that he would arrive in office without the public having any real idea of what his disciplinary record is.” Id “During the campaign, both candidates appeared for an interview before the Orlando Sentinel’s editorial board.” Id. On July 26, 2014, the Orlando Sentinel endorsed Mr. Katz, stating in part that he “has worked diligently to rebuild his reputation” and “[w]e don’t think his 90-day suspension [by The Florida Bar] in 1996 should carry with it a lifetime ban from the bench.” Id. at 7-8. Thereafter, then-attorney Shepard distributed the judicial campaign advertisement at issue. Id. at 8. The advertisement compared then-attorney Shepard to Mr. Katz in multiple categories and stated in relevant part:

“Ms. Shepard has done well. She has kept her promises. She has worked hard. She has maintained her integrity.”— The Orlando Sentinel

Id.

The Hearing Panel heard testimony from Donald Lykkebak, Esquire, an individual lacking any “involvement with or stake in the Katz campaign.” Id at 9. Mr. Lykkebak received then-attorney Shepard’s advertisement in the mail after the Orlando Sentinel endorsed Mr. Katz. Id “Mr. Lykkebak read the Orlando Sentinel, knew that its 2014 endorsement had gone to Mr. Katz and believed that [then-attorney Shepard’s advertisement] was ‘untruthful,’ ‘deceptive,’ and intended to deceive the public.” Id Mr. Lykkebak also believed that the advertisement “was ‘purposefully edited’ to remove the 1994 date, and any reference to [then-attorney] Shepard’s legislative service.” Id. The Hearing Panel also heard testimony from Judge Shepard and the three witnesses called in her defense. Id at 9-14. Judge Shepard “disclaimed any intent to deceive or mislead.” Id at 11.

The Hearing Panel found that the advertisement:

purported to be a direct quotation taken from the Orlando Sentinel, but significantly (1) omitted the 1994 date of the newspaper’s endorsement; (2) omitted the fact that this statement was twenty-years old, and made in connection with a 1994 legislative race, not the current judicial race; and (3) was substantially edited to delete all reference to [then-attorney] Shepard’s legislative service. Both the intervening sentence and end sentence of the paragraph of the [Orlando Sentinel’s 1994] endorsement were removed without any indication.

Id. at 8-9 (emphasis omitted). The Hearing Panel further found that “[then-attorney] Shepard knowingly misrepresented facts surrounding [the Orlando Sentinel’s 1994] endorsement” in the advertisement. Id. at 22. The Hearing Panel explained that “[b]y knowingly deleting the 1994 date of the Orlando Sentinel’s endorsement, and all references to her legislative service, [then-attorney] Shepard made it appear that she had received the Orlando Sentinel’s current endorsement, which was patently untrue.” Id, at 19. The Hearing Panel also found that then-attorney Shepard “deliberately]” deleted from the advertisement two sentences from the Orlando Sentinel’s 1994 endorsement relating to her legislative service. Id at 13. The Hearing Panel concluded:

[Then-attorney Shepard’s] selective editing of the [Orlando Sentinel’s] 1994 endorsement, in context, was much more than a matter of inexact punctuation, or a mistake. ... [Then-attorney] Shepard believed Mr. Katz to be unworthy of judicial office, and that any action she undertook to defeat him was justified. In doing so, she knowingly misled the public by campaign literature which implied that she was endorsed by the Orlando Sentinel, when this was untrue.

Id. at 15.

Ultimately, the Hearing Panel found Judge Shepard not guilty of violating Canons 1 and 2A of the Florida Code of Judicial Conduct under In re Kinsey. Id. The Hearing Panel also found Judge Shepard not guilty of violating Canons 7A(3)(c) and 7A(3)(d) because “[t]here was no allegation or proof that any employee or official of [then-attorney Shepard’s] campaign or that any person other than [then-attorney Shepard] engaged in conduct prohibited by the judicial canons.” Id. at 20. However, the Hearing Panel found Judge Shepard guilty of violating Canon 7A(3)(e)(ii) “by knowingly misrepresenting ‘other facts’ concerning her candidacy” and Canon 7A(3)(b) “by acting in a manner inconsistent with integrity of the judiciary by these knowing misrepresentations.” Id. at 20-21. The Hearing Panel further found Judge Shepard guilty of violating Rule 4-8.2(b) of the Rules Regulating The Florida Bar. Id. at 21. Accordingly, the Hearing Panel recommended: (1) a public reprimand; (2) a ninety-day suspension without pay; and (3) payment of investigative costs and the costs of these proceedings. Id. at 22-23.

After the Hearing Panel’s Findings were filed, this Court issued an order to Judge Shepard to show cause why the recommended action should not be granted. Both Judge Shepard and the JQC responded in detail to the order to show cause.

III. ANALYSIS

A. First Amendment Claim

We first address Judge Shepard’s claim that Canon 7A(3)(e)(ii) violates the First Amendment to the United States Constitution. The constitutionality of a Canon of Judicial Conduct is a pure question of law subject to de novo review. See, e.g., Zingale v. Powell, 885 So.2d 277, 280 (Fla. 2004) (“[C]onstitutional interpretation, like statutory interpretation, is performed de novo.”).

“Judges are not politicians, even when they come to the bench by way of the ballot. And a State’s decision to elect its judiciary does not compel it to treat judicial candidates like campaigners for political office.” Williams-Yulee v. Fla. Bar, — U.S. -, 135 S.Ct. 1656, 1662, 191 L.Ed.2d 570 (2015). Therefore, “States may regulate judicial elections differently than they regulate political elections, because the role of judges differs from the role of politicians.” Id. at 1667. The Supreme Court’s “precedents applying the First Amendment to political elections have little bearing” in the context of judi: cial elections. Id.

Canon ■ 7A(3)(e)(ii) provides: “A candidate for a judicial office ... shall not ... knowingly misrepresent the identity, qualifications, present position or other fact concerning the candidate or an opponent.” On its face, Canon 7A(3)(e)(ii) prohibits a judicial candidate from knowingly misrepresenting any fact concerning the candidate or an opponent. Canon 7A(3)(e)(ii) thus restricts a judicial candidate’s speech. Therefore, in order to be constitutional and not in violation of the First Amendment, Canon 7A(3)(e)(ii) “must be narrowly tailored to serve a compelling state interest.” Florida Bar v. Williams-Yulee, 138 So.3d 379, 384 (Fla. 2014), aff'd sub nom. Williams-Yulee v. Fla. Bar, — U.S. -, 135 S.Ct. 1656, 191 L.Ed.2d 570 (2015); see Republican Party of Minn. v. White, 536 U.S. 765, 774-75, 122 S.Ct. 2528, 153 L.Ed.2d 694 (2002).

Canon 7A(3)(e)(ii) furthers Florida’s compelling interest in preserving public confidence in the integrity of the judiciary. As this Court has explained, “Florida has a compelling interest in protecting the integrity of the judiciary and maintaining the public’s confidence in an impartial judieia-ry Florida Bar v. Williams-Yulee, 138 So.3d at 385; see, e.g., In re Kinsey, 842 So.2d at 87; In re Code of Judicial Conduct (Canons 1, 2, & 7A(1)(b)), 603 So.2d 494, 497 (Fla. 1992). “Canon 7A(3)(e)(ii) is intended to preserve the integrity of the judiciary and maintain the public’s confidence in a fair, impartial, and independent judiciary.” In re Dempsey, 29 So.3d 1030, 1033 (Fla. 2010). “The concept of public confidence in judicial integrity does not easily reduce to precise definition, nor does it lend itself to proof by documentary record. But no one denies that it is genuine and compelling.” Williams-Yulee v. Fla. Bar, 135 S.Ct. at 1667. A judicial candidate who knowingly misrepresents any fact concerning the candidate or an opponent necessarily intends to mislead the public concerning the judicial election, thus undermining the public’s confidence in the -integrity of the judiciary. See, e.g., In re Renke, 933 So.2d 482, 495 (Fla. 2006). Such conduct “raises an appearance of impropriety and calls into question, in the public’s mind, the judge’s,” Florida Bar v. Williams-Yulee, 138 So.3d at 385, integrity. Florida thus has a compelling state interest “in safeguarding the public’s confidence in the honesty of its judiciary.” Winter v. Wolnitzek, 834 F.3d 681, 693 (6th Cir. 2016).

Canon 7A(3)(e)(ii) is narrowly tailored to serve Florida’s compelling interest in preserving public confidence in the integrity of the judiciary. Canon 7A(3)(e)(ii) prohibits the narrowest form of judicial candidate speech necessary to safeguard the public’s confidence in the honesty of its judiciary: a judicial candidate’s knowing misrepresentation of any fact concerning the candidate or an opponent. See, e.g., In re Dempsey, 29 So.3d at 1033; In re Renke, 933 So.2d at 488; In re Kinsey, 842 So.2d at 90. Canon 7A(3)(e)(ii) does not unconstitutionally “chill” a judicial candidate’s speech because it does not punish negligent misrepresentations of fact concerning the candidate or an opponent. See Brown v. Hartlage, 456 U.S. 45, 61, 102 S.Ct. 1523, 71 L.Ed.2d 732 (1982) (“The chilling effect of ... absolute accountability for factual misstatements in the course of political debate is incompatible with the atmosphere of free discussion contemplated by the First Amendment in the context of political campaigns.’’). Canon 7A(3)(e)(ii)’s “other fact” clause only prohibits a judicial candidate from knowingly making a misrepresentation of fact concerning the candidate or an opponent. See, e.g., In re Dempsey, 29 So.3d at 1033; In re Renke, 933 So.2d at 488; In re Kinsey, 842 So.2d at 90. Therefore, Canon 7A(3)(e)(ii) is narrowly tailored because it safeguards the public’s confidence in the honesty of its judiciary while maintaining sufficient “breathing space” for judicial candidates to exercise them First Amendment rights. See Brown, 456 U.S. at 61, 102 S.Ct. 1523.

Judge Shepard argues that Canon 7A(3)(e)(ii)’s “other fact” clause is over-broad and vague. We disagree. “When legislation is drafted so that it may be applied to conduct that is protected by the First Amendment, it is said to be unconstitutionally overbroad.” Wyche v. State, 619 So.2d 231, 235 (Fla. 1993). “A statute or ordinance is void for vagueness when, because of its imprecision, it fails to give adequate notice of what conduct is prohibited.” Id at 236. Canon 7A(3)(e)(ii) is not overbroad: it prohibits a judicial candidate from knowingly making a misrepresentation of fact concerning the candidate or an opponent and, as explained previously, the First Amendment permits this particular regulation of speech because it withstands strict scrutiny. Canon 7A(3)(e)(ii) is not void for vagueness: it is sufficiently precise to inform a person of ordinary intelligence what judicial candidate statements are proscribed—knowing misrepresentations of fact concerning the candidate or an opponent. Accordingly, Canon 7A(3)(e)(ii) is facially constitutional.

Judge Shepard asserts that Canon 7A(3)(e)(ii) is unconstitutional as applied to her judicial campaign advertisement. Specifically, Judge Shepard claims that she cannot be punished for distributing four true statements regarding her reputation for character and integrity and correctly attributing those statements to the Orlando Sentinel. But the so-called “four true facts” were distorted and misrepresented because they were taken out of context. Judge Shepard violated Canon 7A(3)(e)(ii)’s “other fact” clause by “knowingly misrepresenting] facts” surrounding the Orlando Sentinel’s 1994 endorsement in her judicial campaign advertisement. In re Judge Kimberly Michele Shepard, No. 14-488, at 22 (Fla. Jud. Qual. Comm’n June 9, 2016). Then-attorney Shepard “knowingly,” id at 19, and “deliberate[ly],” id. at 13, deleted from the advertisement “the intervening sentence ... of the paragraph of the [Orlando Sentinel’s 1994] endorsement ... without any indication,” id. at 9. That sentence stated: “She has legislated effectively.” Id. at 5 (emphasis- omitted). The advertisement thus falsely purported to quote language from the endorsement verbatim when, in fact, it “was substantially edited to delete all reference to [then-attorney] Shepard’s legislative service.” Id. at 9. The record on review further demonstrates that then-attorney Shepard knew how to use, and used, an ellipsis to indicate an omission within a quotation on the opposite side of the same advertisement. Additionally, the 1994 date of the Orlando Sentinel endorsement and the end sentence of the paragraph of the endorsement relating to her legislative service were omitted from the advertisement. As explained by the Hearing Panel, “The Judge’s selective editing of the [Orlando Sentinel’s] 1994 endorsement, in context, was much more than a matter of inexact punctuation, or a mistake. ... [Then-attorney] Shepard believed Mr. Katz to be unworthy of judicial office, and that any action she undertook to defeat him was justified.” Id. at 15. The First Amendment does not protect such knowing misrepresentations of fact by candidates for judicial office. Accordingly, Canon 7A(3)(e)(ii) is constitutional as applied to then-attorney Shepard’s advertisement.

B. Due Process Claim

We next address Judge Shepard’s claim that the JQC violated her right to due process. “Procedural due process requires that a judge be given notice of the proceedings, that the judge be given an opportunity to be heard, and that the proceedings against the judge be essentially fair.” In re Graziano, 696 So.2d 744, 750 (Fla. 1997). “Additionally, due process requires the JQC to be in substantial compliance with its procedural rules.” Id.

First, Judge Shepard asserts that the Investigative Panel violated her right to due process by improperly alleging violations of four judicial canons—Canons 1, 2A, 7A(3)(c), and 7A(3)(d)—for which there purportedly could be no probable cause. This claim lacks merit because the Hearing Panel ultimately found Judge Shepard not guilty of violating Canons 1, 2A, 7A(3)(c), and 7A(3)(d). Regardless, the Investigative Panel did not violate Judge Shepard’s right to due process by alleging violations of these four canons. The Amended Notice of Formal Charges informed Judge Shepard that the Investigative Panel was asserting violations of Canons 1, 2A, 7A(3)(c), and 7A(3)(d). The Amended Notice of Formal Charges also informed Judge Shepard of her right to file a written answer to these charges. Judge Shepard was, in fact, given an opportunity to be heard on these charges. Judge Shepard filed written pleadings and motions, and appeared before the Investigative and Hearing Panels of the JQC to contest these charges. Judge Shepard received rulings on her pleadings and motions, either from the Chair of the Hearing Panel or the full Hearing Panel, in conformity with the JQC’s procedural rules. See In re Graziano, 696 So.2d at 750; Fla. Jud. Qual. Comm’n R. 7(b) (“The Chair of the Hearing Panel shall dispose of all pretrial motions. These motions may be heard by teleconference or be determined with or without hearings. The Chair’s disposition of motions shall be subject to review by the full Hearing Panel.”). Although Judge Shepard may disagree with the Investigative Panel’s Amended Notice of Formal Charges, she has failed to demonstrate that the proceedings were unfair.

Second, Judge Shepard asserts that the Investigative Panel violated her right to due process by erroneously introducing JQC Exhibits 5, 7, and 8 at the final hearing contrary to two of her motions. This claim is not preserved for review because it differs from the one raised before the Hearing Panel. See Smith v. State, 931 So.2d 790, 798 (Fla. 2006); Spann v. State, 857 So.2d 845, 856 (Fla. 2003).

Third, Judge Shepard asserts that the Investigative Panel violated her right to due process by improperly introducing evidence at the final hearing—over her objections—purportedly excluded by sections 90.403 and 90.404, Florida Statutes. Judge Shepard has failed to explain why the evidence introduced by the Investigative Panel must be excluded under those statutory provisions. Accordingly, this claim is inadequately briefed and is not preserved for review. See Duest v. Dugger, 555 So.2d 849, 852 (Fla. 1990) (“The purpose of an appellate brief is to present arguments in support of the points on appeal. Merely making reference to arguments below without further elucidation does not suffice to preserve issues .... ”).

Fourth, Judge Shepard asserts that the Hearing Panel violated her right to due process by denying her a meaningful opportunity to cross-examine Mr. Lyk-kebak regarding his understanding of the allegation with which Judge Shepard was charged. Judge Shepard has failed to explain how she was denied a meaningful opportunity to cross-examine Mr. Lykke-bak. Accordingly, this claim is inadequately briefed and is not preserved for review. See id.

And fifth, Judge Shepard asserts that the Hearing Panel violated her right to due process by denying her the opportunity to discover certain documents related to the Investigative Panel’s original complaint. However, the Hearing Panel did not violate Judge Shepard’s right to due process by denying her discovery requests because the documents sought by Judge Shepard are confidential under the Florida Constitution and the Florida Judicial Qualification Rules. See art. V, § 12(a)(4), Fla. Const.; In re Graziano, 696 So.2d at 751-52; Fla. Jud. Qual. Comm’n R. 12(c), 23(a). The Hearing Panel substantially complied with its procedural rules, and nothing within this record suggests that the Investigative Panel withheld non-confidential documents from Judge Shepard. Accordingly, we deny Judge Shepard’s final due process claim.

C. Findings of the Hearing Panel

“This Court reviews the findings of the JQC to determine whether the alleged violations are supported by clear and convincing evidence .... ” In re Shea, 110 So.3d 414, 418 (Fla. 2013) (quoting In re Woodard, 919 So.2d 389, 390 (Fla. 2006)). “This quantum of proof is an intermediate standard, more than ⅛ preponderance of the evidence,’ but less than ‘beyond and to the exclusion of a reasonable doubt.’” In re Hawkins, 151 So.3d 1200, 1212 (Fla. 2014) (quoting In re Holloway, 832 So.2d 716, 726 (Fla. 2002)). “If the findings meet this' intermediate standard, then they are of persuasive force and are given great weight.” In re Turner, 76 So.3d 898, 901 (Fla. 2011) (quoting In re Graziano, 696 So.2d at 753). The Hearing Panel found that Judge Shepard violated Canons 7A(3)(e)(ii) and 7A(3)(b) of the Florida Code of Judicial Conduct and Rule 4-8.2(b) of the Rules Regulating The Florida Bar. We conclude that the Hearing Panel had before it clear and convincing evidence to support these findings.

Judge Shepard argues that there is no clear and convincing evidence to support the Hearing Panel’s finding that she violated Canon 7A(3)(e)(ii), which provides: “A candidate for a judicial office ... shall not ... knowingly misrepresent the identity, qualifications, present position or other fact concerning the candidate or an opponent.” Specifically, Judge Shepard asserts that the record does not establish clear and convincing evidence that she knowingly misrepresented that she had obtained the Orlando Sentinel’s 2014 endorsement in her judicial campaign advertisement. However, Judge Shepard misapprehends the finding of the Hearing Panel. The Hearing Panel ultimately found that Judge Shepard violated Canon 7A(3)(e)(ii) by knowingly misrepresenting the Orlando Sentinel’s 1994 endorsement in her advertisement and that this misrepresentation made it appear that she had received the Orlando Sentinel’s 2014 endorsement.

We conclude that clear and convincing evidence supports the Hearing Panel’s finding that Judge Shepard violated Canon 7A(3)(e)(ii). At the final hearing, the Hearing Panel received and accepted into evidence the judicial campaign advertisement at issue and the Orlando Sentinel’s 1994 endorsement. Then-attorney Shepard’s advertisement purports to quote language from the Orlando Sentinel’s 1994 endorsement verbatim. It does not. The intervening sentence of the paragraph of the 1994 endorsement relating to her legislative service was deleted from the advertisement without any indication. Additionally, the 1994 date of the Orlando Sentinel endorsement and the end sentence of the paragraph of the endorsement relating to her legislative service were omitted from the advertisement.

The Hearing Panel heard testimony from Mr. Lykkebak regarding the advertisement. Mr. Lykkebak received then-attorney Shepard’s advertisement in the mail after the Orlando Sentinel endorsed Mr. Katz. Mr. Lykkebak read the Orlando Sentinel, knew that its 2014 endorsement had gone to Mr. Katz, and believed that then-attorney Shepard’s advertisement was untruthful, deceptive, and intended to deceive the public. Mr. Lykkebak also believed that the advertisement was purposefully edited to remove the 1994 date and any reference to then-attorney Shepard’s legislative service. The Hearing Panel also heard testimony from Judge Shepard and the three witnesses called in her defense.

Judge Shepard disclaimed any intent to deceive or mislead. However, after considering the evidence and the testimony of the witnesses, the Hearing Panel found that then-attorney Shepard knowingly misrepresented facts surrounding her 1994 endorsement in her advertisement. The Hearing Panel specifically found that then-attorney Shepard knowingly and deliberately deleted from the advertisement the intervening sentence of the paragraph of the 1994 endorsement relating to her legislative service without any indication and that she omitted from the advertisement the 1994 date of the Orlando Sentinel endorsement. Then-attorney Shepard also omitted from the advertisement the end sentence of the paragraph of the 1994 endorsement relating to her legislative service. As explained by the Hearing Panel, then-attorney Shepard’s selective editing of the 1994 endorsement, in context, was much more than a matter of inexact punctuation, or a mistake. The Hearing Panel concluded that then-attorney Shepard believed her opponent to be unworthy of judicial office and that any action she undertook to defeat him was justified. A review of the record thus demonstrates that clear and convincing evidence supports the Hearing Panel’s finding that Judge Shepard violated Canon 7A(3)(e)(ii).

Judge Shepard argues that the Hearing Panel erroneously found that she violated Canon 7A(3)(b) and Rule 4-8.2(b). Judge Shepard’s argument lacks merit. Canon 7A(3)(b) provides: “A candidate for a judicial office ... shall ... act in a manner consistent with the ... integrity ... of the judiciary.” Rule 4-8.2(b) provides: “A lawyer who is a candidate for judicial office shall comply with the applicable provisions of Florida’s Code of Judicial Conduct.” Because Judge Shepard was found to have violated Canon 7A(3)(e)(ii), her conduct also falls within the purview of Canon 7A(3)(b) and Rule 4-8.2(b). Accordingly, clear and convincing evidence supports the Hearing Panel’s finding that Judge Shepard violated Canon 7A(3)(b) and Rule 4-8.2(b).

IV. DISCIPLINE

“According to article V, section 12(c)(1) of the Florida Constitution, this Court has discretion to either accept, reject, or modify the commission’s findings and recommendation of discipline." In re Renke, 933 So.2d at 493. “Although this Court gives the findings and recommendations of the JQC great weight, the ultimate power and responsibility in making a determination to discipline a judge rests with this Court.” In re Flood, 150 So.3d 1097, 1098 (Fla. 2014) (quoting In re Renke, 933 So.2d at 493). “[T]he object of disciplinary proceedings is not for the purpose of inflicting punishment, but rather to gauge a judge’s fitness to serve as an impartial judicial officer.” In re Dempsey, 29 So.3d at 1034 (alteration in original) (quoting In re McMillan, 797 So.2d 560, 571 (Fla. 2001)). “It is clear that a member of the judiciary or judicial candidate should not mislead the public by placing factually incorrect statements in campaign materials.” Id. at 1033. This Court has “repeatedly placed judicial candidates on notice that this type of misconduct will not be tolerated.” Id.

As explained previously, the Hearing Panel recommended: (1) a public reprimand; (2) a ninety-day suspension without pay; and (3) payment of investigative costs and the costs of these proceedings. Judge Shepard argues that the Hearing Panel’s recommendation of discipline is disproportionate, unjustifiably severe, and inconsistent with this Court’s precedent. To the contrary, the recommended discipline is consistent with this Court’s precedent.

Judge Shepard’s conduct warrants more than a public reprimand. In In re Dempsey, this Court affirmed a public reprimand where the judge deliberately placed misleading information in her campaign materials for the purpose of bolstering her own experience and credibility to the voting public. In re Dempsey, 29 So.3d at 1033-34. However, the judge in In re Dempsey admitted to the alleged wrongdoing, apologized for her improper conduct, accepted full responsibility, and accepted the public reprimand. Id. at 1032. Here, Judge Shepard engaged in far more egregious conduct than the judge in In re Dempsey. Then-attorney Shepard knowingly misrepresented the Orlando Sentinel’s 1994 endorsement in her advertisement, which made it appear that she had received the Orlando Sentinel’s 2014 endorsement. But, unlike the judge in In re Dempsey, Judge Shepard has not shown any remorse for her misconduct. See Inquiry Concerning Davey, 645 So.2d 398, 405 (Fla. 1994) (“Where a judge admits wrongdoing and expresses remorse before the Commission, this candor reflects positively on his or her present fitness to hold office and can mitigate to some extent a finding of misconduct.”). Moreover, Judge Shepard has not apologized or acknowledged her wrongdoing. See In re Holloway, 832 So.2d at 724 (taking into consideration a judge’s admission of guilt and apology).

However, Judge Shepard’s conduct does not warrant the ultimate discipline of removal from office. In In re Renke, this Court ordered removal where the judge made numerous flagrant misrepresentations in his campaign materials and committed multiple campaign finance violations. In re Renke, 933 So.2d at 484. In one campaign brochure in particular, the judge intentionally misrepresented that he was endorsed by local firefighters. Id. at 487-88. Here, then-attorney Shepard committed similar misconduct by knowingly misrepresenting the Orlando Sentinel’s 1994 endorsement in a single advertisement. But, unlike the judge in In re Renke, then-attorney Shepard did not make numerous misrepresentations in her campaign materials or engage in campaign finance violations. Judge Shepard’s misconduct, although serious, is not sufficient to “demonstrate a present unfitness to hold office.” Art. V, § 12(c)(1), Fla. Const.

y. CONCLUSION

Judge Kimberly Michele Shepard is hereby suspended without pay for ninety days from her duties as a judge of the Ninth Judicial Circuit. We order Judge Shepard to pay investigative costs and the costs of these proceedings, and we remand this case to the JQC for a determination of the amount of such costs. We also command Judge Shepard to appear before this Court for the administration of a public reprimand at a time to be set by the Clerk of this Court. The effective date of suspension shall be on a date within fifteen days of the issuance of this opinion as determined by the Chief Judge of the Ninth Judicial Circuit. Once the effective date is determined, the Court Administrator for the Ninth Judicial Circuit shall submit a personnel action request (PAR) form to the Personnel Office of the Office of the State Courts Administrator for processing.

It is so ordered.

LABARGA, C.J., and PARIENTE, LEWIS, QUINCE, CANADY, POLSTON, and LAWSON, JJ., concur.

      . Judge Shepard testified that the advertisement was circulated after the Orlando Sentinel endorsed Mr. Katz.

      . We discuss only those charges on which Judge Shepard was found guilty. The Hearing Panel found Judge Shepard not guilty of violating Canons 1, 2A, 7A(3)(c), and 7A(3)(d).


author: Conner, J.

text:
    Jane DOE NO. 3, Appellant, v. NUR-UL-ISLAM ACADEMY, INC., a Florida corporation, Nur-Ul-Islam of South Florida, Inc., a Florida corporation, and Kem Hussain, an individual, Appellees.
    No. 4D15-4722
    District Court of Appeal of Florida, Fourth District.
    [March 22, 2017]

      Scott A. Mager, Elizabeth 0. Hueber, and Gary S. Gaffney of, Mager Paruas, LLC, Hollywood, for appellant.
    Daniel M. Schwarz and Scott A. Cole of Cole Scott & Kissane, Miami, for appellee, Nur-Ul-Islam of South Florida, Inc.
    Michael R. D’Lugo of Wicker, Smith, O’Hara, McCoy & Ford, P.A., Orlando, for appellees, Nur-Ul-Islam Academy, Inc. and Kem Hussain.
   Conner, J.

Jane Doe No. 3 (“Doe”) appeals the final judgment dismissing her complaint with prejudice, asserting the trial court erred in finding her claims barred by the statute of limitations. Because we agree with Doe’s argument that the defense is not apparent from the four corners of her complaint, we reverse the dismissal with prejudice.

Pertinent Facts and Trial Proceedings Doe initially filed her complaint against Nur-Ul-Islam of South Florida, Inc. (“the Mosque”), Nur-Ul-Islam Academy, Inc. and Kem Hussain (collectively, “the Academy”) in November 2014. Therein, she alleged that the Mosque operated the Academy as a private school, and the Academy “was a subordinate and/or servient corporation, and was a wholly-owned subsidiary of’ the Mosque. Doe was a student at the Academy during the 2004-2005 school year, and she alleged that, in 2004, she “was the victim of sexual abuse on school grounds, during school hours, perpetrated by [a teacher].” On the same day that she was abused, Doe reported the abuse to “an official” of the Academy. Doe alleged that, in response to her report, the Academy took, actions that “promoted and encouraged further harm to her” by: (1) failing to fully investigate; (2) calling Doe a liar and immoral when the teacher denied the allegation; (3) failing to report the abuse, in violation of Florida law; (4) failing to report the allegation of abuse to Doe’s parents; and (5) taking retaliatory action against Doe. Doe alleged the retaliatory conduct included “condemning her as a liar, ridiculing her as being an immoral person, shunning her socially, addressing her in a rude manner, encouraging other students to condemn her, and placing her back into [the teacher]’s classroom—without any other adult supervision—for another eight months,” where the teacher sexually harassed and engaged in abusive behavior towards Doe. Doe further alleged the retaliatory and abusive actions by the Academy “[were] specifically designed and intended to silence [Doe] and to prevent her from contacting legal authorities and taking any legal action.”

Doe also alleged that the Academy’s retaliatory conduct “succeeded in intimidating her into silence until [] recent public disclosures that [the teacher] had been charged with sex crimes against children and finally had been fired from [the Academy] gave her sufficient mental health safety to be able to contact law enforcement and reveal what she endured in 2004 and 2005.”

Based on the factual allegations, Doe asserted causes of action for negligence, mental and emotional child abuse, and negligent hiring, retention, or supervision against the appellees.

The Mosque and the Aeademy moved to dismiss the complaint, arguing that the claims were barred by the statute of limitations, as well as other grounds not pertinent to our decision.

The trial court entered an order granting the appellees’ motions to dismiss with prejudice and without elaboration. Subsequently, the trial court entered a final order dismissing Doe’s complaint with prejudice. Doe gave notice of appeal.

Appellate Analysis

“The standard of review of orders granting motions to dismiss with prejudice is de novo.” Burgess v. N. Broward Hosp. Dist, 126 So.3d 430, 433 (Fla. 4th DCA 2013) (citing MEBA Med. & Benefits Plan v. Lago, 867 So.2d 1184, 1186 (Fla. 4th DCA 2004)).

Although the trial court did not state a reason for dismissing Doe’s complaint, the parties agree that the reason was due to the statute of limitations defense. Therefore, we analyze the issue under the backdrop that the trial court dismissed the action with prejudice because the court concluded the allegations, within the four corners of the complaint, demonstrated that the action was barred by the statute of limitations.

Doe argues the dismissal with prejudice was error for two reasons: (1) the complaint does not specifically identify a date when the cause of action accrued, and (2) the appellees are equitably estopped from using the statute of limitations as a defense. Because we agree with Doe’s first reason and find it to be dispositive, we do not analyze the merits of the second reason.

“If the face of the complaint contains allegations which demonstrate the existence of an affirmative defense then such defense can be considered on motion to dismiss. Otherwise an affirmative defense may not be considered on motion to dismiss a complaint.” Frank v. Campbell Prop. Mgmt., Inc., 351 So.2d 364, 364-65 (Fla. 4th DCA 1977) (citations omitted); see also Fla. R. Civ. P. 1.110(d) (“Affirmative defenses appearing on the face of a prior pleading may be asserted as grounds for a motion or defense under rule 1.140(b)[.]”). Thus, our analysis begins with whether the date of the accrual of the cause of action was established within the four corners of the complaint, as a predicate for a statute of limitations defense.

“A statute of limitations ‘runs from the time the cause of action accrues’ which, in turn, is generally determined by the date ‘when the last element constituting the cause of action occurs.’ ” Heamdon v. Graham, 767 So.2d 1179, 1184-85 (Fla. 2000) (quoting § 95.031, Fla. Stat. (1987)). Doe argues that the trial court erred in determining the statute of limitations defense applied to bar her claims because she was a minor at the time of the injury. Instead, she argues that the statute of limitations period begins to run against an injured minor when the minor’s parents knew or should have known about the cause of action or the minor reaches the age of majority. In support of her argument, Doe relies on Drake By and Through Fletcher v. Island Community Church, Inc,, 462 So.2d 1142 (Fla. 3d DCA 1984). There, the Third District deemed it elementary that:

A cause of action cannot be said to have accrued, within the meaning of [the statute of limitations], until an action can be instituted thereon. There must be some person capable of suing or being sued upon the claim in order for the statute to begin to run.

Id. at 1144 (alteration in original) (quoting Berger v. Jackson, 156 Fla. 251, 23 So.2d 265, 269 (Fla. 1945)). Noting that Florida Rule of Civil Procedure 1.210(b) does not allow a minor to bring suit on his or her own behalf, the Third District held:

It follows, then, that the statute of limitations could not begin to run against the minor child in the present case until the parent knew or reasonably should have known those facts which supported a cause of action. Since the complaint in this action alleges that the parent did not have this knowledge, the statute did not commence to run as a matter of law against the minor child.

Id,

Citing to Drake and rule 1.210(b), the First District has also arrived at the same conclusion:

Under Florida Rule of Civil Procedure 1.210 a minor is incapable of bringing an action on his or her own behalf, but can only sue by and through a guardian ad litem, next friend, or other duly appointed representative. Thus, the statute of limitations will begin to run as to the parents or the legal guardian of the minor, in their capacity of next friend, when the parents or guardian knew or reasonably should have known of the invasion of legal rights. Drake v. Island Community Church, Inc., 462 So.2d 1142, 1144 (Fla. 3d DCA 1984), pet. for

rev. denied, 472 So.2d 1181 (Fla.1985). S.A.P. v. State, 704 So.2d 583, 585-86 (Fla. 1st DCA 1997).

The appellees make two arguments in opposing Doe’s position regarding Drake, S.A.P., and rule 1.210(b). First, the appellees argue that Doe’s position is, in essence, a variation on applying the principles of the delayed discovery doctrine. As we observed in Ryan v. Lobo De Gonzalez, 841 So.2d 510, 517 (Fla. 4th DCA 2003):

“The ‘delayed discovery1 doctrine generally provides that a cause of action does not accrue until the plaintiff either knows or reasonably should know of the tortious act giving rise to the cause of action.” Heamdon v. Go-aham, 767 So.2d 1179, 1184 (Fla.2000). In Heamdon, the Florida Supreme Court determined that rather than toll the statute of limitations, the delayed discovery doctrine operates to delay the accrual of a cause of action. Id. The court held that the doctrine was applicable to childhood sexual abuse cases, given the nature of the alleged tortious conduct, its effect on victims and the general application of the doctrine to tort cases. Id. at 1186.[]

The appellees further argue that the delayed discovery doctrine has not been applied to intentional torts. See Cisko v. Diocese of Steubenville, 123 So.3d 83, 84 (Fla. 3d DCA 2013); Doe v. St. John’s Episcopal Parish Day School, Inc., 997 F.Supp.2d 1279, 1286 (M.D. Fla. 2014). However, we do not agree that Doe’s argument revolving around the application of rule 1.210(b) is a variation on the application of the delayed discovery doctrine. Doe’s contention regarding the accrual of her cause of action is based on a separate rule and line of cases that are different from the principles of the delayed discovery doctrine. The rationale for protecting minors using rule 1.210(b) in conjunction with the statute of limitations (an adult must bring the action, so the adult must have knowledge of the injury) to delay accrual of the cause of action is different from the rationale for protecting minors under the doctrine of delayed discovery (the trauma of the injury induces suppression of consciousness) to delay accrual. Moreover, there is no case law which limits the application of rule 1.210(b) to intentional torts.

Second, the appellees argue that Drake is no longer good law, because the legislature amended section 95.051, Florida Statutes, in 1990, six years after Drake, to add the following regarding minors and statutes of limitations:

(1) The running of the time under any statute of limitations except ss. 95.281, 95.35, and 95.36 is tolled by:
(h) The minority or previously adjudicated incapacity of the person entitled to sue during any period of time in which a parent, guardian, or guardian ad litem does not exist, has an interest adverse to the minor or incapacitated person, or is adjudicated to be incapacitated to sue; except with respect to the statute of limitations for a claim for medical malpractice as provided in s. 95.11. In any event, the action must be begun within 7 years after the act, event, or occurrence giving rise to the cause of action.

§ 95.051(l)(h), Fla. Stat. (1990). The ap-pellees contend that this subsection replaced the case law holding that the statute of limitations does not begin to run until the minor’s parents have knowledge, as well as the rule, with the enumerated scenarios. The appellees then argue that, since there were no allegations in the complaint that Doe’s parents did not exist, had an interest adverse to her, or were adjudicated to be incapacitated to sue, Doe does not qualify under the statute for a tolling of the statute of limitations.

We disagree with the appellees’ argument that Drake is no longer good law because the appellees’ argument regarding section 95.051(1), as applied to minors, misses the mark by failing to recognize that rules regarding the tolling of the statute of limitations are distinct from the rules regarding the accrual of a cause of action. As the first sentence of section 95.051(1) makes clear, the legislature is delineating a rule of tolling, not a rule of accrual of a cause of action.

To the extent that the appellees argue the last sentence of section 95.051(l)(i) (formerly section 95.051(l)(h)) creates a statute of repose applicable to this case, we deem the argument to lack merit because after enacting the statute of repose provision in section 95.051(1)© in 1990, the legislature in 2010 enacted a revision to section 95.11 which provides for an unlimited time period for pursuing a cause of action when a child under the age of sixteen is a victim of sexual battery. Section 95.11(9), Florida Statutes, provides:

(9) SEXUAL BATTERY OFFENSES ON VICTIMS UNDER AGE 16.—An action related to an act constituting a violation of s, 794.011 involving a victim who was under the age of 16 at the time of the act may be commenced at any time. This subsection applies to any such action other than one which would have been time barred on or before July 1, 2010.

By enacting a provision establishing an unlimited time period for bring actions by victims of sexually battery at a time when they are younger than sixteen at the time of abuse, the legislature clearly did not intend for the statute of repose bar in section 95.051(l)(i) (or the tolling provisions) to apply. Quite simply, the entitlement to an unlimited period of time for bringing an action negates the application of any tolling or repose provision.

Notably, there is no information in the complaint to indicate when Doe’s parents knew or should have known about the abuse. To the contrary, Doe alleged that, because no one at the Academy told her parents that she reported the abuse, they were prevented from knowing through that means. In any event, the statute of limitations would “start[] running when plaintiff turned eighteen.” Doe v. Dorsey, 683 So.2d 614, 616 (Fla. 5th DCA 1996), abrogated on other grounds by Malicki v. Doe, 814 So.2d 347 (Fla. 2002). However, the issue here is that Doe did not put her birthdate or age in the complaint. Therefore, it cannot be determined at what time she reached the age of majority.

Because we have determined the cause of action did not begin to accrue until Doe’s parents knew or should have known of the abuse (or she reached age eighteen) and the statute of repose would not have extinguished the cause of action until 2011, her cause of action was still viable on July 1, 2010, when section 95.11(9) became effective. Thus, we conclude the statute of repose in section 95.051(l)(i) does not bar her action on our review limited to the four corners of the complaint.

Doe argues the failure to plead facts in her complaint is in her favor, maintaining that, since this information is not within the four corners of the complaint, dismissal was improper. In contrast, the appellees argue that it is unfair to allow a plaintiffs failure to plead a fact that would defeat his or her own claim to block a motion to dismiss. However, the law is well-settled that the facts giving rise to the motion to dismiss must be found within the four corners of the complaint, and therefore, if there is additional information required to support a fatal defense, the recourse would be a motion for summary judgment or trial. Minor v. Bnmetti, 43 So.3d 178, 179 (Fla. 3d DCA 2010) (holding that the “issue would be better addressed on a summary judgment motion or at trial, not on a motion to dismiss,” where the trial court went beyond the four corners of the complaint in granting a motion to dismiss).

We reverse the dismissal with prejudice of Doe’s complaint, and remand the case for further proceedings. Upon remand, the trial court may enter an appropriate order dismissing the complaint without prejudice.

Reversed and remanded.

Taylor and Levine, JJ., concur.

      . In the trial court, three separate plaintiffs brought various causes of action against the appellees in one complaint. The causes of action by Jane Doe No. 3 were the only claims dismissed by the trial court with prejudice. Thus, the other two plaintiffs are not parties to this appeal, and, for ease of reference, we refer to the sole appellant as "Doe.”

      . Kem Hussain was sued as the president of the Academy. Hussain and the Academy were represented by the same law firm below and on appeal. Because Hussain raised the same arguments as the Academy, for ease of reference, we hereafter refer to both defendants as "the Academy.”

      . The rationale for the doctrine is the recognition that “the shock and confusion resultant from childhood molestation, often coupled with authoritative adult demands and threats for secrecy, may lead a child to deny or suppress such abuse from his or her consciousness.” Heamdon, 767 So,2d at 1186.

      . Under the current version of the statute, this subsection was renumbered as "(i).”


author: Per Curiam. Warner, J.,

text:
    Douglas P. REGAN, Appellant, v. Carolyn REGAN, Appellee.
    No. 4D15-2644
    District Court of Appeal of Florida, Fourth District.
    [April 12, 2017]
    Matthew S. Nugent, Adam M. Zborow-ski and Curt Sanchez of the Law Offices of Nugent, Zborowski & Bruce, North Palm Beach, for appellant.
    William T. Viergever of Sonneborn Rut-ter Cooney Viergever Burt & Lury, P.A., West Palm Beach, for appellee.
   Per Curiam.

The former husband appeals an order granting his petition for modification of alimony which reduces alimony to the former wife from $9000 a month, which was agreed to in a mediated settlement, to $7800 a month, which he believes is an insufficient decrease. He contends that the court should have imputed minimum wage income to the former wife and required her to withdraw from her retirement accounts and investments to reduce his alimony obligation even further. The former wife cross appeals the trial court’s decision to reduce her alimony based on her voluntary reduction of her expenses. We affirm.

In its final judgment granting the modification, the court found that the parties had originally agreed in a marital settlement agreement (“MSA”) to $9000 per month in alimony to the former wife, which amount was not tied to her expenses at the time of the dissolution (an affidavit showed the former wife’s expenses at the time of the dissolution were in excess of $15,000 per month). She also received investment assets and retirement accounts, and the court determined that the parties intended that the former wife was entitled to any income derived from these assets, in addition to the $9000, and was not required to diminish that amount.

After the divorce, the former wife significantly reduced her expenses by selling the marital home, moving to a different state, and purchasing a smaller home. Because of her significantly reduced expenses, the court concluded that this constituted a substantial change of circumstances, albeit a voluntary one. The court reduced the former wife’s alimony to $7800 per month, which amount will cover her expenses plus taxes. It refused to impute income to her for work, because the MSA did not contemplate that the former wife would be required to work, nor did it contemplate the former wife using any income from her assets to defray the $9000 per month obligation. Specifically, although the former husband contended that she could create a plan of early withdrawal from her retirement accounts under Internal Revenue Code section 72t (2013), the court found the evidence insufficient to show that this could be accomplished without penalty, and also insufficient to show that her use of this income to support her standard of living was contemplated in the MSA. Moreover, the former husband did not plead imputation of income or use of income from her assets to defray her expenses as grounds for reducing his alimony obligation. He only pled her decrease in expenses as a ground for reduction of his obligation. Both parties appeal this final judgment.

Section 61.14, Florida Statutes (2015), provides for the ability to modify alimony and support which was previously set in a final judgment or in an agreed settlement:

When the parties enter into an agreement for payments for, or instead of, support, maintenance, or alimony, ... or when a party is required by court order to make any payments, and the circumstances or the financial ability of either party changes ... either party may apply to the circuit court ... for an order decreasing or increasing the amount of support, maintenance, or alimony, and the court has jurisdiction to make orders as equity requires, with due regard to the changed circumstances or the financial ability of the parties[,] ... decreasing, increasing, or confirming the amount of separate support, maintenance, or alimony provided for in the agreement or order.

§ 61.14(l)(a), Fla. Stat. Furthermore, the statute also instructs as to the proof necessary to obtain a modification:

Wfiien modification of an existing order of support is sought, the proof required to modify a settlement agreement and the proof required to modify an award established by court order shall be the same.

§ 61.14(7), Fla. Stat.

Although the statute permits modification where the “circumstances or the financial ability of either party changes” and allows the court to modify alimony “as equity requires, with due regard to the changed circumstances or financial ability[,]” § 61.14(l)(a), Fla. Stat., case law has engrafted specific requirements to restrain the wide discretion otherwise given to the court in modification. Pimm v. Pimm, 601 So.2d 534 (Fla. 1992), summarizes these “fundamental prerequisites”:

First, there must be a substantial change in circumstances. Second, the change was not contemplated at the time of final judgment of dissolution. Third, the change is sufficient, material, involuntary, and permanent in nature.

Id. at 536 (citations omitted). Generally, the requirement of the change being involuntary has been applied when an alimony-paying spouse claims a reduction of income so that the spouse is no longer able to afford the alimony ordered or agreed: “The purpose of requiring that a change in circumstance be involuntary to modify support is to ensure that the duty to furnish adequate support is not deliberately avoided.” Vazquez v. Vazquez, 922 So.2d 368, 372 (Fla. 4th DCA 2006); see also Overbey v. Overbey, 698 So.2d 811, 814 (Fla. 1997).

Nevertheless, courts have considered some voluntary changes in circumstances, such as retirement, as permitting modification of alimony depending upon the totality of the circumstances. Pimm, 601 So.2d at 537. Also, courts have reduced an alimony obligation where the substantial change in circumstances has been a reduction of a receiving spouse’s expenses. See Wolfe v. Wolfe, 953 So.2d 632, 635 (Fla. 4th DCA 2007); Antepenko v. Antepenko, 824 So.2d 214, 215 (Fla. 2d DCA 2002).

This case presents one of those circumstances. Given the broad discretion which section 61.14(l)(a) gives the trial judge to make a reduction, “as equity requires with due regard to the changed circumstances,” the trial court did not abuse its discretion • in reducing alimony where the former wife had cut her expenses by more than half, as a result of moving to another state and reducing the size of her home.

Nor did the court abuse its discretion in failing to impute income to the former wife for employment. She had not been employed outside the home for the entire marriage and the MSA did not either specifically or impliedly require the former wife to work to support herself. Thus, the court was merely giving effect to the MSA in not imputing income to the former wife to reduce the former husband’s obligation. Had the parties intended to impute income to the former spouse for purposes of support, they should have put a provision in the MSA, as was done in Gloriando v. Gloriando, 103 So.3d 247 (Fla. 4th DCA 2012), and Schmachtenberg v. Schmachtenberg, 34 So.3d 28 (Fla. 3d DCA 2010). Without it, the court did not abuse its discretion in refusing to impute income to the former wife.

As to the court’s refusal to consider income the former wife could generate by withdrawing income from retirement accounts or other investment accounts, the court found that the MSA never contemplated the use of these funds for the former wife’s support. Any income generated from those funds was for the wife to spend as she wished. Further, the former husband failed to prove that the retirement funds could be accessed without penalty. While former husband cites to Niederman v. Niederman, 60 So.3d 544 (Fla. 4th DCA 2011), for the proposition that a court can look to retirement accounts as a source of income even prior to retirement, in that case, we held that the court did not abuse its discretion in considering the former wife’s ability to withdraw from the retirement account without penalty in determining her income potential. We noted, however, that such withdrawals would not be appropriate where they required withdrawal from principal. In this case, the expert testified that some of the calculations would invade principal. Furthermore, in Niederman, we also noted that the use of such income was not required in determining the resources available to the alimony receiving spouse: “[A]fter consideration of the evidence presented, the court could decline to impute income from retirement accounts for equitable considerations to do justice in the case.” Id. at 550. In this ease, the court declined to do so, and that was well within the court’s discretion based upon consideration of all the circumstances of this case.

For the foregoing reasons, we affirm the final judgment granting modification.

Gerber and Kuntz, JJ., concur.

Warner, J., concurs in part and dissents in part with opinion.

Warner, J.,

concurring in part and dissenting in part.

Because the former wife voluntarily reduced her standard of living to allow her more income to spend on items not directly associated with her living expenses, I would reverse the trial court’s reduction of the former wife’s agreed alimony. As noted in the majority opinion, in order to modify an alimony award, the moving party must show that there has been a substantial change in circumstances which was unanticipated, material, involuntary, and permanent, Pimm v. Pimm, 601 So.2d 534, 535 (Fla. 1992). I would hold that a voluntary reduction in an alimony-receiving spouse’s standard of living is not a ground for reducing an agreed alimony award.

Although the majority cites to two cases in which a voluntary reduction in expenses by an alimony-receiving spouse constituted a change in circumstances sufficient to warrant a reduction in alimony, both are factually distinguishable. In Antepenko v. Antepenko, 824 So.2d 214 (Fla. 2d DCA 2002), the court had awarded alimony to the wife in the final judgment. Later, the former wife sought and obtained an increase of alimony based upon her increased needs. Id. at 214. Some years later, the former husband petitioned for a downward modification of alimony on the ground that the former wife’s needs had decreased significantly. Id. The trial court denied the modification, and the former husband appealed. Id. at 215. The appellate court recited the prerequisites for a modification, including the requirement that the change be substantial, permanent, and involuntary. Id. Noting that the former wife’s needs had decreased by thirty-eight percent from the amount of her needs at the time that the modification increasing alimony was entered, the court concluded that the trial court abused its discretion by not modifying alimony where the former wife’s decreased needs constituted a substantial change in circumstances. Id.

What is unclear from the opinion in An-tepenko is whether the former wife’s decreased needs were still above the standard of living established in the marriage. It appears in the opinion that her needs were still greater than the original award of alimony in the final judgment but less than the amount of the increased alimony she had been awarded later. Id. Thus, Antepenko does not appear to address the issue of whether a voluntary reduction of the standard of living constitutes a change in circumstance which would permit a reduction of agreed alimony.

In Wolfe v. Wolfe, 953 So.2d 632 (Fla. 4th DCA 2007), we reversed the denial of a petition for downward modification of alimony because the trial court had refused to consider the sale of the marital home as a substantial change in circumstance, where it was contemplated at the time of the final judgment. Id. at 637. Additionally, the trial court erred in refusing to consider the former wife’s decreased expenses after she purchased a smaller replacement home. Id. Because the alimony in the final judgment had been set based upon the expenses of living in the marital home when it was contemplated at the time of the final judgment that the home would be sold, we determined that her decreased expenses as a result of the sale should be considered. Id. at 635.

This, too, is substantially different than the facts of this case. Here, the $9000 per month in alimony was not awarded by the trial court based upon the standard of living of the parties. Instead, the parties agreed to the amount, which was considerably less than the amount set in the former wife’s original financial affidavit, which was an exhibit to the MSA. The former husband attached no “strings” to this agreed alimony. How the former wife spends her income from this agreed amount of alimony should not be a ground for reduction. See, e.g., Tinsley v. Tinsley, 502 So.2d 997 (Fla. 2d DCA 1987).

The former husband contends that to allow the former wife additional monies, some of which she puts into a bank account, provides her with a “savings component” to alimony, rejected in Mallard v. Mallard, 771 So.2d 1138 (Fla. 2000). Mallard, however, involved an initial award of alimony by the trial court. Id. at 1139. The parties presented evidence of the amount necessary to cover the wife’s recurring expenses and also of an amount which was deemed “savings alimony,” as the parties throughout their marriage had always saved a portion of their income. Id. The supreme court held that the trial court erred by including “savings alimony” in the calculation of alimony, noting that “[t]he purpose of permanent periodic alimony is to provide for the needs and necessities of life for a former spouse as they were established during the marriage of the parties.” Id. at 1140 (emphasis added). It rejected a “savings” component to alimony, stating that the court may not factor in speculative post-dissolution savings based upon a marital history of frugality. Id. at 1141.

In the case before us, the parties agreed to the amount of alimony to assist in supporting the lifestyle of the former wife as it was established during the marriage. There was no savings component to the alimony as agreed. In fact, the financial affidavit attached to the MSA shows that it was significantly less than what would have been required to support the former wife up to the standard of living of the parties. That the former wife voluntarily decided to reduce her standard of living after the divorce, in order to make funds available either to save or to spend, was her decision. The husband should not benefit because the wife has chosen to spend her money differently after the divorce than she did prior to divorce. The principle of Mallard has no application in these circumstances. To hold otherwise creates disincentives for an alimony-receiving spouse to save for his or her old age or for health care expenses—sometimes holding back on expenditures in the present to make sure resources will be available in the future.

If either party to an MSA thinks that the alimony-receiving spouse should not be allowed to spend an agreed award of alimony as he or she wishes, then the parameters of that spending discretion should be included in the settlement agreement. Where such a provision is not included, I would hold that a voluntary reduction of expenses by an alimony-receiving spouse is not a substantial change of circumstance which would support a reduction of agreed alimony.

In all other respects, I agree with the majority opinion.