author: WOODALL, Justice.

text:
    Ex parte Antonio JACKSON, Jr. (In re Antonio Jackson, Jr. v. State of Alabama).
    1080390.
    Supreme Court of Alabama.
    Aug. 28, 2009.

      Erskine R. Mathis, Birmingham, for petitioner.
    Troy King, atty. gen., and Michael G. Dean, asst. atty. gen., for respondent.

       Justice Shaw was a member of the Court of Criminal Appeals when that court considered this case.

   WOODALL, Justice.

Antonio Jackson, Jr., was convicted of the murder of Willie Jennings and was sentenced to life imprisonment. He appealed to the Court of Criminal Appeals, alleging, among other things, that the trial court had erred in overruling his motion to prohibit the State from introducing evidence of his prior conviction for the capital murder of Tavares Cotrell. The Court of Criminal Appeals affirmed the trial court’s judgment, by an unpublished memorandum from which Judge Welch dissented. Jackson v. State, 33 So.3d 1277 (Ala.Crim.App.2008). Jackson petitioned this Court for the writ of certiorari, which we granted to address whether the Court of Criminal Appeals’ judgment conflicts with Robinson v. State, 528 So.2d 343 (Ala.Crim.App. 1986), and Averette v. State, 469 So.2d 1371 (Ala.Crim.App.1985). We hold that it does; consequently, we reverse the judgment of the Court of Criminal Appeals and remand the case.

Facts and Procedural History

In its unpublished memorandum, the Court of Criminal Appeals provided the following facts regarding Jennings’s murder:

“The evidence at trial tended to show the following: Sometime after 6:00 a.m. on December 22, 2004, Willie Jennings and his girlfriend, Ladreka Davis, saw Efferman Moore (‘Efferman’) and Antonio Jackson, Jr., at Western Hills Mall. Jennings told Davis that Efferman did not like him because they had disagreed ‘about some weed or some stuff.’ Jackson had been charged with the capital murder of Jennings’s cousin, Tavares Cotrell. Jennings was wearing a sweatshirt that memorialized his cousin. Jackson approached and denied committing the murder, and Jennings responded, ‘Man, whatever.’
“When Jennings and Davis left the mall, they saw Jackson and his girlfriend, Jerita Smith, sitting in a gray car. As they drove down Third Avenue, Davis heard bullets strike their car. She saw that a peppermint-green car with tinted windows was following them and that two people were firing from inside. Jennings attempted to elude the shooters and crashed into a fence. He fled into a nearby yard and sent Davis to find his mother. As she fled, Davis saw that Efferman was the driver of the green car, that Jackson and a man in a red toboggan hat were passengers, and that Jackson was armed with a gun. The men told Efferman to shoot Davis and put her into the car. They then stated to Jennings: ‘Told you you was [sic] going to get this.’ Davis got a ride to the home of Jennings’s mother. A few minutes earlier, a peppermint-green car with tinted windows had pulled into the driveway and had driven away. The two women went to the scene and learned that Jennings was dead.
“Sandra Meyer testified that at approximately 8:00 on the morning of December 22, 2004, she saw a brown car knock Willie Jennings down in the street. The car drove through a yard and a driveway and struck a parked car. Jennings fled, and Jackson followed him, armed with a gun. Jackson fired three shots, and two of them struck Jennings, causing him to fall. While Jennings was on the ground, Jackson kicked him in the head. Jennings died from internal injuries caused by a gunshot wound. Mrs. Meyer said that a second man was with Jackson and that a third person drove the car away. Her husband, Louie Meyer, ran outside with a rifle when he heard the shots. He saw a brown car with a small spare tire on the right front side, coming up the street. Jackson and a companion walked out and pointed guns at Mr. Meyer; he fired three shots at them; and they fled. Mr. Meyer stated that Jackson’s companion was not Efferman. Shortly after the shooting, Detective Herman Harris showed two photo spreads to the Meyers. They were not able to identify pictures of Jackson and Efferman. A few weeks later, they called him to report that they had seen a photograph of Jackson in the newspaper and had recognized him as the man who killed Jennings. The defense introduced a copy of an article that appeared in the Birmingham News on January 10, 2005, which stated that Jackson and Efferman were wanted for the Jennings killing. Next to the article were photographs of both men.
“On December 30, 2004, police arrested Christopher Parson, Ronnie Ball and Darrell Moore (‘Darrell’), Efferman’s brother, on a robbery charge. They recovered a Bursa [brand] pistol with a missing magazine spring. That type of spring had been found near Willie Jennings’s body. Forensic tests revealed that a shell casing found at the Jennings shooting had been fired from the recovered gun. Parson testified that Darrell and Ball came to his house on the morning of December 22, 2004, and told him that they had killed Willie Jennings. They said that they and Efferman chased Jennings because he had stolen a pound of marijuana from Efferman and his mother; that Efferman ran over Jennings; that Ball shot Jennings; and that they struck Jennings in the head with the gun. Parson told police that Darrell and Ball had arrived in Effer-man’s brown Honda [automobile] and that there was damage to the front. Darrell and Ball were arrested for Jennings’s murder a few weeks before Jackson and Efferman went to trial.
“Charles Mosley (‘Charles’) testified that Jennings and Cotrell had sold pills for Jackson and that ‘the word around the street’ was that Cotrell had stolen the cell phone Jackson used to make drug sales. Charles said that a few days before Cotrell’s death, Jackson had threatened to kill Cotrell. The State introduced a certified copy of Jackson’s conviction for the capital murder of Cot-rell. Charles’s brother, Larles Mosley (‘Larles’), testified that he had taken some marijuana from Efferman and a woman at gunpoint; that Cotrell’s father told him the marijuana belonged to Jackson; and that Ladreka Davis told him that Efferman thought Willie Jennings had taken the marijuana.
“Jackson’s girlfriend, Jerita Smith, testified that Jackson was with her from the time they saw Jennings at the mall until about noon, when they heard that Jennings was dead .... ”

After Jennings was killed and before the case relating to Jennings’s death was tried, Jackson was convicted of the capital murder of Tavares Cotrell. Before jury selection in the case involving Jennings, Jackson moved the trial court to prohibit the State from introducing any evidence related to his capital-murder conviction. Jackson argued that

“such evidence ... is inadmissible by virtue of the general exclusionary rule of character.... [Jackson’s] character is not in evidence and the fact that he was convicted of that other case, or even charged with it, ... is highly prejudicial. The prejudice far outweighs any probative value ... that the State may derive from it.”

The State responded that “the murder [of Tavares Cotrell] is so intertwined in this murder it’s virtually impossible to try the case without bringing up that case”; that the evidence of Jackson’s capital-murder conviction was related to motive in this case; and that the evidence was not so prejudicial to Jackson that it should be excluded. In reply, Jackson argued that nothing in this case would “have anything to do with whether Willie Jennings was a witness in the other case or whether the fact that Willie Jennings [was] wearing that shirt [depicting Tavares Cotrell] had anything to do with him getting killed.” The trial court indicated that it would rule on the admissibility of the evidence of Jackson’s conviction for Cotrell’s murder later, and it instructed the parties not to mention the conviction or the conversation between Jennings and Jackson at the mall during voir dire examination of the jury venire.

After voir dire examination, but before the State had called its first witness, Jackson renewed his motion in limine. The State again argued that “there is absolutely no way ... that we can try this case and not talk about [Cotrell’s] murder, because it goes to motive all the way through the case. That’s how everything started.” Jackson continued to argue that there was no connection between Cotrell’s death and Jennings’s death and that evidence of his prior conviction for Cotrell’s death would be extremely prejudicial to him in the trial for Jennings’s death. The trial court then denied Jackson’s motion in limine, indicating that it would allow the evidence to be admitted. However, the trial court instructed Jackson to renew his objection when the evidence was offered.

Jackson renewed his objection to evidence of his capital-murder conviction just before the State called Charles Mosley to testify. The State had indicated that Mosley would “explain why Antonio Jackson killed Tavares Cotrell.” Jackson objected, arguing again that “the prejudicial value [of the evidence relating to Cotrell’s killing] far outweighfed] any probative value it may have.” Jackson further argued that he was

“being attacked primarily on ... [his] character, in an effort to say that ‘If he did this one time, now, he has probably done it again.’ ... [T]hey [the State] are saying that they are bringing this ... evidence in to prove motive but they have no evidence, whatsoever, of motive, as far as this case is concerned.”

The trial court again overruled the objection, stating that it had made its ruling and would allow the evidence to be introduced. The State then solicited testimony from Mosley regarding Jackson’s conviction for the capital murder of Tavares Cotrell, introducing into evidence a certified copy of Jackson’s capital-murder conviction.

Jackson was convicted of murdering Jennings. He appealed that conviction to the Court of Criminal Appeals, arguing, among other things, that the trial court had erred in allowing the State to introduce evidence of his prior conviction for capital murder. The Court of Criminal Appeals affirmed the trial court’s judgment, concluding as follows in its unpublished memorandum:

“Rule 404(b), Ala. R. Evid., provides, in pertinent part: ‘Evidence of other crimes ... is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, preparation, plan, knowledge, identity, or absence of mistake or accident .... ’ The murder conviction tended to show that Jackson had a motive to kill Willie Jennings because, shortly before the shooting, the two of them had a confrontation about the Cotrell case.
“The evidence of the Cotrell murder was necessary because Jackson’s girlfriend stated that the meeting with Jennings in the mall was not a ‘confrontation.’ She also stated that Jackson was with her when Jennings was killed. The evidence was not unfairly prejudicial because the State did not offer any details that could have inflamed the jury and the trial court specifically instructed [the jury] that [it] could consider [the evidence] only as evidence of motive. Therefore, the trial court did not abuse its discretion in admitting evidence of Jackson’s conviction for killing Cotrell.”

We granted Jackson’s petition for the writ of certiorari to determine whether the Court of Criminal Appeals’ conclusion conflicts with its holdings in Robinson and Averette.

Analysis

Jackson argues that the judgment of the Court of Criminal Appeals conflicts with Robinson and Averette, because, he again argues, the trial court erred in allowing the State to “introduce ... [his] prior conviction for capital murder as an improper attack on his character.” Jackson’s brief, at 16. Before we reach the merits of Jackson’s argument, however, we will address the State’s argument that Jackson did not preserve this issue for appellate review.

I.

We have stated:

“ ‘An appellant who suffers an adverse ruling on a motion to exclude evidence, made in limine, preserves this adverse ruling for post-judgment and appellate review only if he objects to the introduction of the proffered evidence and assigns specific grounds therefor at the time of the trial, unless he has obtained the express acquiescence of the trial court that subsequent objection to evidence when it is proffered at trial and assignment of grounds therefor are not necessary.’ ”

Baldwin County Elec. Membership Corp. v. City of Fairhope, 999 So.2d 448, 454 (Ala.2008) (quoting Owens-Corning Fiberglass Corp. v. James, 646 So.2d 669, 673 (Ala.1994)). “[U]nless the trial court’s ruling on a motion in limine is absolute or unconditional, the ruling does not preserve the issue for appeal.” Perry v. Brakefield, 534 So.2d 602, 606 (Ala.1988).

The State argues that Jackson failed to preserve this issue for review because he did not object when Davis “testified that Jackson had approached [Jennings] and discussed the capital murder case.” State’s brief, at 28. We disagree. Davis testified that Jackson approached Jennings at the mall and told Jennings that he did not kill Cotrell. Davis did not mention anything about Jackson’s being charged with, tried for, or convicted of Cotrell’s murder. Although Jackson initially argued to the trial court that both the conversation between Jackson and Jennings at the mall and Jackson’s conviction for capital murder should be excluded, his argument to this Court is that the trial court erred in allowing the State to present evidence of his conviction. Jackson’s brief, at 16. Davis provided no testimony regarding Jackson’s conviction for capital murder; therefore, Jackson’s failure to object to her testimony does not prevent him from presenting to this Court the issue whether the trial court erred in admitting evidence of his prior conviction.

The State also argues that Jackson has not preserved this issue for review because he failed to object “when the State actually offered ... the certified copy of his capital murder conviction.” State’s brief, at 28. “Thus,” according to the State, “because Jackson did not renew his objection at trial, this issue was not preserved for review.” Id. Again, we disagree.

The certified copy of the capital-murder conviction was introduced at the close of Charles Mosley’s testimony. Immediately before Mosley’s testimony, Jackson stated for the third time his objection to the introduction of evidence related to his capital-murder conviction. Jackson’s counsel argued that

“the prejudicial value [of evidence of the conviction] far outweighs any probative value it may have, and I believe he is being attacked primarily on ... [his] character, in an effort to say that ‘If he did this one time, now, he has probably done it again.’ And I think the law is contrary to that and says that the State cannot do it.”

The trial court stated that it would allow the evidence to be introduced. Jackson continued to object, arguing that Mosley’s testimony “has nothing to do with the facts of this case. It has nothing to do with a motive, as far as this case is concerned.” The trial court responded: “I’m going to allow it in. I made my ruling.” Contrary to the State’s argument, it is clear that Jackson timely renewed his objections at trial, assigning specific grounds for his objections to the introduction of evidence concerning his capital-murder conviction. Nothing more was required to preserve his arguments for appellate review.

II.

We now address Jackson’s argument that the Court of Criminal Appeals’ judgment conflicts with that court’s holdings in Robinson and Averette. In those cases, the Court of Criminal Appeals addressed the admissibility of evidence of a defendant’s prior criminal acts. In Robinson, the Court of Criminal Appeals stated:

“ ‘ “On the trial of a person for the alleged commission of a particular crime, evidence of his doing another act, which itself is a crime, is not admissible if the only probative function of such evidence is to show his bad character, inclination or propensity to commit the type of crime for which he is being tried. This is a general exclusionary rule which prevents the introduction of prior criminal acts for the sole purpose of suggesting that the accused is more likely to be guilty of the crime in question.” ’ Pope v. State, 365 So.2d 369, 371 (Ala.Crim.App.1978), quoting C. Gamble, McElroy’s Alabama Evidence § 69.01. (3d ed. 1977) “This exclusionary rule is simply an application of the character rule which forbids the State to prove the accused’s bad character by particular deeds. The basis for the rule lies in the belief that the prejudicial effect of prior crimes will far outweigh any probative value that might be gained from them. Most agree that such evidence of prior crimes has almost an irreversible impact upon the minds of the jurors.” ’ Ex parte Arthur, 472 So.2d 665, 668 (Ala. 1985), quoting McElroy’s supra, § 69.01(1)....
“... The well-established exceptions to the exclusionary rule include: (1) relevancy to prove identity; (2) relevancy to prove res gestae; (3) relevancy to prove scienter; (4) relevancy to prove intent; (5) relevancy to show motive; (6) relevancy to prove system; (7) relevancy to prove malice; (8) relevancy to rebut special defenses; and (9) relevancy in various particular crimes. Willis v. State, 449 So.2d 1258, 1260 (Ala.Crim.App.1984); Scott v. State, 353 So.2d 36 (Ala.Crim.App.1977). However, the fact that evidence of a prior bad act may fit into one of these exceptions will not alone justify its admission. “‘Judicial inquiry does not end with a determination that the evidence of another crime is relevant and probative of a necessary element of the charged offense. It does not suffice simply to see if the evidence is capable of being fitted within an exception to the rule. Rather, a balancing test must be applied. The evidence of another similar crime must not only be relevant, it must also be reasonably necessary to the government’s case, and it must be plain, clear, and conclusive, before its probative value will be held to outweigh its potential prejudicial effects.” ’ Averette v. State, 469 So.2d 1371, 1374 (Ala.Crim.App.1985), quoting United States v. Turquitt, [557 F.2d 464] at 468-69 [ (5th Cir.1977) ].”

528 So.2d at 347. Jackson argues here, as he did at trial, that evidence of his capital-murder conviction is not related to motive or to any other exception to the general exclusionary rule and that the prejudicial effect of admitting that evidence far outweighs any probative value it might serve. We agree, and we hold that the trial court erred in denying Jackson’s motion to prohibit evidence of his prior conviction.

As Jackson pointed out at trial, the only link between Cotrell’s death and Jennings’s death is that, on the morning he was killed, Jennings was walking at a mall, wearing a T-shirt with Cotrell’s picture on it, when Jackson, who had been charged with Cotrell’s murder, approached him and told him that he did not kill Cotrell. Although this conversation could be relevant to show that Jackson had a motive to kill Jennings, evidence of Jackson’s capital-murder conviction for killing Cotrell — • which conviction occurred after Jennings was killed — is irrelevant to the issue of motive in this case. Contrary to the State’s argument, evidence of Jackson’s conviction for Cotrell’s murder is not necessary to give context to the conversation between Jennings and Jackson at the mall.

Finally, even if we were to conclude that evidence of Jackson’s capital-murder conviction somehow fell within one of the exceptions in Rule 404(b), Ala. R. Evid., to the general exclusionary rule, the State has not demonstrated that the evidence was reasonably necessary to its case. In fact, the State argued and presented evidence indicating that Jennings’s death was related to his involvement with Jackson’s illegal drug business. In order to prove a drug-related motive for the murder, it was not reasonably necessary to prove that Jackson, after Jennings’s murder, was convicted of capital murder for the killing of Cotrell. Therefore, the prejudicial impact of that conviction outweighs any probative value provided by the evidence. See Robinson, 528 So.2d at 347 (“ ‘ “It does not suffice simply to see if the evidence is capable of being fitted within an exception to the rule. Rather, a balancing test must be applied. The evidence of another similar crime must not only be relevant, it must also be reasonably necessary to the government’s case, and it must be plain, clear, and conclusive, before its probative value will be held to outweigh its potential prejudicial effects.” ’ ” (quoting Averette v. State, 469 So.2d at 1374, quoting in turn United States v. Turquitt, 557 F.2d 464, 468-69 (5th Cir.1977))).

We hold that the trial court exceeded its discretion in allowing the State to introduce evidence of Jackson’s capital-murder conviction and that the Court of Criminal Appeals’ judgment affirming the trial court’s judgment conflicts with the principles set forth in Robinson and Averette. We, therefore, reverse the Court of Criminal Appeals’ judgment and remand the case to that court for it to remand the case for a new trial.

REVERSED AND REMANDED.

COBB, C.J., and LYONS, STUART, SMITH, PARKER, and MURDOCK, JJ., concur.

BOLIN, J., dissents.

SHAW, J., recuses himself.

      . The State also argues that evidence of the conviction was admissible as part of the res gestae. In Johnson v. State, 272 Ala. 633, 638, 133 So.2d 53, 58 (1961), this Court stated: "In homicide cases all the surroundings and circumstances attending the killing, the declarations of the accused at and after the killing, and his conduct at or near the scene are admissible and form part of the res ges-tae.” Although Jackson's statement to Jennings that he did not kill Cotrell may form part of "the surroundings and circumstances attending the killing,” we cannot agree that Jackson’s conviction for Cotrell’s murder, which occurred after Jennings was killed, falls within that definition.


source: Caselaw Access Project

author: MAIN, Judge.

license: Public Domain

text:
    Antonio JACKSON, Jr. v. STATE of Alabama.
    CR-0 6-1019.
    Court of Criminal Appeals of Alabama.
    Oct. 9, 2009.
    Erskine R. Mathis, Birmingham, for appellant.
    Troy King, atty. gen., and Michael G. Dean, asst. atty. gen., for appellee.
   On Remand from, the Alabama Supreme Court

MAIN, Judge.

In an unpublished memorandum issued on September 26, 2008, this Court affirmed the trial court’s judgment in this case. See Jackson v. State, 33 So.3d 1277 (Ala.Crim. App.2008) (Welch, J., dissenting). Antonio Jackson, Jr., petitioned the Alabama Supreme Court for certiorari review. On August 28, 2009, the Alabama Supreme Court reversed this Court’s judgment and remanded this case for this Court to remand it to the trial court for a new trial. See Ex parte Jackson, 33 So.3d 1279 (Ala.2009). Thus, in accordance with the directions of the Alabama Supreme Court, the circuit court’s judgment is reversed, and this case is remanded for a new trial.

REVERSED AND REMANDED.

WISE, P.J., and WELCH, WINDOM, and KELLUM, JJ., concur.

      . Although Judge Main was not on the Court when the unpublished memorandum affirming Antonio Jackson's conviction was issued, the case was assigned to Judge Main when the Alabama Supreme Court remanded it to this Court.


author: WINDOM, Judge.

text:
    Shana Lee BARRETT v. STATE of Alabama.
    CR-06-0090.
    Court of Criminal Appeals of Alabama.
    Oct. 2, 2009.

      Erskine R. Mathis, Birmingham, for appellant.
    Troy King, atty. gen., and Andy Scott Poole, asst. atty. gen., for appellee.
   WINDOM, Judge.

Shana Lee Barrett appeals her conviction for reckless manslaughter, a violation of § 13A-6-3(a)(l), Ala.Code 1975, and her resulting sentence of 20 years in prison. The evidence presented at trial tended to establish the following.

On the evening of April 16, 2005, Barrett and her niece drove from Barrett’s house in Walker County, Alabama, to a party in Bessemer, Alabama. Barrett was driving her Geo Storm automobile. On the way to the party, Barrett purchased a half of a case of Corona beer and a half of a case of Heineken beer. During the party, Barrett drank some beer, and visited with friends. At some point in the early morning hours of April 17, 2005, Barrett and her niece left the party to go home. Barrett was driving the ear.

On the way home, Barrett drove down U.S. Highway 78 in Jefferson County. At some point while on Highway 78, Barrett got behind Howard Chappell. Chappell was driving a Mercury Villager Van. Barrett attempted to pass Chappell; however, her vehicle struck the back of Chappell’s vehicle. The collision caused both vehicles to leave the road and strike separate trees. Chappell died as a result of the collision.

Following the accident, Barrett was arrested for driving under the influence, a violation of § 32-5A-191, Ala.Code 1975. After her arrest, Barrett submitted to a blood-alcohol test. The results indicated Barrett had a blood-alcohol level of 0.096%. Barrett was subsequently charged with reckless manslaughter, a violation of § 13A-6-3 (a)(1), Ala.Code 1975.

At trial, Barrett requested that the jury be charged on criminally negligent homicide, § 13A-6-4, Ala.Code 1975, and vehicular homicide, § 32-5A-192, Ala.Code 1975, as lesser-included offenses of reckless manslaughter. The circuit court charged the jury on criminally negligent homicide; however, it refused Barrett’s request for a jury instruction on vehicular homicide. After deliberating, the jury found Barrett guilty of manslaughter as charged in the indictment.

On appeal, Barrett argues that the circuit court’s jury instructions were defective. Specifically, Barrett argues that the circuit court abused its discretion by refusing to instruct the jury on vehicular homicide as a lesser included offense of reckless manslaughter. We agree.

“It has long been the law in Alabama that a [circuit] court has broad discretion in formulating jury instructions, provided those instructions are accurate reflections of the law and facts of the case.” Culpepper v. State, 827 So.2d 883, 885 (Ala.Crim.App.2001) (citing Knotts v. State, 686 So.2d 431, 456 (Ala.Crim.App.1995)). The circuit court’s broad discretion, however, is fettered by a defendant’s “right to have the court charge on the lesser offenses included in the indictment, when there is a reasonable theory from the evidence supporting his position.” Jones v. State, 514 So.2d 1060, 1063 (Ala.Crim.App.1987) (citing Wiggins v. State, 491 So.2d 1046 (Ala.Crim.App.1986); Chavers v. State, 361 So.2d 1106 (Ala.1978); and Fulghum v. State, 291 Ala. 71, 277 So.2d 886 (1973)). “Even if the defendant denies the charge in toto, but the evidence presented by the State suggests a reasonable theory supporting a charge on a lesser offense, the trial court is obliged to give a charge on the lesser offense when requested.” Jones, 514 So.2d at 1063 (citations omitted). Lesser-included offenses encompass, among other things, offenses that are “established by proof of the same or fewer than all the facts required to establish the commission of the offense charged” or offenses that “differ[ ] from the offense charged only in the respect that a less serious injury or risk of injury to the same person, property or public interests, to a lesser kind of culpability suffices to establish its commission.” § 13A-l-9(a)(l), (a)(4), Ala.Code 1975.

Barrett was charged with and convicted of reckless manslaughter, which requires the State must prove that she “recklessly cause[d] the death of another person.” § 13A-6-3(a)(l), Ala.Code 1975. She requested and was refused a jury instruction on vehicular homicide which requires proof that she “unlawfully and unintentionally eause[s] the death of another person” while violating “any state law or municipal ordinance applying to the operation or use of a vehicle” and the violation proximately caused the death of other person. § 32-5A-192(a), Ala.Code 1975.

Reviewing these two statutes, this court, in Culpepper v. State, determined a person charged with reckless manslaughter stemming from an alcohol related accident that resulted in the death of another person is entitled to a jury instruction on vehicular homicide as a lesser-included offense. 827 So.2d 883, 885 (Ala.Crim.App.2001). Brian Culpepper drank alcohol and chose to drive his vehicle. Id. at 884-85. While driving, he hit a tractor-trailer truck and lost control of his vehicle. Id. His vehicle then crossed a median and struck another vehicle which, in turn, struck a motorcycle. Id. The driver of the vehicle that Culpep-per struck and the driver of the motorcycle died as a result of the accident. Id. After the accident, Culpepper consented to a blood-alcohol test, which indicated that his blood-alcohol level was 0.15%. Id.

Based on the DUI related deaths of two individuals, Culpepper was charged with two counts of reckless manslaughter. At trial, Culpepper requested jury instructions on criminally negligent homicide and vehicular homicide. Id. The circuit court refused to instruct the jury on vehicular homicide.

After reviewing the charges against Culpepper and the facts presented at trial, this court determined that vehicular homicide was a lesser-included offense of reckless manslaughter. Id. at 886. Specifically, this court, applying the Alabama Supreme Court’s holding in Ex parte Long, 600 So.2d 982 (Ala.1992), overruled on other grounds, Ex parte Edwards, 816 So.2d 98 (Ala.2001), and Ex parte Jordan, 486 So.2d 485 (Ala.1986), determined that in circumstances where a defendant is charge with reckless manslaughter for causing an accident and death by violating the State’s DUI law, vehicular homicide contains the same or fewer elements as reckless manslaughter. Id. at 886. Therefore, under those circumstances, a defendant is entitled to a jury instruction on vehicular homicide as a lesser-included offense of reckless manslaughter. Id.; see also Crawford v. State, 886 So.2d 846, 848-49 (Ala.Crim.App.2003) (holding that vehicular homicide was a lesser-included offense of murder and manslaughter when the facts established that the defendant, while intoxicated, drove his vehicle and caused an accident that resulted in the death of another individual); Ex parte Long, 600 So.2d at 985-87 (holding that vehicular homicide was a lesser-included offense of murder when the facts established that the defendant ran his vehicle over a curb and killed an individual).

Applying this court’s decision in Culpep-per to the facts of this case, Barrett was entitled to a jury instruction on vehicular homicide as a lesser-included offense of reckless manslaughter. Barrett was charged with reckless manslaughter as follows:

“SHANA LEE BARRETT, whose name is to the grand jury otherwise unknown, did recklessly cause the death of HOWARD CHAPPELL JR by driving under the influence striking his vehicle causing his death, in violation of Section 13A-6 — 3(a)(1) of the Alabama Criminal code, against the peace and dignity of the State of Alabama.”

(C.R. 16.) To convict Barrett of reckless manslaughter as charged in the indictment, the State had to establish that Barrett caused the death of Chappell and that she did so recklessly, i.e., by driving her vehicle while under the influence of alcohol in violation of § 32-5A-191, Ala.Code 1975. Further, the evidence adduced at trial established that Barrett drove her vehicle with a .096% blood-alcohol level in violation of § 32-5A-191, and in doing so caused an accident and the death of Chappell.

Accordingly, under the charge and the facts of this case, vehicular homicide (a death caused by Barrett driving under the influence of alcohol), required proof of the same or fewer facts as the facts necessary to establish reckless manslaughter (Barrett recklessly caused a death by driving under the influence). See Culpepper, 827 So.2d at 886 (holding that “ ‘the same or fewer than all of the facts’ required to establish manslaughter were required to establish ... vehicular homicide, so that [that offense] thereby fall[s] within the definition of an included offense in § 13A-1 — 9(a)(1)”). Therefore, under the facts of Barrett’s case, vehicular homicide is a lesser-included offense of reckless manslaughter, and the circuit court erred in failing to so instruct the jury. Id.

Further, the circuit court’s refusal to instruct the jury on vehicular homicide was not harmless because “[n]othing in the jury’s verdict supports the contention that it could not have returned a verdict on [the offense of vehicular homicide] instead of manslaughter if it had been given the opportunity, or that any finding implicit in the jury’s verdict necessarily precludes a verdict on [vehicular homicide].” Ex parte Long, 600 So.2d at 987, overruled on other grounds, Ex parte Edwards, 816 So.2d at 107; see also Crawford v. State, 886 So.2d 846, 849 (Ala.Crim.App.2003) (holding that the jury’s verdict convicting the defendant of manslaughter did not preclude a verdict on vehicular homicide; therefore, the circuit court’s erroneous refusal to instruct the jury on vehicular homicide was not harmless). Given the opportunity, under the facts and circumstances of this case, the jury could have returned a verdict for homicide by vehicle. Therefore, the circuit court’s judgment is due to be reversed.

Based on the foregoing, the circuit court’s judgment is reversed, and this cause is remanded for a new trial.

REVERSED AND REMANDED.

WISE, P.J., and WELCH, KELLUM, and MAIN, JJ., concur.

      . In Ex parte Edwards, the Alabama Supreme Court explained that a person acts unintentionally for vehicular homicide purposes if that person acts knowingly, recklessly, or negligently. A.L.L. v. State, [Ms. 1080395, Aug. 21, 2009]-So.3d - , - (Ala.2009) (citing Ex parte Edwards, 816 So.2d 98, 107 (Ala.2001)).


author: PER CURIAM.

text:
    Geneva SUTTON, Appellant, v. MONROE COUNTY, etc., Appellee.
    No. 3D08-3185.
    District Court of Appeal of Florida, Third District.
    Dec. 23, 2009.
    Rehearing and Rehearing En Banc Denied May 25, 2010.
    James S. Mattson, Key Largo; Andrew M. Tobin, Tavernier, for appellant.
    Derek V. Howard, Assistant County Attorney, for appellee.
    Before RAMIREZ, C.J., and ROTHENBERG, J., and SCHWARTZ, Senior Judge.
   PER CURIAM.

Geneva Sutton appeals a final judgment entered in favor of Monroe County, Florida, dismissing her regulatory taking complaint for failure to state a cause action. We affirm the trial court’s order granting final judgment in favor of Monroe County because Sutton’s claim is barred by the four-year statute of limitations. See § 95.11(3)(p), Fla. Stat. (2007).

Sutton, the landowner, purchased a portion of the subject property in 1971 and the remaining portion in 1984. The property consisted of a salt marsh, buttonwood area, a hammock and mangroves, totaling over 22,624 square feet.

Effective September 15, 1986, Monroe County adopted a new land use plan, after which the subject property was subject to environmental and wetland regulations that rendered the subject property “un-buildable.” In 1996, Sutton applied for a building permit to construct a single family residence on the property. This application was denied in 1997. Sutton then appealed the denial to the Monroe County Planning Commission. The Commission concluded that the lots were not buildable.

On January 7, 2005, Sutton filed an application for a Beneficial use Determination (“BUD”). On July 19, 2006, the Special Master who presided over the BUD hearing concluded, among other things, that the regulations Sutton complained of denied her “all reasonable economic use of the [subject] Lot” and that “[i]t was only when the Lots became unbuildable that a potential claim ripened.” The Special Master further concluded, “I recommend to the Board of County Commissioners [“BOCC”] that a final beneficial use determination be entered awarding just compensation to the Applicant to be determined as of 1986 when the Lots became unbuildable by operation of the Plan and Code.”

On November 15, 2006, the BOCC adopted a resolution and approved the Special Master’s proposed BUD and requested that the Monroe County Land Authority make a purchase offer based on the fair market value of the subject property as of September 14, 1986 for $113,423.00, inclusive of interest.

Sutton then filed her civil complaint for inverse condemnation. Monroe County moved to dismiss, alleging that Suttons’ claim was time-barred by the applicable statute of limitations. The trial court agreed and dismissed Suttons’ action. We now affirm the trial court’s dismissal because we, too, agree with Monroe County that Suttons’ action was barred by the four (4) year statute of limitations found in section 95.11(3)(p), Florida Statutes (2007).

Section 95.11, titled, “Limitations other than for the recovery of real property” provides in pertinent part:

Actions other than for recovery of real property shall be commenced as follows:
(3) Within four years.—
(p) Any action not specifically provided for in these statutes.

In 1996, Sutton made an application to obtain relief and to obtain a building permit. It was denied in 1997. Sutton then appealed the denial to the Monroe County Planning Commission, which concluded that the lots were not buildable. She then waited until 2005 to file her BUD application. She now claims that the four-year statute of limitations should run from this point. Regrettably, we simply cannot agree with this line of reasoning. As Monroe County correctly points out, Sutton’s claim would have become ripe in 1997 after her administrative appeal of Monroe County’s denial of her application for a building permit, not in 2006 when the BUD was rendered. Thus, the statute of limitation began to run in 1997, and Sutton had four years within which to file her complaint. It is clear that the 1997 administrative appeal met the decisional finality requirement as stated in Williamson County Regional Planning Commission v. Hamilton Bank of Johnson City, 473 U.S. 172, 186, 105 S.Ct. 3108, 87 L.Ed.2d 126 (1985). Consequently, this ripened Sutton’s as-applied regulatory taking claim for judicial review.

Accordingly, we affirm the trial court’s order granting final judgment in favor of Monroe County.

Affirmed.

      . Following this denial of Sutton’s administrative appeal of the development permit application denial, Sutton conceded that she did not attempt to obtain building permits or relief until 2005, when she filed an application for a proposed BUD.

      . We note that none of the factors present in Collins v. Monroe County, 999 So.2d 709 (Fla. 3d DCA 2008) are present in the case before us.

      . We note that Sutton is not without remedy here. In 1996, Sutton applied for a building permit to construct a single family residence solely on Lot 8 of the subject property. In 2005, she proposed in her application for a BUD the construction of one single family residence on the combined lots which make up the subject property (Lot 8 and Lot 9). It seems her applications for building were different. Sutton has never applied for a building permit for a single family residence on the combined lots.


author: LAGOA, Judge. SCHWARTZ, Senior Judge GERSTEN, J.

text:
    BISCAYNE PARK, LLC, Appellant, v. WAL-MART STORES EASt, LP, Appellee.
    No. 3D08-3219.
    District Court of Appeal of Florida, Third District.
    Feb. 17, 2010.
    Rehearing and Rehearing En Banc Denied May 18, 2010.

      Peckar & Abramson and Ralf R. Rodriguez, Ft. Lauderdale, for appellant.
    Akerman Senterfitt and Dana A. Clayton and Nancy A. Copperthwaite and Samantha J. Kavanaugh, Clayton, for appel-lee.
    Before GERSTEN and LAGOA, JJ., and SCHWARTZ, Senior Judge.
   LAGOA, Judge.

Biscayne Park, LLC, (“Biscayne”) appeals from an order granting Wal-Mart Stores East, LP’s, (“Wal-Mart”) verified motion for temporary injunction. Because we find that the prerequisites for the issuance of a temporary injunction were not established below, we reverse the December 15, 2008 order.

I. FACTUAL AND PROCEDURAL HISTORY

Biscayne is the owner of a sixteen acre tract of land located in the Village of El Portal (the “property”). Biscayne purchased the property at a public auction without knowledge that the property had previously sustained widespread environmental impact.

In March 2007, Wal-Mart began negotiations with Biscayne to purchase the property. The parties entered into a purchase agreement that permitted Wal-Mart to conduct due diligence inspections on the property and to terminate the agreement prior to closing if, as a result of the inspections, Wal-Mart did not wish to purchase the property. As part of the inspections, Wal-Mart installed ground water monitoring wells on the property.

In October, 2007, Wal-Mart terminated the purchase agreement. The wells, however, remained on the property. Biscayne subsequently began negotiations with another potential buyer, Interra Development Corporation (“Interra”). As a result of the negotiations, Biscayne agreed to permit Interra to use the wells on the property to conduct its own due diligence. Wal-Mart, however, became concerned about its potential liability resulting from this use of the wells that it had previously installed. As a result, Wal-Mart commenced negotiations with Biscayne regarding an indemnification and release agreement, and proposed that Biscayne pay for Wal-Mart’s costs related to the installation of the wells. Biseayne rejected Wal-Mart’s proposal, and informed Wal-Mart that it considered the wells permanent fixtures attached to the property that belonged to Biseayne.

In November 2008, Wal-Mart filed a complaint against Biseayne for declaratory and injunctive relief, and a verified motion for temporary injunction. Wal-Mart’s verified motion requested an order allowing entry onto the property for the purpose of filling and capping the wells. At the time, Biseayne was using the wells in its effort to remediate the property as required by a local environmental regulatory agency.

On December 15, 2008, the trial court entered an order granting Wal-Mart’s motion for a temporary injunction. The trial court gave Biseayne two options: 1) allow Wal-Mart to “abandon and seal” the wells; or 2) purchase a six-month insurance policy insuring Wal-Mart with respect to the wells in the amount of $20,000,000. Biscayne filed a motion for reconsideration, which the trial court denied, and this appeal ensued. Wal-Mart subsequently posted a $230,000 bond and, during the week of January 12, 2009, entered the property and sealed the wells.

II. ANALYSIS

On appeal, Biseayne asserts that the trial court erred in issuing the temporary injunction. We agree. “The standard for determining whether an injunction was wrongfully issued is simply whether the petitioning party was unenti-tled to injunctive relief.” Parker Tampa Two, Inc. v. Somerset Dev. Corp., 544 So.2d 1018, 1021-22 (Fla.1989). The well-established requirements for the issuance of a temporary injunction are: (1) the likelihood of irreparable harm and the unavailability of an adequate remedy at law; (2) a substantial likelihood of success on the merits; (3) that the threatened injury to the petitioner outweighs any possible harm to the respondent; and, (4) the entry of the injunction will not disserve the public interest. See Angelino v. Santa Barbara Enters., LLC, 2 So.3d 1100 (Fla. 3d DCA 2009); Miami-Dade County v. Fernandez, 905 So.2d 213 (Fla. 3d DCA 2005). Moreover, a temporary injunction “should be granted only sparingly and only after the moving party has alleged and proved facts entitling it to relief.” Morgan v. Herff Jones, Inc., 883 So.2d 309, 313 (Fla. 2d DCA 2004).

With respect to the first requirement, Wal-Mart has not demonstrated irreparable injury, and the unavailability of an adequate remedy at law. A review of the proceedings below demonstrates that Wal-Mart’s alleged injury was its possible monetary liability resulting from possible future contamination to groundwater through the wells. “[T]his court has previously held that the granting of injunctive relief is improper when a plaintiffs right to recover is based upon a future event,” Oxford Int’l Bank & Trust, Ltd. v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 374 So.2d 54, 56 (Fla. 3d DCA 1979); in this case, the future event is the possible future contamination of the groundwater through the wells. Because the alleged injury is speculative, we conclude that it is insufficient to meet the irreparable injury standard. See Jacksonville Elec. Auth. v. Beemik Builders & Constructors, Inc., 487 So.2d 372, 373 (Fla. 1st DCA 1986) (“Irreparable injury will never be found where the injury complained of is ‘doubtful, eventual, or contingent.’ ” (quoting First Nat’l Bank in St. Petersburg v. Ferris, 156 So.2d 421, 424 (Fla. 2d DCA 1963))). Additionally, in the event that such an alleged event were to occur, Wal-Mart would have an adequate remedy at law, i.e., a claim for money damages. See Bacardi U.S.A., Inc. v. Gallo Wine Distribs., LLC, 829 So.2d 963, 964 (Fla. 3d DCA 2002). Because we conclude that Wal-Mart failed to satisfy the first requirement for the issuance of an injunction, it is unnecessary for us to comment on the remaining requirements.

Accordingly, for the reasons stated, we conclude that the trial court erred in issuing the injunction, and reverse the December 15, 2008 order entered below. Moreover, because the wells on Biscayne’s property were destroyed following the entry of an improper injunction, on remand Biscayne can proceed against Wal-Mart’s posted bond on its claim for damages. See Jefferies & Co. v. Int’l Assets Holding Corp., 830 So.2d 256 (Fla. 5th DCA 2002); Shea v. Cent. Diagnostic Servs., Inc., 552 So.2d 344 (Fla. 5th DCA 1989).

Reversed and remanded.

SCHWARTZ, Senior Judge

(specially concurring).

A preliminary injunction must be based on four indispensable elements. See Wilson v. Sandstrom, 317 So.2d 732, 736 (Fla.1975). In my opinion, the one in this case is supported by none of them. Apart from that, it’s fine.

GERSTEN, J.

(dissenting).

I respectfully dissent for two reasons. First, Wal-Mart Stores East, LP (“Wal-Mart”) satisfied the requirements for the temporary injunction. Second, the temporary injunction is now moot. Therefore, I would affirm.

This controversy arose out of a failed contract to purchase land. Wal-Mart contracted to purchase land used as a trailer park from Biscayne Park, LLC (“Biscayne”). The contract permitted Wal-Mart to conduct a due diligence inspection on the land and to terminate the contract prior to closing if, after due diligence, Wal-Mart did not want to purchase the land.

Before closing on this contract, Wal-Mart engaged in its due diligence. Part of this due diligence was to drill monitoring wells to test the groundwater for possible contamination. Wal-Mart installed and paid for these monitoring wells. After eight months of sampling the groundwater, Wal-Mart determined that the groundwater and soil had widespread contamination. Therefore, pursuant to the contract’s terms, Wal-Mart backed out of the contract.

After backing out of the contract, Wal-Mart notified Biscayne that it planned to abandon and discontinue the use of the monitoring wells, which if left unsealed are a safety or environmental hazard. Sealing the monitoring wells was the final part of due diligence and was required under Florida and local laws. See § 62-770.200(31), (41), Fla. Adm.Code (2006). Therefore, Wal-Mart requested access to the land to seal the abandoned monitoring wells, but Biscayne refused and instead continued to use Wal-Mart’s monitoring wells for groundwater sampling.

Thereafter, Wal-Mart sought this temporary injunction to seal the abandoned monitoring wells. The trial court granted the temporary injunction to seal the abandoned monitoring wells and return the land to status quo before the contract. This appeal followed.

The trial court did not abuse its discretion in granting the temporary injunction because the requirements for issuing one were satisfied. Trial courts have wide discretion in granting or denying a temporary injunction, and appellate courts will not interfere with the exercise of such discretion unless the party challenging the grant or denial clearly shows an abuse of discretion. See Briceño v. Bryden Invest., Ltd., 973 So.2d 614, 616 (Fla. 3d DCA 2008).

Applying the abuse of discretion standard, there are four well-established requirements for issuing a temporary injunction: (1) the likelihood of irreparable harm and the unavailability of an adequate remedy at law; (2) a substantial likelihood of success on the merits; (3) that the threatened injury to the petitioner outweighs any possible harm to the respondent; and (4) the entry of the injunction will not disserve the public interest. See LaRose v. A.K., 32 So.3d 77 (Fla. 2d DCA 2009).

On the first requirement, Wal-Mart demonstrated irreparable injury because third parties’ use of the open wells would exacerbate groundwater contamination of the land, making Wal-Mart liable for past and future contamination. Wal-Mart also demonstrated the unavailability of an adequate remedy at law because money does not compensate for contamination and spoliation of our natural resources. I note that this contamination adversely affects everyone in our community and our future generation’s children and children’s children.

Next, Wal-Mart established its likelihood of success on the merits because the open, unsealed monitoring wells are permanent fixtures that are outside Wal-Mart’s control unless they are closed and sealed. See Sears Roebuck & Co. v. Bay Bank & Trust Co., 537 So.2d 1041 (Fla. 1st DCA 1989). Further, and amazingly, the threatened land contamination injury outweighs any possible harm to Biscayne in allowing Wal-Mart back onto the land to seal the monitoring wells.

Finally, and perhaps paramount, the temporary injunction serves the public interest. The injunction serves the public interest because it prevents further contamination through the monitoring wells.

Therefore, the trial court properly and responsibly granted the temporary injunction on legal, apparent environmental concerns. The trial court was well within its discretion in protecting Wal-Mart from liability for the environmental damage. Moreover, the trial court acted responsibly to protect against further damage to our over-indulged, over-taxed, and under-protected environment. In fact, I feel that a reversal in these circumstances is a slap in the face to a hardworking trial judge who was only doing his job ... well.

Further, the need for the temporary injunction is no longer present. In January 2009, pursuant to the temporary injunction, Wal-Mart entered the property and sealed the monitoring wells. Thus, the need for the temporary injunction is moot because the parties are returned to the status quo ante-contract.

Accordingly, because Wal-Mart satisfied the requirements for the temporary injunction and the issue is now moot, I respectfully dissent. On an end note, I regret the expenditure of paper resources used in the writing of both the majority and dissent, but reiterate that I would affirm the order granting Wal-Mart’s verified motion for temporary injunction.

      . We do not address the remaining points raised on appeal.

      . This Court notes that the issuance of the "temporary” injunction was in fact in effect a "permanent” injunction as the wells were permanently sealed.


author: WELLS, Judge. CORTIÑAS, J.

text:
    Sally SCHMACHTENBERG n/k/a Sally McHugh, Appellant, v. Lee C. SCHMACHTENBERG, Appellee.
    No. 3D08-2508.
    District Court of Appeal of Florida, Third District.
    Feb. 24, 2010.
    Rehearing and Rehearing En Banc Denied May 28, 2010.

      Nancy A. Hass, Hallandale, for appellant.
    Ross & Girten and Laurie Waldman Ross; Buckner, Shifrin, Rice & Etter and Deanna S. Shifrin, Miami, for appellee.
    Before WELLS, CORTINAS and SALTER, JJ.
   WELLS, Judge.

Sally McHugh appeals from an order modifying the child support and permanent periodic alimony awards of a final judgment of dissolution of marriage. We reverse the modification of child support, finding that the marital settlement agreement incorporated into that judgment is clear and unambiguous and in need of no clarification, and that there is no basis in this record to support modification of that award. We reverse the modification of permanent periodic alimony, finding that the lower court erred in determining the amount by which that award was to be modified.

The parties were divorced in December of 2002 following an almost 30-year marriage which produced a single child, a disabled son, 25 years old when the marriage was dissolved. The divorce decree incorporated a mediated marital settlement agreement, which equitably divided the parties’ assets and liabilities and provided support for both Ms. McHugh and the parties’ adult disabled son. As to Ms. McHugh, the final judgment required Mr. Schmachtenberg to pay permanent periodic alimony in the amount of $5,250 per month:

V. ALIMONY
A. The husband will pay to the wife as permanent periodic alimony the sum of $5,250 (five thousand two hundred and fifty dollars) per month commencing December 1, 2002 and payable on the first day of each month thereafter. Said payments shall terminate upon the earlier of the remarriage of the wife or death of the wife or court order.
B. The alimony contained in this agreement is based on the husband’s projected and estimated income of $250,000 (two hundred thousand five hundred) per year and the wife’s projected and estimated income of $18,000 (eighteen thousand) per year. Neither party shall seek a modification of the alimony agreed to herein, based on the income earned in the year 2002.

As to the parties’ son, the parties were required to transfer title to a condominium that they owned to a special needs trust so that their son had a place to live. Mr. Schmachtenberg also was required to continue to support his son as he had in the past:

XVII. PARTIES ADULT DISABLED CHILD
The husband agrees to support the parties’ adult disabled child as he has done in the past. The husband’s support shall be a supplement, but not supplant the ehild[’]s government benefits and shall be subject to modification in accordance with the child’s needs. The parties agree to act in a manner to safeguard the child’s receipt of government benefits. All additional provisions related to the parties’ adult disabled child who is still dependent shall be governed by the decision of the probate court or by further agreement.
XVIII[.] PROPERTY LOCATED AT [] MARIPOSA
The property located at [ ] Mariposa [ ] Coral Gables, Florida shall be transferred by the husband and wife to a Special Needs Trust, the form of which shall be determined by the parties’ respective Probate attorneys and/or the Probate court.

Following the divorce, Ms. McHugh and the Miami-Dade County Guardianship Program were appointed joint guardians of the parties’ son and his property.

In October 2006, a little less than four years after the divorce, Mr. Schmachten-berg petitioned for clarification and/or modification of the mediated settlement agreement relating to the support of the parties’ son. Arguing that increases in his son’s expenses were causing friction between the parties, Mr. Schmachtenberg claimed that his continuing obligation to support his son as he had in the past had become vague and ambiguous, justifying either clarification or modification. Mr. Schmachtenberg simultaneously petitioned for modification of the permanent periodic alimony award, claiming only that his current income was “substantially less than the income estimated at the time of the Final Judgment.”

Following a two day trial, the court below entered an order modifying Mr. Schmachtenberg’s child support obligation relieving him of his agreed-to obligation to pay for all of his disabled son’s expenses not covered by SSI payments. Instead, Mr. Schmachtenberg was ordered to pay all of the mortgage, taxes, insurance, and condominium fees on the condominium in which his son lived and only one-half of his son’s uncovered medical, dental, and psychological care. Henceforth, he was relieved of any obligation to pay his son’s utilities. Ms. McHugh was ordered to pay the remaining half of her son’s medical expenses.

The trial court further modified the child support provisions of the marital settlement agreement to apply the child support guidelines thereby making each party responsible for a portion of their child’s support. Relying on income imputed to Ms. McHugh at the time of the parties’ 2002 divorce ($18,000 a year from prior employment by Mr. Schmachtenberg), combined with an additional $24,795 a year in imputed “income” from “recurring gifts” from her parents, the court below applied the statutory child support guidelines to order Mr. Schmachtenberg to pay $936 per month in child support and Ms. McHugh to pay $638 per month to support their son. Based on this formulation, the court below concluded that Ms. McHugh would have ample funds to pay for the son’s needs and many of his wants, including, for instance, a new computer or cell phone.

The permanent periodic alimony provisions of the final judgment likewise were modified. Based on a determination that Mr. Schmachtenberg’s current before tax income was only $124,391, compared with a before tax income of over $300,000 in 2001 (the last full year before the divorce), the court concluded that a substantial change in circumstances had occurred to warrant an alimony modification. Imputing both the amount of income imputed to Ms. McHugh at the time of the divorce some six years earlier ($18,000), and, on the authority of Ordini v. Ordini, 701 So.2d 663 (Fla. 4th DCA 1997), an additional $2066 per month representing the average amount given to her over the years by her parents, the court modified Ms. McHugh’s alimony award from $5250 per month to $1800 a month, retroactive to the date of the order of modification. Ms. McHugh was also ordered to repay Mr. Schma-chtenberg for any overpayment of alimony during pendency of these proceedings.

For the following reasons, we reverse both the modification of the child support provisions of the parties’ settlement agreement and, in part, the modified alimony award.

A. CHILD SUPPORT

We reverse the order “clarifying” the child support provisions of the final judgment because the mediated settlement agreement incorporated into that judgment is clear and unambiguous and in need of no clarification. We also find no basis in this record to support modification of that award.

A marital settlement agreement that has been ratified by the trial court “is subject to interpretation like any other contract.” Ballantyne v. Ballantyne, 666 So.2d 957, 958 (Fla. 1st DCA 1996); see Levitt v. Levitt, 699 So.2d 755, 756 (Fla. 4th DCA 1997) (“It is well settled that a marital settlement agreement is subject to interpretation like any other contract.”). Accordingly, terms contained in such agreements should be given their plain meaning and “not be disturbed unless found to be ambiguous or in need of clarification, modification, or interpretation.” Ballantyne, 666 So.2d at 958; see Levitt, 699 So.2d at 757 (“It is only when a term in a marital settlement agreement is ambiguous or unclear that the trial court may consider extrinsic evidence as well as the parties’ interpretation of the contract to explain or clarify the ambiguous language.”); see also Andersen Windows, Inc. v. Hochberg, 997 So.2d 1212, 1214 (Fla. 3d DCA 2008) (“Courts, without dispute are not authorized to rewrite clear and unambiguous contracts. And where a contract is clear and unambiguous, it must be enforced as written.”) (citation omitted).

In this case, no ambiguity was alleged to exist. Rather, the petition for modification alleges only that Mr. Sehmachtenberg’s contractual obligation to financially support his son, as he had “done in the past,” had gradually increased over time, causing friction between the parties:

3. Pursuant to the Mediated Marital Settlement Agreement, the Former Husband agreed to provide support to the parties’ adult disabled son.... More specifically, the Agreement provides as follows:
XVIII. PARTIES ADULT DISABLED CHILD: The husband agrees to support the parties’ adult disabled child as he has done in the past.
4. The subject adult disabled son has a condition called Tuberous Sclerosis, presenting symptoms of mental impairment and childlike behavior. The Former Husband is presently paying on behalf of the parties’ adult disabled son the following expenses: (a) mortgage payment for condo where son resides, (b) taxes and insurance for condo where son resides[,] (c) association maintenance fee for condo where son resides, (d) son’s cell phone, (e) son’s utilities including DSL and cable, (f) food and other expenses.
5. The provision in the Agreement requiring the Former Husband to support his son as he has done [in] the past requires clarification, as the language therein is vague, ambiguous, and therefore subject to differing interpretations, especially with the passage of time. More specifically, the Former Husband’s support of the son at the time of the Final Judgment, as “done in the past”, was significantly less than the expenses currently being paid by him. Notwithstanding this fact, the Former Wife is dissatisfied with the support which leads to hostility affecting adversely the son.
6. Accordingly, the provision in the Agreement as to the support of the parties’ adult disabled son should be clarified and or subject to the Child Support Guidelines.

These allegations demonstrate no ambiguity in need of clarification. Moreover, no ambiguity was proved to exist. To the contrary, the testimony was that Mr. Schmachtenberg paid all of his son’s expenses before the parties’ divorce, and that he had continued to do so afterward, all as contemplated by the parties’ agreement. There was, therefore, no basis for clarification.

There also was no basis on which the marital settlement agreement could be modified to reduce Mr. Schmachtenberg’s obligation to fully support his son in favor of applying the statutory child support guidelines to impose some or all of those costs on his former wife. Under section 61.13(l)(a) of the Florida Statutes, support obligations detailed in a final judgment of dissolution of marriage may be modified in three circumstances: (1) where there is a substantial change in circumstances; (2) where modification is necessary for the best interests of the child; or (3) where the child has attained majority. § 61.13(l)(a), Fla. Stat. (2007); see Overbey v. Overbey, 698 So.2d 811, 813 (Fla.1997). Where, as here, a child support award is based on an agreement incorporated into a final judgment, “a heavier burden rests on the party seeking a reduction than otherwise would be required.” Overbey, 698 So.2d at 814 (citation omitted).

In this case, no substantial change in circumstances was demonstrated to support modification of Mr. Schmachtenberg’s agreed-to support obligation. As both Mr. Schmachtenberg and his attorney confirmed, no substantial change in circumstances exists:

[By counsel for Mr. Schmachtenberg]: ... The former husband pays now, and always has paid the mortgage on the Mariposa condominium [where the son lives], the property taxes on the Maripo-sa condominium, the condo fees, and special assessments on the Mariposa condominium. All of [the son’s] utilities, his cable, his Internet, his home phone, his cell phone, and his uncovered medical bills, including therapy that he is now in, in which he didn’t need before the guardianship.
The only thing that has changed ever is that before the parties’ dispute started, when they were fírst divorced, Mr. Schmachtenberg managed [their son’s] SSI. He was the one that received the payment, and he used that money to buy [the son’s] groceries and give [the son] an allowance.
Now [Ms. McHugh] receives the SSI, and she provides [the son’s] groceries.
So from [Mr. Schmachtenberg’sj own standpoint, nothing has changed, but [Ms. McHugh] ... is dissatisfied with the amount of support, and is always sending letters and other things saying, you need to get [the son] a state-of-the-art computer, you need to get him a state-of-the-art phone....
Q. [by counsel for Mr. Schmachtenberg], Has anything changed from what support you were providing at the time of the divorce and what you’re doing now? A. [by Mr. Schmachtenberg]. No, it has slightly increased, as I indicated the cable has increased.
Q. Do you have a problem with the paying of the expenses that you have been paying?
A. No, I do not....

(Emphasis added).

Mr. Schmachtenberg clearly failed to sustain the burden imposed on him to demonstrate a substantial change in circumstances.

He also failed to demonstrate that it is in his disabled son’s best interests to decrease the amount of support that he agreed to pay in favor of imposing those costs on Ms. McHugh. The record is that Mr. Schmachtenberg has the financial ability to pay, and consistently has paid, for the goods and services needed by his son; whereas, Ms. McHugh has no income from which to pay such costs. It cannot, therefore, be said that it is in this child’s best interests to impose a portion of his expenses which are currently being paid by his father, who can afford to pay them, on his mother who has no ability to pay them. And, while there is testimony that the parties do from time to time disagree as to the amount that should be paid for particular items or services (such as computers or cell phones) for this disabled child, and that these disagreements are disruptive to all of the parties, there is no testimony that these disagreements have proved so harmful to this child that Mr. Schmachten-berg’s support obligations to him should be decreased. This is especially so since the marital settlement agreement itself contemplates that such matters will be addressed and resolved by the probate court.

In short, neither clarification nor modification of the child support provisions of the marital settlement agreement incorporated into the final judgment should have been granted.

B. PERMANENT PERIODIC ALIMONY

While we agree that the circumstances warrant modification of Mr. Schmachten-berg’s obligation to pay permanent periodic alimony, we find that the court below erred in determining the amount by which that award was to be modified.

An alimony award contained in a final judgment may be modified where a substantial, material, involuntary, and permanent change in circumstances not contemplated at the time the final judgment has occurred. Eisemann v. Eisemann, 5 So.3d 760, 762 (Fla. 2d DCA 2009). The record in this case shows that in 2002, the year in which the parties entered into their marital settlement agreement, Mr. Schmachtenberg’s gross income was approximately $131,000. In 2003, it was approximately $170,000; in 2004, approximately $129,000; in 2005, approximately $148,000; in 2006, approximately $151,000; and in 2007, approximately $147,000. While it is clear that Mr. Schmachtenberg’s income increased between the date of the parties’ agreement and the date of the modification, we cannot say that the court below abused its discretion in granting a modification in light of the fact that the year before the parties entered into their agreement Mr. Schmachtenberg’s before tax income was over $300,000 and the parties expressly stated in their marital settlement agreement that the $5250 alimony agreed upon was based on “the husband’s projected and estimated income of $250,000” per year. There is no dispute that this level of income has not been duplicated since then. For this reason, we agree that modification of the amount of the permanent periodic alimony award was warranted.

The record does not, however, for a number of reasons support the drastic reduction in that award from $5250 to $1800 per month ordered below. First, Mr. Schmachtenberg’s “before tax” income should not have been reduced from $147,214 to $124,391 to give him credit for a purported rental loss on the condominium (unit 361) that he received as part of the parties’ divorce settlement. The testimony was that the parties owned this unit before the divorce, and that Mr. Schma-chtenberg lived in it both before and after the divorce. After Mr. Schmachtenberg remarried, and he and his new wife moved into another condominium, he kept unit 361 permitting his elderly parents to live there. After they died, he continued to own the unit, now worth over $600,000, using it as a cash cow and borrowing over $200,000 against it — rather than using his own substantial funds (including a $500,000 inheritance from his parents) — to pay for personal expenses (including tens of thousands of dollars to maintain his 52 foot yacht).

Below, he sought to reduce his gross income in an amount equal to $37,295.69 claiming that he had incurred $63,465.84 in expenses related to this unit (derived from first and second mortgage payments ($34,-189.08), property taxes ($10,593.16), maintenance fees ($10,030.96), cable TV bills ($727.32), electricity charges ($1,350), brokerage commissions ($2267), repair costs ($3,877.04), and telephone expenses ($431.28)), but had earned only $26,170.15 in rental income. The court below, while not allowing Mr. Schmachtenberg to deduct the entire $37,295.69 as a rental loss to reduce his gross income, permitted him to deduct $22,823 after concluding that he should receive no credit for payments made on the line of credit secured by the condominium (a little over $14,000) because he had used the funds from this loan for his own purposes.

While we agree that Mr. Schma-chtenberg was entitled to no credit for payments made toward the line of credit secured by this property, he should have received no deduction for any portion of the expenses relating to it. A former spouse cannot reduce his or her disposable income by voluntarily incurring debt. See Yangco v. Yangco, 901 So.2d 217, 221 (Fla. 2d DCA 2005); Dykes v. Dykes, 712 So.2d 1189, 1193 (Fla. 1st DCA 1998) (“Alimony may not be reduced merely because the petitioner seeking the reduction has voluntarily incurred new financial obligations which make it difficult to meet his or her alimony obligations.”). That is precisely what Mr. Schmachtenberg did here, first by keeping unit 361 long after he and his parents stopped living there and long after he moved into another condominium — -a condominium encumbered by a $195,000 mortgage and listed for sale at over $1.3 million — and now by claiming an income loss because he had recently decided to treat this $600,000 asset as a rental property. On these facts and the record before us, no deduction from gross income for this purported rental income loss should have been allowed.

Income also should not have been imputed to Ms. McHugh for the purpose of determining the amount of alimony Mr. Schmachtenberg should pay. There is no dispute that Ms. McHugh is currently unemployed and has engaged in no meaningful employment since the parties’ divorce in 2002. The undisputed record is, therefore, that her current income is $0. Rather than using that number as a basis for determining need and thus the amount of alimony Mr. Schmachtenberg should currently pay, the court below imputed $18,000 in income to Ms. McHugh, which is the amount the parties agreed to impute to her in 2002 when they executed their marital settlement agreement. The court also imputed an additional $2066 per month from gifts from her parents. This was improper.

The standard of review for a trial court’s imputation of income is whether there is competent, substantial evidence to support it. See Gruber v. Gruber, 857 So.2d 329, 330 (Fla. 2d DCA 2003) (stating the standard of review when considering imputation of income “is whether the trial court’s determination is supported by competent, substantial evidence”); Wendel v. Wendel, 805 So.2d 913, 914 (Fla. 2d DCA 2001) (same). Income may be imputed to a spouse only where there is competent, substantial evidence which establishes “the current job market, [the spouse’s] more recent work history, [the spouse’s] occupational qualifications, and the prevailing earnings level in the local community where [that spouse] and [her] family live[s].” Rabbath v. Farid, 4 So.3d 778, 782 (Fla. 1st DCA 2009); Gruber, 857 So.2d at 331 (finding no competent, substantial evidence to support the imputation of income to the former spouse where the record contained “no evidence or testimony that the former [spouse] was employable or capable of earning income”). This evidentiary burden was not satisfied in this case.

The record in this case is that while Ms. McHugh has both a college degree and a real estate license, she has not held meaningful full-time employment since the 1970’s. The last meaningful part-time employment she enjoyed was in Mr. Schma-chtenberg’s law office where she assisted in real estate related work. Since the divorce in 2002, Ms. McHugh has sold only two properties as a real estate agent and has spent most of her time assisting the parties’ disabled son. Other than this, there is no evidence that, now at age 58 and many years outside the workplace, Ms. McHugh is employable except as a real estate agent. As to this (or for that matter any other) line of work, there is no evidence whatsoever as to the current job market or as to the prevailing earnings level for such agents in the community where Ms. McHugh lives. Absent such evidence, income could not be imputed to her.

The amount imputed to Ms. McHugh in the 2002 marital settlement agreement, as the agreement itself confirms, did not represent her actual annual income, but represented no more than an estimate of potential future earnings:

The alimony contained in this agreement is based on the husband’s projected and estimated income of $250,000 (two hundred thousand five hundred) per year and the wife’s projected and estimated income of $18,000 (eighteen thousand) per year. Neither party shall seek a modification of the alimony agreed to herein, based on the income earned in the year 2002.

As we know, the “projected and estimated” income imputed to Mr. Schmaehten-berg in this agreement did not come to fruition; nor, as the record confirms, did Ms. McHugh’s. This estimate should not, therefore, have been attributed to her now for the purpose of determining either alimony or child support.

Nor should any amount have been imputed as income to her because her parents gave her money to make ends meet. In Rogers v. Rogers, 824 So.2d 902, 903 (Fla. 3d DCA 2002) (quoting Bromante v. Bromante, 577 So.2d 662, 663 (Fla. 1st DCA 1991)), this Court confirmed that when determining need and ability to pay alimony or child support, “the general rule is that the trial court may only consider the ‘financial resources of the parties and not the financial assistance of family or friends.’ ” see also Oluwek v. Oluwek, 2 So.3d 1038, 1039 (Fla. 2d DCA 2009). We also recognized that an exception to this general rule exists where such “gifts are continuing and ongoing, not sporadic, and where the evidence shows that the gifts will continue in the future.” Rogers, 824 So.2d at 903. But as the Ordini decision — which was relied upon by the lower court — confirms, this exception does not apply here.

In Ordini, a husband and wife, both in their thirties, lived in a home supplied by the husband’s father. Although the husband rarely actually went to work, he received a regular weekly “salary” (amounting to $6500 a month) from his father’s business to cover his family’s expenses. There also was testimony from the husband’s mother that she would continue making these payments to him for his benefit and for that of his children and ex-wife after the divorce. On these facts, the Fourth District remanded the matter for the trial court to determine whether income should be imputed to the husband. Ordini, 701 So.2d at 666.

Nothing even remotely similar occurred here. Rather, Ms. McHugh testified that she had received substantial monetary gifts from her parents since the divorce to help her make ends meet. Mr. Schma-chtenberg’s expert testified that he had reviewed Ms. McHugh’s bank statements and segregated all of the deposits made to her account from any source he could not identify. He then averaged these amounts to conclude that Ms. McHugh was receiving what amounted to $2,066 per month from her family. This amount was imputed as income to her by the court below.

However, as Ordini confirms, where a spouse receives sporadic sums (even if substantial) to defray living expenses, those sums cannot be imputed as income:

In Sol [v. Sol, 656 So.2d 206 (Fla. 3d DCA 1995) ], which was a modification proceeding, the trial court granted an increase in child support, and included, in arriving at husband’s income for the child support guidelines, $20,000 a year, based on gifts that the husband had received from his parents during the three years preceding the modification hearing. In reversing, the third district characterized the evidence as showing “large sporadic cash gifts ... which varied in frequency and amount over the preceding several years.” Id. at 208. The court concluded that the “imputation of future gift income” to child support, under those circumstances was impermissible, citing Bedell v. Bedell, 583 So.2d 1005 (Fla.1991); Shiveley v. Shiveley, 635 So.2d 1021 (Fla. 1st DCA 1994); Bob v. Bob, 310 So.2d 328 (Fla. 3d DCA 1975).
In Sol, ... the gifts were irregular in regard to both the amount and when they were made. In Bob, the wife’s parents had been regularly helping the parties while the husband was in medical school, and the court held that the payments were “in all probability meant to be temporary,” while the husband was being educated for a greater earning power. The court reversed an alimony award of thirty percent of the husband’s income, holding that he was only obligated to support the wife in a standard of living which they could have maintained without the gifts from her parents.
There are cases, however, in which gifts have been considered. The third district recently held that the trial court did not err in imputing income to the wife for purposes of child support, based on monthly payments of the wife’s living expenses by the wife’s mother. Cooper v. Kahn, 696 So.2d 1186 (Fla. 3d DCA 1997).... The court concluded that it was within the trial court’s discretion to include ... gifts, which were “continuing and ongoing,” and distinguished the “sporadic gifts” in Sol.

Id. at 664-665.

This is especially so, according to Ordi-ni, because a spouse struggling to survive on inadequate support should not be presented with the Hobson’s choice of either starving to death or risking loss of already inadequate support by accepting family largesse:

In Bedell [v. Bedell, 583 So.2d 1005, 1008 (Fla.1991) ], the ... husband argued that he should not have to pay more [alimony] because of the wife’s mother’s assistance. It is not surprising that the supreme court rejected the husband’s argument because a spouse on the receiving end, who is being given assistance because of inadequate support, would be in a catch-22 if courts were to reduce support obligations for that reason.

Id. at 665.

That is precisely what happened here. The record in this case is that Ms. McHugh received substantial monetary gifts from her parents following the divorce. There is no evidence that these gifts were made on a regular, ongoing basis or that they would continue in the future. Absent such evidence, Ordini does not apply, and amounts received by Ms. McHugh from her parents should not have been imputed to her as income.

Ms. McHugh’s alimony should not, therefore, have been reduced based on either a determination of Mr. Schmachten-berg’s before tax income after deduction for rental loss and costs related to unit 316 or on income imputed to Ms. McHugh. On remand, any reduction in alimony must be based on evidence confirming both Ms. McHugh’s need and Mr. Schmachtenberg’s ability to pay predicated on a $147,000 gross income.

Accordingly, the order modifying the final judgment with regard to child support is reversed. The alimony modification is reversed as to amount and remanded for redetermination.

SALTER, J., concurs.

CORTIÑAS, J.

(dissenting).

I must respectfully dissent. Unlike the majority, I would confine my decision to the applicable standards of review: a de novo standard to review whether a contract provision regarding child support in the marital settlement agreement was ambiguous and an abuse of discretion standard to review modification of the former husband’s alimony obligations. Under those standards of review, I must affirm.

“Settlement agreements are contractual in nature and are therefore, interpreted and governed by contract law.” Comm’l Capital Res., LLC v. Giovannetti, 955 So.2d 1151, 1153 (Fla. 3d DCA 2007) (citing Cadle Co. v. Schecter, 602 So.2d 984, 985 (Fla. 3d DCA 1992)). “Where a contract is susceptible to two different interpretations, each one of which is reasonably inferred from the terms of the contract, the agreement is ambiguous.” Id. (citing Miller v. Kase, 789 So.2d 1095, 1097-98 (Fla. 4th DCA 2001)). “[W]hether an ambiguity exists in a contract is a question of law.” Essex Ins. Co. v. Simpler, 911 So.2d 794, 794 (Fla. 1st DCA 2004). Therefore, “the standard of review applicable to the determination of whether a contract is ambiguous is the de novo standard of review.” Weisfeld-Ladd, v. Estate of Ladd, 920 So.2d 1148, 1150 (Fla. 3d DCA 2006) (quoting Wagner v. Wagner, 885 So.2d 488, 492 (Fla. 1st DCA 2004)). “Thus, ‘[t]o be judi-dally enforceable ... a settlement agreement ... must be sufficiently specific as to be capable of implementation.... [C]ourts will not attempt to enforce a settlement agreement that is too vague or ambiguous in its meaning or effect.’ ” Gaines v. Nortrust Realty Mgmt., Inc., 422 So.2d 1037, 1039-40 (Fla. 3d DCA 1982) (quoting United Mine Workers of Am. v. Consolidation Coal Co., 666 F.2d 806, 809-10 (3d Cir.1981) (citations omitted)). See also Rock-Weld Corp. of Puerto Rico v. Rock-Weld Equip. Corp. of Fla., 184 So.2d 186 (Fla. 3d DCA 1966) (stating that in order to constitute a settlement agreement, the language of the agreement must be clear).

The precise language of Article XVII of the marital settlement agreement, which the trial court reviewed, reads as follows: “The Husband agrees to support the parties’ adult disabled child as he has done in the past. The Husband’s support shall be a supplement, but not supplant, the child’s government benefits and shall be subject to modification in accordance with the child’s needs.” (Emphasis added).

This language instigated six years of disputes between the former wife and the former husband. Relying on its vague pronouncement, the former wife characterized the adult disabled son’s expenses (such as large screen TVs, computers, and cell phones) as “needs” while the former husband termed them “wants.” The former wife testified to her belief that, “consistent with the terms of the parties’ [ajgreement, the former [hjusband was to provide for 100% of [the child’s] expenses, whatever they may be.” (Emphasis added). She believed that these comprised “all of [the child’s] needs and that he would have the same type of lifestyle and things that he had during the parties’ intact marriage,” such as “a computer ... every other year ... cruises, European vacations, all different kinds of vacations ... a few thousand dollars for his birthday....” In contrast, the former husband testified that he believed the child “should be cared for, but he shouldn’t be provided every single thing he wants.” He sought a “defined definition” of his responsibility because the child’s wants “were disproportionate and exaggerated, because of [his] medical condition, and his mother’s encouragement.” Considering the years of litigation resulting from the agreement, the former wife’s counsel conceded that the marital settlement agreement was “poorly drafted” and “vague as to what [the child] was getting.”

Not at all surprisingly, the trial court found Article XVII to be ambiguous and clarified it. The court derived its authority from section 61.13(l)(a), Florida Statutes, which authorizes modification of the amount and terms and conditions of child support when it is in the child’s best interest to do so, concluding that “the litigation has caused distress to [the child] and it is in his best interest that the child support be defined as a sum certain.” In addition, Article XVII itself provides that the child support was subject to modification “in accordance with the child’s needs.”

The majority reverses the very able trial judge’s determination of ambiguity by terming the above-referenced language “clear and unambiguous and in need of no clarification.” Huh? Far from being a model of crystalline clarity, this language is so evidently unclear and obviously ambiguous that the correctness of the trial judge’s finding of ambiguity can only be undone and reversed through a “we know best” standard of review. See Dep’t of Highway Safety & Motor Veh. v. Saleme, 963 So.2d 969, 978 (Fla. 3d DCA 2007) (Cortiñas, J., dissenting).

When the parties to an ambiguous contract suggest different interpretations, “the issue of the proper interpretation is an issue of fact requiring the submission of evidence extrinsic to the contract bearing upon the intent of the parties.” Bacardi v. Bacardi, 386 So.2d 1201, 1203 (Fla. 3d DCA 1980). The trial court followed this procedure and ultimately accepted the former husband’s interpretation of Article XVII. Despite precedent mandating that because “intent is an issue of fact, the trial court’s ruling ‘should be sustained if supported by competent substantial evidence,’ ” Weisfeld-Ladd, 920 So.2d at 1150 (quoting Dinallo v. Gunster, Yoakley, Valdes-Fauli & Stewart, P.A., 768 So.2d 468, 471 (Fla. 4th DCA 2000)), the majority has intruded upon the trial court’s fact-finding province and summarily determined the former husband’s obligation is to pay “all of his son’s expenses.”

Similarly, the majority eviscerates the abuse of discretion standard that appellate courts are required to use when reviewing orders modifying alimony and child support. See Leonard v. Leonard, 971 So.2d 263, 264 (Fla. 1st DCA 2008); Woolf v. Woolf, 901 So.2d 905, 911 (Fla. 4th DCA 2005). Judicial discretion is abused only

when the judicial action is arbitrary, fanciful, or unreasonable, which is another way of saying that discretion is abused only where no reasonable man would take the view adopted by the trial court. If reasonable men could differ as to the propriety of the action taken by the trial court, then it cannot be said that the trial court abused its discretion.

Canakaris v. Canakaris, 382 So.2d 1197, 1203 (Fla.1980) (quoting Delno v. Mkt. St. Ry. Co., 124 F.2d 965, 967 (9th Cir.1942)).

Here, the trial court, invested with authority by section 61.14(l)(a), Florida Statutes, made a modification order “as equity requirefd], with due regard to the changed circumstances or the financial ability of the parties or the child, decreasing ... the amount of ... alimony provided for in the agreement or order.” The court did so after “considering] the relative financial circumstances of both parties at the time of the final judgment compared with the parties’ relative financial circumstances when the petition for modification was filed” and determining that the former husband had demonstrated “a substantial, material, permanent change in circumstances which was not contemplated at the time the amount of alimony originally was set.” Carls v. Carls, 890 So.2d 1135, 1137-38 (Fla. 2d DCA 2004) (citing Pimm v. Pimm, 601 So.2d 534, 536 (Fla.1992)).

The majority seems to forget that “[i]n reviewing a true discretionary act, [an] appellate court must fully recognize the superior vantage point of the trial judge ...,” who was in a position to “personally observe the participants and events of the trial.” Canakaris v. Canakaris, 382 So.2d at 1202-03. Instead, after reciting the former husband’s income for the past seven years, the majority concludes that he suffered “a substantial, material, involuntary, and permanent change in circumstances not contemplated at the time the final judgment ... occurred,” entitling him to a reduction in alimony, yet spends several more pages analyzing numbers and rehearsing facts to explain its reversal of the amount of the trial court’s modification. As the trial court had already evaluated the parties’ ample testimony and record evidence in making its well-reasoned ruling, this Court should not have rehashed them and interfered with the trial court’s discretionary power.

Accordingly, I would affirm.

      . The petition also sought reformation of the parties’ agreement regarding transfer of title of the condominium in which their son lived. The parties agreed that this portion of their agreement should be reformed to protect the property and to assure that it would revert to them as contemplated in the event their son predeceased them. There is, therefore, no issue as to the reformation request that need be addressed here.

      . The independent guardian is the logical person or entity to provide initial consideration, for any dispute between Mr. Schmachtenberg and Ms. McHugh regarding the adult disabled child’s needs. Mediation of any such disputes — which are matters of enforcement, not modification of the marital settlement agreement — would also be advisable.

      . The 2007 figure is derived from $91,057 from Mr Schmachtenberg’s professional association; a $5,132 "addbaclc” for non-recurring professional fees; $13,164 from his title insurance company; $7,654 in dividends and interest; and $30,208 in fringe benefits.

      . The testimony at trial was that after Ms. McHugh graduated from college she worked for a time in the early 1970’s as a journalist. She then worked, again in the 1970's, for a couple of years teaching school while Mr. Schmachtenberg was serving in the Air Force in Italy. After Mr. Schmachtenberg set up his own law practice in 1991, she worked part-time at his firm for the next six years while their son was in school. Her responsibilities included preparing files for closings, assembling documents for lenders and doing post-closings. She thereafter obtained a real estate license, but she is not a licensed broker. After she stopped working for her husband, Ms. McHugh worked part-time as a real estate salesperson with a broker. Between 2000 and 2005, Ms. McHugh sold two properties, but she sold no properties in the two years prior to the trial.

      . Due to the acrimonious litigation, the child’s relationship with his father suffered, and he was left ill, "extremely confused,” and in therapy.

      . I agree with the majority that an independent guardian should have been involved; however, this does not discount the correctness of the trial judge's determination.

      . In contrast, the majority states two pages later that the former husband is required to pay "for the goods and services needed by his son." If that is the case, why did the majority feel the need to reverse the trial court’s formula, which was meant to provide "ample support to pay for [the child's] needs and many of his wants"?

      . In contrast, three pages earlier, without looking at his income, the majority decides that "no substantial change in circumstances was demonstrated to support modification” of the child support obligation.


author: ROBERTS, J.

text:
    GEICO INDEMNITY COMPANY, Appellant, v. Kutasha P. SHAZIER; Tercina S. Jordan; Avis Rent-A-Car System, LLC, a Foreign Limited Liability Corporation; Rethell Byrd Chandler, as Mother and Natural Guardian of Jamelia A. Chandler, a minor; Carolyn E. Price, Individually and on behalf of her minor child Christeegia A. Price; The Estate of Camelia Y. Byrd, Lida Jean Parker, Whitney Marshall, Tenisha Marshall, and Monica Steele, Appellees.
    No. 1D09-2595.
    District Court of Appeal of Florida, First District.
    March 10, 2010.
    Rehearing Denied May 4, 2010.
    Angela C. Flowers of Kubicki Draper, Ocala, for Appellant.
    James E. Messer, Jr. of Fonvielle Lewis Foote & Messer, Tallahassee, for Appellee Monica Steele.
    Henry J. Graham, II, of Graham Law Firm, P.A.; Robert Scott Cox and David H. Burns of Cox & Burns, Tallahassee, for Appellees Carolyn E. and Christeegia A. Price.
    Gary A. Roberts and Stenise Rolle of Gary A. Roberts & Associates, Tallahassee, for Appellees the Estate of Camelia Y. Byrd and Linda Jean Parker.
    Henry C. Hunter of Henry C. Hunter & Associates, P.A., Tallahassee, for Appellees Whitney and Tenisha Marshall.
    Thomas Porter Crapps of Crapps Law Firm, P.A., Tallahassee, for Appellees Ret-hell Byrd and Jamelia A. Chandler.
   ROBERTS, J.

This appeal arises from a final summary judgment determining that coverage existed under a family automobile insurance policy issued by the appellant, Geico Indemnity Company (“Geico”), for an accident involving a rental car. Geico argues that there was no coverage under the policy because the rental car did not qualify as a “temporary substitute auto.” We agree and reverse.

Kutasha Shazier owned a Ford Expedition. The Ford Expedition was covered under the policy issued by Geico to Shazier and her husband. The policy contained a standard “temporary substitute auto” provision which also extended coverage to:

[A] private passenger, farm, or utility auto or trailer, not owned by you, temporarily used with the permission of the owner. This vehicle must be used as a substitute for the owned auto or trailer when withdrawn from normal use because of its breakdown, repair, servicing, loss or destruction.

(Emphasis modified.)

When the Ford Expedition began experiencing transmission problems, Shazier rented a Hyundai Sonata (“the rental car”) from Avis Rent-A-Car System, LLC (“Avis”). Pursuant to the rental agreement, Shazier was the only person authorized to drive the rental car. The rental agreement provided in pertinent part:

NO ADDITIONAL OPERATORS ARE AUTHORIZED OR PERMITTED WITHOUT AVIS’ PRIOR WRITTEN APPROVAL IN ACCORDANCE WITH THE TERMS AND CONDITIONS OF THE RENTAL AGREEMENT OR APPLICABLE STATE LAW.
15. Prohibited Use of the Car. Certain uses of the car and other things you or a driver may do, or fail to do, will violate this agreement. A VIOLATION OF THIS PARAGRAPH, WHICH INCLUDES USE OF THE CAR BY AN UNAUTHORIZED DRIVER, WILL AUTOMATICALLY TERMINATE YOUR RENTALE.]

(Emphasis removed.)

Subsequently, the rental car was involved in an accident while being driven by Tercina Jordan, an unauthorized driver. Six of the passengers in the rental car sustained injuries and one passenger died. The passengers or their representatives brought personal injury actions against Shazier, Jordan, and Avis. Geico, in turn, filed a complaint for declaratory judgment alleging that it owed no duty to defend and/or indemnify because the policy provided no coverage to Shazier or Jordan for the injuries sustained by the passengers. One of the passengers moved for summary judgment on the grounds that coverage existed because the rental car qualified as a “temporary substitute auto.” Geico also moved for summary judgment asserting that no coverage existed because the rental car did not qualify as a “temporary substitute auto” as it was not being used with Avis’s permission. The trial court agreed with the passenger and entered final summary judgment in the passenger’s favor.

Under the policy, in order for coverage to attach in this case, the “temporary substitute auto” must have been used with the permission of Avis. As the owner, Avis had the authority to define the scope of permissible use of the rental car. See Duncan Auto Realty, Ltd. v. Allstate Ins. Co., 754 So.2d 863, 865 (Fla. 3d DCA 2000) (“[T]he owner of the temporary substitute vehicle, not its user, possesses the authority to define the scope of permissible use of the substitute vehicle.”). As evidenced by the rental agreement, Avis did just that. Avis granted Shazier permission to use the rental car so long as she was the only person who did so. Jordan’s use of the rental car automatically revoked the permission granted to Shazier by Avis. Therefore, because it was not being used with Avis’s permission, the rental car did not qualify as a “temporary substitute auto” and no coverage existed under the policy.

Accordingly, we REVERSE and REMAND with directions to the trial court to enter final summary judgment in favor of Geico.

HAWKES, C.J., and CLARK, J., concur.