       DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                             FOURTH DISTRICT

                            LEE A. FISCHER,
                               Appellant,

                                     v.

                         CANDICE K. FISCHER,
                              Appellee.

                              No. 4D15-2147

                             [June 29, 2016]

  Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm
Beach County; Jeffrey Dana Gillen, Judge; L.T. Case No.
501997DR003933XXDIFY.

  John D. Boykin of Ciklin Lubitz & O’Connell, West Palm Beach, for
appellant.

  Matthew S. Nugent and Adam M. Zborowski of Nugent Zborowski &
Bruce, North Palm Beach, for appellee.

DAMOORGIAN, J.

   Lee Fischer (“Former Husband”) appeals the trial court’s order
involuntarily dismissing his action to modify Candice Fischer’s (“Former
Wife”) alimony award. We reverse.

   Former Husband filed a two count supplemental petition for
modification of alimony alleging the following two substantial changes in
circumstances: (1) Former Husband had a reduced ability to pay due to
his “desire to retire in the near future;” and (2) Former Wife had a reduced
need for alimony due to additional substantial and unanticipated sources
of post-dissolution income.

    The matter proceeded to a two day trial. On the first day of trial, the
trial court heard extensive testimony concerning Former Husband’s
decreased ability to pay alimony due to his purported retirement the week
before trial. As to the issue of Former Wife’s alleged reduced or eliminated
need for alimony, the undisputed evidence established that Former Wife
was currently receiving lifetime monthly annuity payments and had
inherited a considerable amount of assets from her family and boyfriend.

    At the beginning of the second day of trial, and before Former Husband
was given the opportunity to present the testimony of two additional
witnesses, the trial court announced that it believed the modification
petition was premature. The court reasoned that because Former
Husband had purportedly just retired and had no track record of his post-
retirement income, his anticipated reduced ability to pay alimony was
speculative. In response, Former Husband argued that irrespective of his
income, the court could still grant his petition on the ground that Former
Wife no longer had a need for alimony. The trial court disagreed and
involuntarily dismissed Former Husband’s entire petition without
prejudice for him to file a new petition in the future.

   On appeal, Former Husband argues that: (1) the trial court violated
Former Husband’s due process rights by involuntarily dismissing the
petition before he had finished presenting his case; and (2) the trial court
erred in dismissing the entire petition based on Former Husband’s
inability to establish only one of the listed grounds for modification. We
agree with both arguments.

   Florida Rule of Civil Procedure 1.420(b) governs the involuntary
dismissal of actions and provides in pertinent part:

      After a party seeking affirmative relief in an action tried by
      the court without a jury has completed the presentation
      of evidence, any other party may move for a dismissal on
      the ground that on the facts and the law the party seeking
      affirmative relief has shown no right to relief, without waiving
      the right to offer evidence if the motion is not granted. The
      court as trier of the facts may then determine them and
      render judgment against the party seeking affirmative relief
      or may decline to render judgment until the close of all the
      evidence. . . .

Fla. R. Civ. P. 1.420(b) (emphasis added). See Swait v. Swait, 958 So. 2d
552, 553 (Fla. 4th DCA 2007) (applying Florida Rule of Civil Procedure
1.420 in a modification of alimony action).

    We have repeatedly held that a trial court may not involuntarily dismiss
an action before the plaintiff has rested its case. See Wachovia Mortg., FSB
v. Montes, 156 So. 3d 1105, 1106 (Fla. 4th DCA 2015) (holding that the
trial court reversibly erred in involuntarily dismissing the case before the

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plaintiff finished presenting its case-in-chief); Lustig v. Garcia, 789 So. 2d
482, 483 (Fla. 4th DCA 2001) (“[A]n involuntary dismissal may not be
entered before the plaintiff has completed the presentation of his
evidence.”). Here, at the time of the court’s involuntary dismissal of the
entire petition, Former Husband had not yet finished presenting his case-
in-chief. Accordingly, “[b]y denying [Former Husband] the opportunity to
complete [his] case-in-chief, the trial court denied [Former Husband his]
due process.” A.N. v. M.F.–A., 946 So. 2d 58, 60 (Fla. 3d DCA 2006).

    The trial court further erred in dismissing the entire multi-count
petition based solely on Former Husband’s inability to establish one of the
listed grounds for modification. In actions involving numerous counts,
dismissal of the entire case is proper only if the plaintiff has failed to
establish a prima facie case as to each of the counts. See Xamnad, Inc. v.
Patio Cafe, Inc., 486 So. 2d 699, 700 (Fla. 4th DCA 1986) (holding that the
trial court reversibly erred in dismissing the multi-count complaint in its
entirety when the facts therein supported at least one cause of action); see
also Sec. Abstract & Ins. Co. v. Fid. Nat’l Title Ins. Co. of Pa., 668 So. 2d
658, 658 (Fla. 4th DCA 1996) (holding that the trial court properly
dismissed the entire multi-count complaint because the plaintiff “failed to
establish a prima facie case as to any of [the counts]”).

    Here, before his case was dismissed, Former Husband presented
evidence establishing that, post-dissolution, Former Wife began receiving
additional permanent monthly income and had inherited substantial
assets. See Jarrard v. Jarrard, 157 So. 3d 332, 339 (Fla. 2d DCA 2015)
(holding that a permanent change in income constitutes a substantial
change in circumstances justifying a reduction of alimony); Wiesenfeld v.
Wiesenfeld, 95 So. 3d 959, 960-61 (Fla. 1st DCA 2012) (holding that
receipt of a large inheritance constitutes a substantial change in
circumstances justifying termination of permanent alimony). Accordingly,
Former Husband presented a prima facie case establishing Former Wife’s
reduced or eliminated need for alimony and the court was compelled to
allow Former Husband to complete his case and rule on the remaining
ground for modification.

   Reversed and remanded.

FORST, J., and PERLMAN, SANDRA, Associate Judge, concur.

                            *         *         *

   Not final until disposition of timely filed motion for rehearing.


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