99 Nesbit Street                                                                               33 S. Indiana Avenue
Punta ...
The Florida Legislature recently amended Section 61.08, Florida Statutes - The Alimony Statute.1 Those
  amendments apply ...
not have the need based on her share of equitable distribution.18 The appellate court reversed and remanded for an award
 ...
Nominal alimony has also been awarded where one party’s potential failure to comply with equitable distribution
  could cr...
NO CURRENT ABILITY TO PAY
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NO CURRENT NEED
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NO CURRENT NEED
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NO CURRENT NEED
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MODIFICATION ACTION
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v. Pill, 583 So. 2d 1114 (Fla. 5th DCA 1991).
  12         Roy v. Roy, 522 So. 2d 75, 76 (Fla. 4th DCA 1988).
  13        ...
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Nominal Alimony: The Not-So-New Kid on the Block

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Nominal Alimony: The Not-So-New Kid on the Block

  1. 1. 99 Nesbit Street 33 S. Indiana Avenue Punta Gorda, FL 33950 Englewood, FL 34223 Phone: 941.639.1158 Phone: 941.460.9334 Fax: 941.639.0028 Fax: 941.460.9443 WWW.FARR.COM GUY S. EMERICH DAVID A. HOLMES WILL W. SUNTER JACK O. HACKETT II GARY A. KAHLE FORREST J. BASS CHARLES T. BOYLE ROGER H. MILLER III NATALIE C. LASHWAY DAROL H.M. CARR DOROTHY L. KORSZEN GEORGE T. WILLIAMSON NOMINAL ALIMONY: THE NOT-SO-NEW KID ON THE BLOCK by Charles T. Boyle and Natalie C. Lashway Charles T. Boyle Natalie C. Lashway Personal Injury & Wrongful Death • Litigation • Estate Planning • Real Estate & Title Insurance • Marital & Family • Business • Elder Law • Asset Protection
  2. 2. The Florida Legislature recently amended Section 61.08, Florida Statutes - The Alimony Statute.1 Those amendments apply to all pending cases and all cases filed after July 1, 2010.2 The Alimony Statute does not mention nominal alimony, but case law has authorized such an award since at least 1967.3 Similarly, the concept of reserving jurisdiction to award alimony has been recognized by case law for over 51 years.4 Despite its long-standing existence, courts do not commonly award nominal alimony or reserve jurisdiction on the issue of alimony.5 However, awards of nominal alimony or reservations of jurisdiction are becoming more and more prevalent.6 Given the current economic state and the high unemployment rate throughout Florida, it is extremely important for family law practitioners to consider the issue of nominal alimony or reservation of jurisdiction on the issue of alimony as they prepare their cases. What is nominal alimony? Essentially, nominal alimony is a variant of permanent periodic alimony. In its most traditional form, nominal alimony is awarded when permanent periodic alimony would otherwise be appropriate, but the obligor spouse currently has little or no ability to pay.7 Courts have awarded nominal alimony in varying amounts.8 When a court awards nominal alimony in order to reserve jurisdiction to award alimony in the future, the court’s intent to do so “should be clearly demonstrated in the final judgment.”9 The Fifth District Court of Appeals has instructed courts to expressly reserve jurisdiction on alimony, rather than award nominal alimony for that purpose.10 However, the Fifth District Court of Appeals has since reviewed nominal alimony cases without similar instruction.11 In order for a court to reserve jurisdiction to award alimony, there should be “a likelihood of a change in circumstances in the future that would warrant an award of alimony . . . . In other words, there must presently appear in the record foreseeable circumstances to take place in the future as would at that time support an award of alimony.”12 In Zarycki-Weig, the court upheld a denial of nominal alimony in a gray area marriage where no likelihood of a change in circumstances that would support an award of alimony was presented.13 Other courts dealing with nominal alimony, however, fail to make any mention of a likelihood of a change in circumstances in the future or refer to any facts supporting such a finding.14 The stereotypical scenario for nominal alimony involves a long-term marriage where there is a disparity of income between the spouses, but, at the time of trial, the obligor’s employment or income status has changed so that the obligor does not have the ability to pay and therefore the income disparity does not presently exist. See, for example, Misiak, in which all of these elements were present.15 During the long-term marriage, the wife did not work, but the husband earned substantial income permitting them to enjoy a high standard of living.16 At the time of trial, however, the husband was unemployed.17 The trial court denied alimony because the husband did not have the present ability to pay and the wife did 99 Nesbit Street 33 S. Indiana Avenue Punta Gorda, FL 33950 Englewood, FL 34223 Phone: 941.639.1158 Phone: 941.460.9334 Fax: 941.639.0028 Fax: 941.460.9443 WWW.FARR.COM Personal Injury & Wrongful Death • Litigation • Estate Planning • Real Estate & Title Insurance • Marital & Family • Business • Elder Law • Asset Protection
  3. 3. not have the need based on her share of equitable distribution.18 The appellate court reversed and remanded for an award of nominal alimony.19 Likewise, in Cunningham, all the factors of the traditional nominal alimony case were present.20 The parties were married for 27 years, during which the husband had earned substantially more income than the wife.21 For eight years of the marriage the wife stayed home to raise their children.22 At the time of the final hearing, the husband’s income had decreased, but the husband expected his income would increase in the near future.23 Nonetheless, the husband’s income was still higher than the wife’s at the final hearing.24 The trial court denied nominal alimony finding that the wife had the need, but the husband did not have the ability to pay.25 The appellate court reversed and remanded for nominal alimony to be awarded.26 Notwithstanding the stereotypical situation, nominal alimony has also been awarded in other types of cases. See, for example, Lightcap, in which most of the elements of the traditional situation were present, but the wife did not have a current need for alimony.27 The parties were married for over 30 years during which time the husband earned more than the wife.28 At the end of the marriage, the wife secured a well-paid position and the husband retired.29 Despite having income in excess of the husband’s at the time of trial, the trial court awarded the wife nominal alimony which the appellate court later affirmed.30 In Schlagel, the wife did not have a demonstrated need for alimony at the time of trial because income was imputed to her.31 However, the Second District Court of Appeal found it was an abuse of discretion to fail to award at least nominal alimony.32 The court found that an award of nominal alimony was required in case the needy spouse was “unable to secure employment, after using her best efforts, in the imputed amount.”33 Also, in modification actions seeking the termination of permanent periodic alimony, rather than terminating alimony altogether, courts have reduced alimony to a nominal amount.34 Section 61.14(1)(b), Florida Statutes (2010), permits either the reduction or termination of alimony when an obligee resides with and has a supportive relationship with another person. However, case law demonstrates that courts prefer to reduce, rather than terminate, alimony in this situation.35 In Bridges, the former husband petitioned the trial court for termination of his alimony obligation based upon his former wife’s cohabitation.36 The trial court terminated the former husband’s alimony obligation.37 The First District Court of Appeal modified the judgment to provide the former wife with nominal alimony, ruling that nominal alimony should be awarded to protect the former wife’s future interests in case of a significant change in circumstances.38 In its ruling, the First District noted that “[t]he voluntary contribution of a live-in companion cannot be equated with the legal obligation of a [spouse or] former spouse.”39 99 Nesbit Street 33 S. Indiana Avenue Punta Gorda, FL 33950 Englewood, FL 34223 Phone: 941.639.1158 Phone: 941.460.9334 Fax: 941.639.0028 Fax: 941.460.9443 WWW.FARR.COM Personal Injury & Wrongful Death • Litigation • Estate Planning • Real Estate & Title Insurance • Marital & Family • Business • Elder Law • Asset Protection
  4. 4. Nominal alimony has also been awarded where one party’s potential failure to comply with equitable distribution could create a need and necessitate alimony.40 In Bongiorno, the equitable distribution award provided for the wife to receive income from a closely held corporation.41 The husband controlled all funds flowing through the corporation and had the ability to disrupt the wife’s income stream.42 The trial court, therefore, awarded the wife nominal alimony in case the husband failed to properly distribute income from the corporation.43 When the husband failed to distribute any income to the wife, the trial court found that the wife had a need for alimony and awarded her lump sum alimony.44 On appeal, the First District Court of Appeal affirmed the trial court’s holding the husband in contempt for failing to pay the lump sum alimony.45 Nominal alimony may be increased at a later date. To increase alimony, a party must prove either an increase in need or an increase in ability to pay.46 In England, the former wife sought a modification of alimony that the court had ordered approximately 21 years earlier.47 The court referred to the previously ordered $75 per month alimony as nominal.48 The court found that there was both a substantial increase in need and a substantial increase in ability to pay, thereby supporting a modification of the nominal alimony.49 Unless nominal alimony is awarded or jurisdiction is reserved to award alimony, a party is forever precluded from obtaining an award of alimony after the conclusion of dissolution of marriage proceedings.50 Therefore, it is critical for family law practitioners to consider requesting nominal alimony or reserving jurisdiction on the issue of alimony. The following is a survey of Florida appellate cases involving nominal alimony or reservation of jurisdiction on the alimony issue.51 The charts are divided into subject area and cases are arranged by court and date of decision. 99 Nesbit Street 33 S. Indiana Avenue Punta Gorda, FL 33950 Englewood, FL 34223 Phone: 941.639.1158 Phone: 941.460.9334 Fax: 941.639.0028 Fax: 941.460.9443 WWW.FARR.COM Personal Injury & Wrongful Death • Litigation • Estate Planning • Real Estate & Title Insurance • Marital & Family • Business • Elder Law • Asset Protection
  5. 5. NO CURRENT ABILITY TO PAY LENGTH OF TRIAL COURT APPELLATE CASE FACTS MARRIAGE ACTION COURT ACTION Biskie v. Biskie, 15 years ▪Gray area marriage ▪H awarded almost ▪Reversed denial of 37 So. 3d 970 ▪During the marriage, W all of parties’ PPA (Fla. 1st DCA 2010) sporadically worked outside the significant, but short- ▪Remanded for at least home due, in part, to relocations term, debt NA to be awarded for H’s career ▪No ability to pay ▪W was 59 & owned home-based ▪Denied PPA business ▪H was 48 & was director of human resources ▪H’s income had been reduced by 20%, but he expected it to increase Reed v. Reed Not specified in Not specified in opinion. ▪Denied alimony ▪Amended to reserve 244 So. 2d 449 opinion. ▪Failed to reserve jurisdiction (Fla. 1st DCA 1971) jurisdiction ▪Likelihood of improvement in H’s financial circumstances that would enable him to pay Melton v. Melton, Not specified in ▪1 minor child ▪Denied alimony ▪Affirmed denial of 251 So. 2d 705 opinion. ▪H was 26 & employed by phone ▪Failed to reserve alimony (Fla. 1st DCA 1971) company jurisdiction ▪Reversed failure to ▪W was 23 reserve jurisdiction ▪W graduated from junior college ▪Not unreasonable & worked as substitute teacher, for court to anticipate but had been unemployed for reduction in W’s some time needs based on ▪During DOM proceedings, W her contemplated had applied for job employment Schmidt v. Schmidt, 15 years ▪During marriage, H worked as ▪W entitled to PPA, ▪Reversed reservation 997 So. 2d 451 salesman at $120,000/year but H did not have of jurisdiction for only (Fla. 2d DCA 2008) ▪H was laid off during DOM present ability to pay 2 years proceedings and found similar ▪Awarded rehab ▪Remanded for NA to work at $78,000/year alimony for 2 years be awarded ▪At time of DOM, W owned ▪Reserved retail store & there was jurisdiction on conflicting evidence as to alimony issue for 2 whether she made any income years 99 Nesbit Street 33 S. Indiana Avenue Punta Gorda, FL 33950 Englewood, FL 34223 Phone: 941.639.1158 Phone: 941.460.9334 Fax: 941.639.0028 Fax: 941.460.9443 WWW.FARR.COM Personal Injury & Wrongful Death • Litigation • Estate Planning • Real Estate & Title Insurance • Marital & Family • Business • Elder Law • Asset Protection
  6. 6. NO CURRENT ABILITY TO PAY LENGTH OF TRIAL COURT APPELLATE CASE FACTS MARRIAGE ACTION COURT ACTION Fleck v. Fleck, 11 years ▪Gray area marriage ▪Imputed income to ▪Reversed & remanded 958 So. 2d 1043 ▪H made over $225,000/year W at $20,800/year for court to consider (Fla. 2d DCA 2007) ▪W had no income, but had ▪H was primary NA & either find NA is college degree in marketing residential parent of inappropriate or award their 6 children NA ▪Assigned H almost all substantial marital debt ▪No present ability to pay ▪Denied alimony “at this time” ▪Did not reserve jurisdiction Cunningham v. 27 years ▪Children over 18 ▪W had need, but H ▪Reversed & remanded Cunningham, ▪During marriage, H earned did not have ability for court to award NA 930 So. 2d 719 substantially more than W to pay ▪Factors favor PPA, (Fla. 2d DCA 2006) ▪W stayed home for 8 years of ▪Alimony factors although nominal at marriage did not favor award this time ▪At time of DOM, H’s income of alimony because was less than during most of equitable distribution marriage, but H expected his put them on equal income to increase in near future footing ▪Did not reserve jurisdiction Blanchard v. over 30 years ▪Children over 18 ▪H’s job would either ▪Reversed as to bridge Blanchard, ▪W worked as teacher become profitable the gap alimony & 793 So. 2d 989 ▪H earned significantly more in next few years failure to reserve (Fla. 2d DCA 2001) ▪H changed careers to pursue or he would change jurisdiction on PPA for photography & parties agreed to careers for a more W same, at least initially profitable career ▪Remanded for court to ▪At time of DOM, H was not ▪Awarded bridge the award NA to W earning much income in new gap alimony to H career ▪Denied PPA to W because her income exceeded H’s 99 Nesbit Street 33 S. Indiana Avenue Punta Gorda, FL 33950 Englewood, FL 34223 Phone: 941.639.1158 Phone: 941.460.9334 Fax: 941.639.0028 Fax: 941.460.9443 WWW.FARR.COM Personal Injury & Wrongful Death • Litigation • Estate Planning • Real Estate & Title Insurance • Marital & Family • Business • Elder Law • Asset Protection
  7. 7. NO CURRENT ABILITY TO PAY LENGTH OF TRIAL COURT APPELLATE CASE FACTS MARRIAGE ACTION COURT ACTION Stock v. Stock, Not specified in ▪Minor children ▪W was entitled to ▪Affirmed reservation 693 So. 2d 1080 opinion. ▪H earned 61% of parties’ alimony of jurisdiction as (Fla. 2d DCA 1997) combined monthly income ▪H’s ability to pay there was a likelihood ▪Lived beyond their means alimony limited of change in because of child circumstances in future support payments that would permit H to ▪Reserved pay alimony jurisdiction to award PPA Gildea v. Gildea, 21 years ▪2 minor children & 1 child over ▪Awarded PPA to W ▪Amount of PPA 593 So. 2d 1212 18 exceeded H’s ability (Fla. 2d DCA 1992) ▪During marriage, H made to pay significantly more than W ▪Reversed & remanded ▪H was terminated from job for PPA or NA to be during DOM proceedings, but awarded commensurate seeking reemployment with H’s ability and to reserve jurisdiction Purrinos v. Purrinos, 15 years ▪3 minor children ▪Denied alimony ▪Reversed & remanded 34 So. 3d 244 ▪During marriage, H earned for NA to be awarded (Fla. 3d DCA 2010) substantially more ▪At time of final hearing, H was temporarily & involuntarily unemployed, but expected reemployment Gulbrandson v. 23 years ▪Children over 18 ▪H’s income likely ▪W’s need not Gulbrandson, ▪During most of marriage, W to change based on established 22 So. 3d 640 cared for children & home either success or ▪Reversed & remanded (Fla. 3d DCA 2009) ▪At time of DOM, W was not failure of invention for court to award employed & did not have health & company NA to accommodate insurance ▪Awarded PPA to change in H’s income ▪W had back & neck issues W in lump sum of & change in W’s need ▪H in good health $237,000 (due to increased need ▪H worked as engineer & because of health inventor insurance) 99 Nesbit Street 33 S. Indiana Avenue Punta Gorda, FL 33950 Englewood, FL 34223 Phone: 941.639.1158 Phone: 941.460.9334 Fax: 941.639.0028 Fax: 941.460.9443 WWW.FARR.COM Personal Injury & Wrongful Death • Litigation • Estate Planning • Real Estate & Title Insurance • Marital & Family • Business • Elder Law • Asset Protection
  8. 8. NO CURRENT ABILITY TO PAY LENGTH OF TRIAL COURT APPELLATE CASE FACTS MARRIAGE ACTION COURT ACTION Squindo v. Squindo, over 25 years ▪Children over 18 ▪H had ability to get ▪Evidence did not 943 So. 2d 232 ▪During marriage, H worked for financial assistance support finding that (Fla. 3d DCA 2006) family company in Switzerland from family H has ability to making $120,000/year ▪Awarded PPA pay or that H was ▪Parties lived lavish lifestyle until underemployed they moved to FL ▪Ability of H to get ▪At time of DOM, H worked at financial assistance the University of Florida making from family was $33,000/year irrelevant ▪W did not work ▪Reversed PPA & remanded for consideration of NA or reservation of jurisdiction in case of significant change in circumstances in future Wing v. Wing, 20 years ▪At time of DOM, H’s income ▪Denied PPA ▪W entitled to PPA 429 So. 2d 782 was reduced ▪Reduction in H’s (Fla. 3d DCA 1983) income was temporary ▪Reversed denial of alimony ▪Remanded for NA to be awarded Zarycki-Weig v. Weig, 15 years, ▪Gray area marriage ▪W may have a need, ▪Affirmed denial of 25 So. 3d 573 including 4 years ▪H was lawyer making $78,000/ but H did not have alimony (Fla. 4th DCA 2009) of separation year ability ▪No abuse of discretion ▪W worked intermittently during ▪Denied PPA in denying NA because marriage, most recently as store ▪Denied NA this was a gray area manager making $38,000/year because there was marriage & there no evidence of was no evidence of likelihood of change likelihood of change that would support in circumstances that award of alimony would support award of alimony Salazar v. Salazar, 31 years ▪1 minor child ▪W had need, but H ▪Reversed & remanded 976 So. 2d 1155 ▪H worked 40+ hours/week for did not have ability to award PPA or NA (Fla. 4th DCA 2008) $15/hour ▪Imputed income ▪W worked 25 hours/week for to W $10/hour ▪H still had $2,019 ▪W had worked full-time in past more monthly and there was no reason she income than W could not do so 99 Nesbit Street 33 S. Indiana Avenue Punta Gorda, FL 33950 Englewood, FL 34223 Phone: 941.639.1158 Phone: 941.460.9334 Fax: 941.639.0028 Fax: 941.460.9443 WWW.FARR.COM Personal Injury & Wrongful Death • Litigation • Estate Planning • Real Estate & Title Insurance • Marital & Family • Business • Elder Law • Asset Protection
  9. 9. NO CURRENT ABILITY TO PAY LENGTH OF TRIAL COURT APPELLATE CASE FACTS MARRIAGE ACTION COURT ACTION Fusco v. Fusco, Not specified in Not specified in opinion. ▪Imputed income ▪Reversed PPA & 616 So. 2d 86 opinion. to H remanded to award (Fla. 4th DCA 1993) ▪Awarded PPA to NA to protect FW’s W based on H’s interests in case H’s imputed income income improved Boyle v. Boyle, 25 years ▪Children over 18 ▪W entitled to PPA ▪Reversed & remanded 30 So. 3d 665 ▪During marriage, H worked at ▪Awarded NA to because it was error (Fla. 5th DCA 2010) Lowe’s W based on H’s to not consider assets ▪During DOM proceedings, H inability to pay awarded to H in lost his job equitable distribution ▪During most of marriage, W in determining ability stayed home with children to pay ▪After separation, W had lower- level employment making $10- 11/hour Marshall v. Marshall, 37 years ▪H was disabled & his retirement ▪Awarded NA to W ▪Affirmed NA 953 So. 2d 23 was his sole income in case H’s ability to (Fla. 5th DCA 2007) ▪W was able bodied, had pay changed in the stable income & had ready future employability ▪Parties’ incomes were relatively the same, no great disparity in parties’ financial circumstances Misiak v. Misiak, long-term ▪During marriage, W did not ▪Denied NA ▪Reversed & remanded 898 So. 2d 1159 work & H earned substantial ▪Although alimony for NA to be awarded (Fla. 5th DCA 2005) income would normally be to W ▪High standard of living awarded based on ▪H unemployed after leaving job the length of the due to medical reasons marriage, lifestyle ▪H was able to go back to work, & H’s earning but had not secured employment potential, H did not yet have ability & W did ▪At time of appeal, H was 58 not have need ▪W’s needs met by equitable distribution Felipe v. Felipe, 18 years ▪During marriage, H was primary ▪Denied PPA without ▪Reversed & remanded 669 So. 2d 357 provider explanation for at least NA to be (Fla. 5th DCA 1996) ▪During DOM proceedings, H’s awarded income decreased 99 Nesbit Street 33 S. Indiana Avenue Punta Gorda, FL 33950 Englewood, FL 34223 Phone: 941.639.1158 Phone: 941.460.9334 Fax: 941.639.0028 Fax: 941.460.9443 WWW.FARR.COM Personal Injury & Wrongful Death • Litigation • Estate Planning • Real Estate & Title Insurance • Marital & Family • Business • Elder Law • Asset Protection
  10. 10. NO CURRENT NEED LENGTH OF TRIAL COURT APPELLATE CASE FACTS MARRIAGE ACTION COURT ACTION Herman v. Herman, ~4 years ▪W diagnosed with kidney ▪Reserved ▪Reversed indefinite 889 So. 2d 128 disease during marriage jurisdiction reservation of (Fla. 1st DCA 2004) ▪H & W were young indefinitely jurisdiction because W ▪Likely that W did not have claim for would have medical PPA problems in future & ▪Remanded to would have need determine whether it is necessary to reserve jurisdiction, &, if so, to establish a reasonable time limit Margarowicz 35 years ▪Children over 18 ▪Denied PPA ▪Affirmed denial of v.Margarowicz, ▪W was 53 & mildly diabetic, but ▪Failed to reserve PPA without reservation 429 So. 2d 376 it was controlled by medication jurisdiction on of jurisdiction (Fla. 1st DCA 1983) & diet alimony issue ▪No abuse of discretion ▪W worked as a nurse to not award PPA as W ▪H had net monthly income of had a stable job, got the about $600 more than W marital home without any mortgage, & did not demonstrate need and ability to pay ▪No abuse of discretion to not reserve jurisdiction as the circumstances of the case did not show that reservation was required Kirby v. Kirby, Not specified in ▪2 minor children ▪W did not have ▪No abuse of discretion 111 So. 2d 299 opinion. ▪W was teacher need in failing to reserve (Fla. 1st DCA 1959) ▪H was Army sergeant ▪Failed to award jurisdiction alimony or reserve jurisdiction Perkovich v. ~28 years ▪H made $450,000/year ▪Awarded PPA to ▪Reversed PPA to the Humphrey-Perkovich, ▪W made $320,000/year W based on their extent that it relied on 2 So. 3d 348 ▪Part of W’s income was from disparate incomes the disparate incomes (Fla. 2d DCA 2008) performing surgery & possible impact of the parties ▪W had medical condition that of her medical ▪Remanded for court could affect her ability to do condition on her to consider NA in case surgery future earnings W’s income decreased in future 99 Nesbit Street 33 S. Indiana Avenue Punta Gorda, FL 33950 Englewood, FL 34223 Phone: 941.639.1158 Phone: 941.460.9334 Fax: 941.639.0028 Fax: 941.460.9443 WWW.FARR.COM Personal Injury & Wrongful Death • Litigation • Estate Planning • Real Estate & Title Insurance • Marital & Family • Business • Elder Law • Asset Protection
  11. 11. NO CURRENT NEED LENGTH OF TRIAL COURT APPELLATE CASE FACTS MARRIAGE ACTION COURT ACTION Schlagel v. Schlagel, 21 years ▪H made $69,500/year ▪Imputed income to ▪Reversed denial of 973 So. 2d 672 ▪Reasonably modest lifestyle W at $40,000/year PPA (Fla. 2d DCA 2008) ▪During marriage, W took care ▪Denied PPA ▪Remanded for NA of child, but had worked outside to be awarded in case the home W is unable to secure ▪W’s highest income was employment, after $26,683/year about 10 years using her best efforts, before DOM in the amount imputed ▪W was Turkish, but obtained her undergraduate & law degrees in the US ▪W unsuccessfully took the Bar Exam 4 times Nourse v. Nourse, 23 years ▪H worked for the state ▪Awarded bridge the ▪Reversed & remanded 948 So. 2d 903 ▪W was unemployed, although gap alimony based for at least NA to be (Fla. 2d DCA 2007) previously worked from home on finding that W awarded based on ▪W was permanently disabled would be able to historic incomes of because she was bipolar regain some kind of the parties, length of ▪W’s condition could improve employment once the marriage, & W’s with medication & lifestyle stress of DOM was potential future needs changes, but she would only be over ▪Finding that W able to secure menial labor would be able to seek employment after DOM was not supported by the evidence Italiano v. Italiano, ~18 years ▪During the entire marriage, H ▪Awarded NA ▪Reversed NA 873 So. 2d 558 was CEO & COO of company & because W might ▪Error to award NA (Fla. 2d DCA 2004) W did not work have need in the because of the unusual ▪Parties stipulated to W’s future circumstances of the entitlement to PPA & W’s present case lack of need ▪Determination of need & ability must be made at the time of final hearing & court cannot speculate as to what might happen in the future Holdstein v. Holdstein, 17 years ▪During marriage, W was ▪Awarded PPA to H ▪Reversed & remanded 884 So. 2d 87 primary provider & earned for clarification of H’s (Fla. 2d DCA 2004) substantially more than H need ▪H worked mostly in retail sales ▪If need but no ability during marriage demonstrated, NA ▪H was bipolar & recovering could still be awarded alcoholic on remand 99 Nesbit Street 33 S. Indiana Avenue Punta Gorda, FL 33950 Englewood, FL 34223 Phone: 941.639.1158 Phone: 941.460.9334 Fax: 941.639.0028 Fax: 941.460.9443 WWW.FARR.COM Personal Injury & Wrongful Death • Litigation • Estate Planning • Real Estate & Title Insurance • Marital & Family • Business • Elder Law • Asset Protection
  12. 12. NO CURRENT NEED LENGTH OF TRIAL COURT APPELLATE CASE FACTS MARRIAGE ACTION COURT ACTION Lightcap v. Lightcap, over 30 years ▪During most of marriage, H was ▪Awarded NA to W ▪Affirmed NA 14 So. 3d 259 employed in highly skilled & ▪H had ability to ▪NA appropriate in (Fla. 3d DCA 2009) well paid job work, but chose not case H realized his full ▪During marriage, W worked in to earning potential clerical jobs ▪H had ability to earn ▪At the very end of the marriage, $40,000 to $200,000 W secured a well paying job & H per year retired ▪At time of DOM, W earned more than H Esteva v. Rodriguez, 16 years ▪Child over 18 ▪Denied NA ▪Reversed denial of 913 So. 2d 684 ▪H worked as salesman & ▪Expressed concern alimony & remanded (Fla. 3d DCA 2005) developed businesses about the future for court to determine ▪W worked as teacher during of W’s medical whether NA should be marriage & at time of DOM condition granted ▪W had fibromyalgia, but ▪Unclear whether trial continued to work court considered NA & ▪H was 7-9 years younger than W decided not to award it (decision is inconsistent) or thought it could not award NA Castillo v. Castillo, less than 5 years ▪Minor children ▪Awarded NA to W ▪Reversed NA 626 So. 2d 1035 ▪During most of marriage, H in case H’s income because 1) short-term (Fla. 3d DCA 1993) worked as manager at $30,000- increased marriage; 2) W was $77,000/year 37, self-supporting, ▪H was laid off & reemployed at & did not have any $12,000/year disability; 3) neither ▪At time of DOM, W made party had significant $21,000/year nonmarital financial resources; & 4) W did not sacrifice her career or educational opportunities Schwartz v. Schwartz, Not specified in ▪W’s income just about equaled ▪Awarded PPA to W ▪Reversed PPA 450 So. 2d 277 opinion. H’s & remanded for (Fla. 3d DCA 1984) ▪W’s earning capacity and net reservation of worth exceeded H’s jurisdiction to award alimony to either party in future 99 Nesbit Street 33 S. Indiana Avenue Punta Gorda, FL 33950 Englewood, FL 34223 Phone: 941.639.1158 Phone: 941.460.9334 Fax: 941.639.0028 Fax: 941.460.9443 WWW.FARR.COM Personal Injury & Wrongful Death • Litigation • Estate Planning • Real Estate & Title Insurance • Marital & Family • Business • Elder Law • Asset Protection
  13. 13. NO CURRENT NEED LENGTH OF TRIAL COURT APPELLATE CASE FACTS MARRIAGE ACTION COURT ACTION Weinman v. Weinman, 25 years ▪2 minor children ▪Awarded W ▪Modified judgment 310 So. 2d 442 ▪At time of DOM, H had net possession of home to reserve jurisdiction (Fla. 3d DCA 1975) income of about twice as much until minor children on alimony issue as W reached majority based on termination (about 2 years from of possession of home date of DOM) or W in at most 2 years & remarried, whichever that circumstances occurred earlier obviating W’s current ▪Denied PPA need could change ▪W had no current need based on having possession of home & her current income Dings v. Dings, Not specified in Not specified in opinion. ▪Found that W was ▪Error not to reserve 161 So. 2d 227 opinion. self-supporting & jurisdiction to award (Fla. 3d DCA 1964) had no need alimony in future if ▪Denied W alimony alimony was applied for & properly allowable ▪Failure to award alimony or reserve jurisdiction would preclude W from ever getting alimony in case of a change of circumstances 99 Nesbit Street 33 S. Indiana Avenue Punta Gorda, FL 33950 Englewood, FL 34223 Phone: 941.639.1158 Phone: 941.460.9334 Fax: 941.639.0028 Fax: 941.460.9443 WWW.FARR.COM Personal Injury & Wrongful Death • Litigation • Estate Planning • Real Estate & Title Insurance • Marital & Family • Business • Elder Law • Asset Protection
  14. 14. NO CURRENT NEED LENGTH OF TRIAL COURT APPELLATE CASE FACTS MARRIAGE ACTION COURT ACTION Schiff v. Schiff, Not specified in ▪Minor child ▪Denied alimony ▪Reversed denial 123 So. 2d 295 opinion. ▪W was able to earn money by because W was able of alimony without (Fla. 3d DCA 1960) giving piano lessons to make money reserving jurisdiction giving piano lessons ▪Trial court should have either awarded alimony to W or, if it found W was able to provide for her livelihood, should have reserved jurisdiction ▪Without reserving jurisdiction, court cut off her right to apply to the court for alimony in the future in the event of a change in circumstances rendering her unable to teach music Evans v. Evans, 23 years ▪1 minor child, 3 children over 18 ▪Failed to reserve ▪Reversed & remanded 337 So. 2d 998 ▪W was school teacher earning jurisdiction on for reservation of (Fla. 4th DCA 1976) $9,500/year alimony issue jurisdiction on alimony ▪H earned $14,040/year issue ▪Both parties were in their early ▪W did not have a 50s present need, but likelihood of need in the future based on termination of exclusive use and possession of marital home, W’s age & potential health problems, & W’s ability to compete in job market Ellis v. Ellis, 39 years ▪H was police officer & retired ▪Awarded NA to W ▪Affirmed NA award 699 So. 2d 280 17 years before DOM ▪Distributed the ▪NA was appropriate (Fla. 5th DCA 1997) ▪Parties started a corporation & stock in corporation in case corporation’s had retail stores to W profitability decreased ▪Corporation ran souvenir stores which had been relocated, closed, & had competitors ▪W was 57 & had medical issues ▪H was 60 & was manic depressant 99 Nesbit Street 33 S. Indiana Avenue Punta Gorda, FL 33950 Englewood, FL 34223 Phone: 941.639.1158 Phone: 941.460.9334 Fax: 941.639.0028 Fax: 941.460.9443 WWW.FARR.COM Personal Injury & Wrongful Death • Litigation • Estate Planning • Real Estate & Title Insurance • Marital & Family • Business • Elder Law • Asset Protection
  15. 15. NO CURRENT NEED LENGTH OF TRIAL COURT APPELLATE CASE FACTS MARRIAGE ACTION COURT ACTION Davis v. Davis, ~35 years ▪H had 9th grade education ▪Imputed income ▪Reversed imputation 691 So. 2d 626 ▪H retired from naval career to H of income & PPA & (Fla. 5th DCA 1997) ▪H retired from tugboat career ▪Awarded PPA to remanded for court to ▪H was 55 & had arthritis W based on H’s consider NA in case ▪W never worked outside home imputed income W’s medical expenses ▪W had cancer previously & had increased (given her medical issues history of cancer ▪W would not be able to get and inability to get health insurance insurance) ▪Finding of H’s income potential was unsupported by the evidence ▪No evidence supporting W’s need for alimony Moore v. Moore, 31 years ▪Children over 18 ▪Awarded NA to H ▪Affirmed NA to H 401 So. 2d 841 ▪During marriage, H worked as ▪Not error to award H (Fla. 5th DCA 1981) electrician NA based on length of ▪W didn’t work until last 9 years marriage, H paying for of marriage, after H paid for W & children to go to her to go to college & get her college, & foregoing master’s saving for himself ▪For last 9 years of marriage, ▪Evidence of ability, W worked as instructor at but not of need community college ▪Evidence supported ▪W was 50 & in good health that H may have need ▪H was 53, was injured on the in future if he is no job, & may have need for future longer able to work as support due to his deteriorating electrician health 99 Nesbit Street 33 S. Indiana Avenue Punta Gorda, FL 33950 Englewood, FL 34223 Phone: 941.639.1158 Phone: 941.460.9334 Fax: 941.639.0028 Fax: 941.460.9443 WWW.FARR.COM Personal Injury & Wrongful Death • Litigation • Estate Planning • Real Estate & Title Insurance • Marital & Family • Business • Elder Law • Asset Protection
  16. 16. MODIFICATION ACTION TRIAL COURT CASE FACTS APPELLATE COURT ACTION ACTION Castleberry v. ▪At time of modification, FW ▪Reduced alimony, ▪Reversed & remanded for alimony to be Castleberry, earned more than FH but still more than reduced to NA 29 So. 3d 1207 NA (Fla. 1st DCA 2010) Bridges v. Bridges, ▪FW cohabitated with man & ▪Terminated alimony ▪Judgment modified to award FW NA 842 So. 2d 983 they contributed to the financial ▪NA should be awarded to protect FW’s (Fla. 1st DCA 2003) support of each other future interests in case of a significant ▪FW and man exchanged vows & change in circumstances rings in a ceremony, but were not ▪“The voluntary contribution of a live-in legally married companion cannot be equated with the legal obligation of a [spouse or] former spouse” Brewer v. Brewer, ▪FH lost job as attorney, was ▪Terminated alimony ▪Reversed termination of alimony & 898 So. 2d 986 unable to find comparable remanded for NA to be awarded (Fla. 2d DCA 2005) employment, & opened office as ▪FH’s income could increase in future a sole practitioner ▪Need to preserve FW’s future rights Reno v. Reno, ▪FW cohabitated with & was ▪Terminated alimony ▪Reversed termination of alimony & 884 So. 2d 462 financially supported by fiancé remanded for NA to be awarded (Fla. 4th DCA 2004) ▪FH didn’t request termination, ▪Evidence supported finding that almost all only requested reduction of FW’s living expenses were paid by her fiancé & that may support termination of alimony, but FH didn’t request that ▪FW’s needs may change in future England v. England, ▪18 year marriage ▪$75 per month PPA ▪Reversed denial of increase in PPA 520 So. 2d 699 ▪FW was 65.5, was supported was awarded to W in ▪Remanded for PPA to be increased (Fla. 4th DCA 1988) by her son for years, & was DOM in 1967 ▪To increase alimony, need to prove either unable to support herself on her ▪FW sought increase in need or increase in ability $345 monthly income of Social modification to ▪Here, there was both a substantial Security, government subsidy for increase PPA increase in ability & a substantial increase son, & alimony ▪Denied increase in in need ▪FH was 63 & had income of PPA $1,807 per month Olsen v. Olsen, ▪FH retired due to medical issues ▪Reduced PPA to ▪Reversed & remanded to redetermine 964 So. 2d 798 ▪FW was working as hotel desk $200/month FW’s income & expenses & reconsider (Fla. 5th DCA 2007) clerk reduction or termination of alimony ▪Parties in their mid - late 60s ▪FW’s income & expenses appeared to be ▪Both parties testified to having calculated incorrectly medical issues ▪If FW is not in peril of poverty, then trial court may consider reducing alimony to NA 99 Nesbit Street 33 S. Indiana Avenue Punta Gorda, FL 33950 Englewood, FL 34223 Phone: 941.639.1158 Phone: 941.460.9334 Fax: 941.639.0028 Fax: 941.460.9443 WWW.FARR.COM Personal Injury & Wrongful Death • Litigation • Estate Planning • Real Estate & Title Insurance • Marital & Family • Business • Elder Law • Asset Protection
  17. 17. MODIFICATION ACTION TRIAL COURT CASE FACTS APPELLATE COURT ACTION ACTION Pill v. Pill, ▪FW cohabitated with boyfriend ▪Reduced alimony by ▪Reversed & remanded for NA to be 583 So. 2d 1114 who paid rent & did yard work & value of boyfriend’s awarded for so long as FW does not have (Fla. 5th DCA 1991) maintenance yard work & a need maintenance, but ▪FW’s income exceeds her needs failed to consider rent money paid to FW by boyfriend LIKELIHOOD OF FAILURE TO COMPLY WITH EQUITABLE DISTRIBUTION APPELLATE CASE FACTS TRIAL COURT ACTION COURT ACTION Bongiorno v. Yule, ▪At time of DOM, W did ▪NA awarded because there was a possibility that ▪Affirmed order 920 So. 2d 1209 not have a need because alimony would be necessary in the future of contempt (Fla. 1st DCA 2006) she would receive income ▪In modification action after H failed to pay W any from marital ownership in money from corporate income, W was awarded corporation alimony ▪H was in charge of all funds ▪W had the need for alimony as a result of H’s flowing thru the corporation & failure to comply with equitable distribution had the ability to disrupt W’s ▪H failed to pay alimony and was found in income stream contempt (Endnotes) 1 2010 Fla. Laws 2010-199; 2010 Fla. Sess. Law Serv. 2010-199. 2 Id. 3 Section 61.08(1), Florida Statutes (2010) indicates that “the court may grant alimony to either party which alimony may be bridge-the-gap, rehabilitative, durational, or permanent in nature…”; DuVernoy v. DuVernoy, 202 So. 2d 620 (Fla. 1st DCA 1967). 4 Kirby v. Kirby, 111 So. 2d 299 (Fla. 1st DCA 1959). 5 After an informal review, the authors found 61 Florida appellate cases that referenced nominal alimony or the reservation of jurisdiction on alimony. 6 After an informal review, the authors found 32 Florida appellate cases that referenced nominal alimony or reservation of jurisdiction on alimony from 2000-2010, versus 29 cases from 1959-2000. 7 See, e.g., Cunningham v. Cunningham, 930 So. 2d 719 (Fla. 2d DCA 2006) (where husband earned substantially more than wife during the marriage and wife stayed home with the children for 8 years of marriage, but husband’s current income was less than during most of marriage, court found that nominal alimony was appropriate). 8 See, Oluwek v. Oluwek, 2 So. 3d 1038 (Fla. 2d DCA 2009) ($100/month); Zohourian v. Zohourian, 829 So. 2d 256 (Fla. 3d DCA 2002) ($10/month); England v. England, 520 So. 2d 699 (Fla. 4th DCA 1988) ($75/month); Hague v. Hague, 382 So. 2d 852 (Fla. 3d DCA 1980) ($40/month). 9 Gosline v. Gosline, 435 So. 2d 413, 414 (Fla. 5th DCA 1983). 10 O’Neal v. O’Neal, 407 So. 2d 1011 (Fla. 5th DCA 1981). 11 See, e.g., Boyle v. Boyle, 30 So. 3d 665 (Fla. 5th DCA 2010); Olsen v. Olsen, 964 So. 2d 798 (Fla. 5th DCA 2007); Marshall v. Marshall, 953 So. 2d 23 (Fla. 5th DCA 2007); Misiak v. Misiak, 898 So. 2d 1159 (Fla. 5th DCA 2005); Ellis v. Ellis, 699 So. 2d 280 (Fla. 5th DCA 1997); Davis v. Davis, 691 So. 2d 626 (Fla. 5th DCA 1997); Felipe v. Felipe, 669 So. 2d 357 (Fla. 5th DCA 1996); Pill 99 Nesbit Street 33 S. Indiana Avenue Punta Gorda, FL 33950 Englewood, FL 34223 Phone: 941.639.1158 Phone: 941.460.9334 Fax: 941.639.0028 Fax: 941.460.9443 WWW.FARR.COM Personal Injury & Wrongful Death • Litigation • Estate Planning • Real Estate & Title Insurance • Marital & Family • Business • Elder Law • Asset Protection
  18. 18. v. Pill, 583 So. 2d 1114 (Fla. 5th DCA 1991). 12 Roy v. Roy, 522 So. 2d 75, 76 (Fla. 4th DCA 1988). 13 Zarycki-Weig v. Weig, 25 So. 3d 573 (Fla. 4th DCA 2009). 14 See, Lightcap v. Lightcap, 14 So. 3d 259 (Fla. 3d DCA 2009); Marshall, 953 So. 2d 23; Squindo v. Squindo, 943 So. 2d 232 (Fla. 3d DCA 2006); Misiak, 898 So. 2d 1159; Zohourian, 829 So. 2d 256; Felipe, 669 So. 2d 357; Schwartz v. Schwartz, 450 So. 2d 277 (Fla. 3d DCA 1984). 15 Misiak, 898 So. 2d 1159. 16 Id. at 1159. 17 Id. at 1159 – 1160. 18 Id. at 1160. 19 Id. at 1160. 20 Cunningham, 930 So. 2d 719. 21 Id. at 719. 22 Id. at 719. 23 Id. at 719, 720. 24 Id. at 719. 25 Id. at 719, 720. 26 Id. at 721. 27 Lightcap, 14 So. 3d 259. 28 Id. at 260. 29 Id. at 259. 30 Id. at 259, 260. 31 Schlagel v. Schlagel, 973 So. 2d 672 (Fla. 2d DCA 2008). 32 Id. at 676. 33 Id. at 676-677. 34 See, e.g., Castleberry v. Castleberry, 29 So. 3d 1207 (Fla. 1st DCA 2010); Olsen, 964 So. 2d 798; Brewer v. Brewer, 898 So.2d 986 (Fla. 2d DCA 2005); Reno v. Reno, 884 So. 2d 462 (Fla. 4th DCA 2004); Bridges v. Bridges, 842 So. 2d 983 (Fla. 1st DCA 2003); Pill, 583 So. 2d 1114. 35 See, Brewer, 898 So. 2d 986; Reno, 884 So. 2d 462; Bridges, 842 So. 2d 983; Pill, 583 So. 2d 1114. 36 Bridges, 842 So. 2d at 984. 37 Id. at 983. 38 Id. at 984. 39 Id. at 984 (quoting Long v. Long, 622 So. 2d 622, 624 (Fla. 2d DCA 1993)). 40 Bongiorno v. Yule, 920 So. 2d 1209 (Fla. 1st DCA 2006). 41 Id. at 1210. 42 Id. at 1210. 43 Id. at 1210. 44 Id. at 1210. 45 Id. at 1209-1210. 46 England, 520 So. 2d 699. 47 Id. 48 Id. at 702. 49 Id. at 701. 50 DuVernoy, 202 So. 2d 620; Dings v. Dings, 161 So. 2d 227 (Fla. 3d DCA 1964); Schiff v. Schiff, 123 So. 2d 295 (Fla. 3d DCA 1960); Weiss v. Weiss, 118 So. 2d 833 (Fla. 3d DCA 1960). 51 For purpose of brevity, nominal alimony is referred to as “NA,” permanent periodic alimony is referred to as “PPA,” husband is referred to as “H,” former husband is referred to as “FH,” wife is referred to as “W,” former wife is referred to as “FW,” and dissolution of marriage is referred to as “DOM.” 99 Nesbit Street 33 S. Indiana Avenue Punta Gorda, FL 33950 Englewood, FL 34223 Phone: 941.639.1158 Phone: 941.460.9334 Fax: 941.639.0028 Fax: 941.460.9443 WWW.FARR.COM Personal Injury & Wrongful Death • Litigation • Estate Planning • Real Estate & Title Insurance • Marital & Family • Business • Elder Law • Asset Protection

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