Appellate Court Trends in Permanent Alimony for “Gray Area” Divorces: 1997-2007
In 1980, the Florida Supreme Court defined the purpose of permanent alimony: “to provide the needs and necessities of life to a former spouse as they have been established by the marriage of the parties.”1 This purpose is achieved by determining the need of one spouse for alimony and the ability of the other spouse to pay.2 In 1978, F.S. §61.08(2) established seven specific factors to be considered by courts when determining a proper award of alimony.3 It is difficult to determine whether the factors can be ranked by level of significance. A review of case law makes clear that permanent alimony decisions are reached as a result of a court’s overall impression of the facts of each case and, based on those facts, its determination of equity and fairness.
Canakaris v. Canakaris, 380 So. 2d 1197 (Fla. 1980), has been cited in over 2,000 cases and journals since 1980. While the factors courts consider when making decisions regarding permanent alimony have not changed since the Florida Supreme Court’s decision in Canakaris, the emphasis on these factors has. In addition to the factors included in F.S. §61.08, courts look to other factors, such as minor children of the marriage, agreements made during the marriage for one spouse to stay home with children, and whether a spouse’s career has been limited by the marriage. Although it is not difficult to identify the factors that courts consider, it is still a challenge to predict how a court will emphasize a particular factor.
Ten years ago, we examined appellate court trends in permanent alimony in gray area marriages.4 This article will revisit the subject and examine developments in the case law during the past 10 years. So that this article may be used as a continuation of our previous article on this subject, we have again organized it by the factors appellate courts consider when affirming or reversing permanent alimony awards.5 These analyses are offered to the reader not as absolutes, but as a means by which to organize arguments either for or against an award of permanent alimony. This article only discusses cases and trends emerging since 1997 and only addresses initial awards of permanent alimony, not modification proceedings.
Contributions to the Marriage
One of the enumerated factors in F.S. §61.08 is the contribution, or lack thereof, of each party to the marriage.6 In gray area marriages, this factor can sometimes tip the scales for or against permanent alimony. For instance, in Jessee v. Jessee, 961 So. 2d 1118 (Fla. 2d DCA 2007), the Second District affirmed a trial court’s denial of permanent alimony to a husband who earned less than his wife based on the fact that he had not been required to abandon his career in order to support hers.7 In Krafchuk v. Krafchuk, 804 So. 2d 376 (Fla. 4th DCA 2001), the Fourth District affirmed the trial court’s denial of permanent alimony to a husband who had been injured in a car accident and moved in with his parents, leaving the wife alone to care for the children and the marital home.8 In Escuerdo v. Escuerdo, 739 So. 2d 688 (Fla. 5th DCA 1999), the Fifth District affirmed an award of permanent alimony to a wife whose husband was abusive during the marriage and did not provide financial support during the marriage.9
Length of Marriage
Ten years ago, gray area marriages were defined as marriages lasting between five and 20 years.10 Now, that seems to have morphed to between six and 16 years, with both the lower and upper limits varying slightly in each district court.11 In the First District, the gray area extends up to 16 years.12 In the Second District, a five-year marriage is considered a short-term marriage.13 The Second District has not established a bright line upper limit of a gray area marriage. In Hann v. Hann, 629 So. 2d 918 (Fla. 2d DCA 1993), the Second District stated that a 15-year marriage was in the gray area.14 However, in Cardillo v. Cardillo, 707 So. 2d 350 (Fla. 2d DCA 1998), the Second District stated that 14 years was a long-term marriage.15 Subsequent to Cardillo, the Second District decided Knoff v. Knoff, 751 So. 2d 167 (Fla. 2d DCA 2000), in which the court stated that the characterization of a 14-year marriage as long term in Cardillo did not mean that all 14-year marriages should be considered long term.16 In the Third District, a 15 and one-half-year marriage is considered to be a gray area marriage.17 In the Fourth District, the upper limit of the gray area is 16 years.18 In the Fifth District, the lower limit of the gray area is six years19 and the upper limit is 16 years.20 Although these limits are certainly not meant to be dogmatically applied, it appears that currently any marriage under six years is short term and any marriage over 16 years is long term. However, be aware that courts have used the fact that a marriage is in the gray area to support both denials and awards of permanent alimony.
Permanent alimony may be denied at both ends of the gray area. In Layeni v. Layeni, 843 So. 2d 295 (Fla. 5th DCA 2003), the Fifth District affirmed the denial of permanent alimony to a wife in a seven-year marriage based, in part, on the length of the marriage.21 On the high end of the gray area, permanent alimony may also be denied based on the fact that the marriage was not long term. In Williams v. Williams, 904 So. 2d 488 (Fla. 3d DCA 2005), the Third District found that permanent alimony was properly denied in a 15 and one-half-year marriage based on the relative youth of the parties and the length of the marriage.22 The court’s decision rested largely on the youth of the parties, and while this marriage was at the high end of the gray area, that fact alone did not sway the court to award permanent alimony. The Fourth District reached this same conclusion in Peterson v. Peterson, 929 So. 2d 38 (Fla. 4th DCA 2006), when the court denied permanent alimony in a 14-year marriage based on the same facts, length of the marriage and the relative youth of the parties.23 Importantly, the overriding factor in Peterson was the fact that the combination of alimony and child support encompassed 70 percent of the husband’s income, but the court also focused on the fact that this gray area marriage did not justify a permanent alimony award even though the marriage was at the upper end of the gray area.24
With different fact situations, other courts have found the length of the marriage persuasive when awarding permanent alimony in gray area marriages. The First District did so in Burrill v. Burrill, 701 So. 2d 354 (Fla. 1st DCA 1997), when it awarded permanent alimony in a 16-year marriage based in part on the fact that the marriage was in the upper end of the gray area.25 The wife in Burrill had also stayed home with the children during the marriage and required a permanent alimony award to maintain the marital standard of living.26 The Third District awarded permanent alimony in a 14-year marriage in Levy v. Levy, 862 So. 2d 48 (Fla. 3d DCA 2003).27 In Levy, the husband and his mother worked together to conceal assets from the wife, which influenced the court in awarding the wife permanent alimony.28 However, in making its award, the court mentioned the length of the marriage as a reason to do so.29
The length of the marriage can justify either an award or denial of permanent alimony. Although it comes second on the list of factors under the alimony statute, it is certainly not a predictable factor in determining an alimony award.
Age of Recipient Spouse
The age of the recipient spouse can be a determinative factor when courts consider awarding permanent alimony in gray area marriages. This generally appears in a denial of permanent alimony when a spouse is young30 or in an award of permanent alimony when a spouse is older.31 A clear statement of a spouse’s age being determinative in a denial of permanent alimony came from the Third District in Williams, when the court stated that a 37-year-old spouse in a gray area marriage was not entitled to permanent alimony.32 The First District, on the other hand, seemed to rely on age as a determinative factor in Burrill, to award permanent alimony when it stated that a 40-year-old spouse should be awarded at least some alimony.33 However, our research did not find any other cases in the last 10 years where the age of the spouse was the factor that tipped the scales in favor of, or against, permanent alimony in gray area cases.
Courts have consistently viewed a disparity in the spouses’ abilities to earn income as a significant factor in determining whether permanent alimony is appropriate in a gray area case. This factor, along with the marital standard of living, has historically been the most persuasive factor in obtaining an award of permanent alimony. If the emerging trend (as discussed later in this article) of minimizing the importance of the marital standard of living continues, disparity in the earning abilities of the parties may become the single most important factor when seeking a permanent alimony award.
In Walker v. Walker, 818 So. 2d 711 (Fla.2d DCA 2002), the Second District reversed and remanded to the trial court for further factual findings the denial of alimony in a 12-year marriage where the husband earned $600,000 per year and the wife was a homemaker and mother.34 In doing so, the appellate court emphasized the large disparity in the incomes of the parties.35 In both Yitzhari v. Yitzhari, 906 So. 2d 1250 (Fla. 3d DCA 2005), and Byers v. Byers, 910 So. 2d 336 (Fla. 4th DCA 2005), the Third and Fourth districts were faced with gray area marriages where the husbands earned high incomes and the wives earned none.36 In both cases there were other factors present, including minor children, but it was the large disparity in income that seemed to persuade the courts to award permanent alimony.37
However, earning disparity alone will not determine an award of permanent alimony. The Second District made this clear in Jessee v. Jessee, 961 So. 2d 1118 (Fla. 2d DCA 2007), when it affirmed the denial of permanent alimony to a husband.38 The appellate court stated that even though the wife had a superior earning ability, because the husband earned income amounting to 40 percent of the wife’s and had not given up a career in support of the marriage, income disparity was not determinative under §61.08.39
The presence of minor children is not a specific factor mandated for consideration by the legislature. However, courts have consistently considered the presence of children in both gray area and long-term cases when making decisions regarding permanent alimony. In many cases courts have considered one spouse’s efforts in caring for the children during the marriage as a significant factor in awarding permanent alimony in a gray area marriage.40
In Burrill, the First District found that alimony should have been awarded to a wife in a 16-year marriage based partly on the fact that she took care of the children during the marriage.41 In Byers, the Fourth District found that a wife in a 13-year marriage was entitled to permanent alimony based partially on her agreement to stay home and care for the children.42 The Second District, in Knoff, also found that a wife who had and would continue to stay home with the children and, therefore, could not earn enough income to maintain the standard of living of the marriage, was entitled to permanent alimony.43 Courts do take the existence of children into consideration when a party has stayed home during the marriage to care of the children, while the other party advanced his or her career outside the home. However, one spouse’s desire to continue to stay home with the children after the dissolution may not always be enough to support an award of permanent alimony. This issue is explored further in the discussion on agreements between spouses during the marriage.
Health of Recipient Spouse
When determining whether permanent alimony is appropriate in a gray area marriage, a spouse with health problems may receive permanent alimony if those health problems impact his or her ability to be self supporting, and the health problems arose during the marriage. In Mobley v. Mobley, 778 So. 2d 343 (Fla. 1st DCA 2001), the First District awarded permanent alimony to a wife in a 14-year marriage based largely on the fact that her medical problems prevented her from working.44 In Adinolfe v. Adinolfe, 718 So. 2d 369 (Fla. 4th DCA 1998), the Fourth District awarded permanent alimony in a nine-year marriage to a wife with severe health problems.45 The court reasoned that at the time of the marriage the wife was healthy, and her decline in health occurred during the marriage.46 The Fourth and Fifth districts have indicated that mental health should be considered when determining whether permanent alimony is awarded in a gray area case, but only when poor mental health impacts one’s ability to work.47 Additionally, when a spouse has some health problems and is also caring for a child with health problems, that spouse may be entitled to permanent alimony.48 However, the Fifth District differentiated cases in which a spouse’s medical problems truly hamper his or her ability to be self supporting from those in which a spouse has a medical problem but is not truly debilitated.49 In Johnson v. Johnson, 847 So. 2d 1157 (Fla. 5th DCA 2003), the wife claimed that she was unable to work due to Crohn’s disease.50 However, a vocational expert testified that she could perform sedentary work,51 and the court noted that the wife continued to carry on an extramarital affair that required her to drive long distances.52 The court concluded that the wife was not entitled to permanent alimony because she could support herself if she chose.53 These cases indicate that health problems are an important factor, but they will be considered along with all of the other required factors before a permanent award is entered in a gray area case.
Agreements Between Spouses
Verbal agreements between spouses continue to be given great deference by courts when determining whether permanent alimony should be awarded in gray area marriages.54 For instance, in Greene v. Greene, 895 So. 2d 503 (Fla. 5th DCA 2001), the Fifth District reversed the trial court’s denial of permanent alimony in a 15-year marriage because the trial court did not consider the fact that the husband and wife had agreed for the wife to stay home and take care of the children.55 Many other decisions also indicate that a couple’s agreement for one to stay home while the other works will be considered when determining if permanent alimony is appropriate in a gray area marriage.56 However, as with the other factors, agreements made during the marriage alone are not enough to guarantee permanent alimony in gray area marriages. In Welch v. Welch, 951 So. 2d 1017 (Fla. 5th DCA 2007), the Fifth District considered an 11-year marriage in which the parties agreed that the wife would stay home and care for the children.57 In reversing the trial court’s permanent alimony award, the appellate court found that, due to the inevitable adjustments concomitant with divorce, agreements made during the marriage cannot necessarily stand after separation and, therefore, those agreements alone cannot alone justify an award of permanent alimony.58
Marital Standard of Living
The appellate courts seem to be changing the emphasis regarding the marital standard of living factor. The marital standard of living is the first factor listed in §61.08 and has been a driving force in determining whether to award alimony.59 Recent cases indicate that the standard of living factor may be of less import to courts today. In fact, the Third and Fourth districts are taking specific exception toward allowing the marital standard of living to primarily determine whether and how much permanent alimony should be awarded in gray area marriages.
The First District, in both 1997 and 2001, continued to consider maintaining the marital standard of living as one of the primary purposes of permanent alimony.60 In 2002, the Second District referenced the importance of the wife being able to support herself in a manner consistent with the marital standard of living as an important factor in determining whether the wife was entitled to permanent alimony.61
However, in both gray area and long-term marriages, the Third and Fourth districts have taken steps to lessen the importance of the standard of living established during the marriage in setting alimony awards. First, in Donoff v. Donoff, 940 So. 2d 1221 (Fla. 4th DCA 2006), the Fourth District stated that “the standard of living is not a super-factor in setting the amount of alimony trumping all others.”62 Donoff was a modification case in which the husband was seeking a downward modification of a permanent alimony award stemming from a 14-year marriage.63 The appellate court criticized the trial court for not including all sources of income of the former wife and for placing “considerable — even undue emphasis on the standard of living during the marriage.”64 The appellate court specifically recognized that after a divorce, the standard of living for both parties might necessarily reduce.65 Similarly, the court’s reasoning appeared again in Lambert v. Lambert, 955 So. 2d 35 (Fla. 3d DCA 2007), when the Third District stated that the standard of living was not a “super factor” in setting permanent alimony awards.66 In Lambert, the parties were married for 27 years and had a modest lifestyle.67 Throughout the parties’ separation, the former husband made voluntary support payments to the wife from proceeds of a life insurance payout, which were exhausted at the time of the modification action.68 The court found that, with these funds being exhausted, the former husband’s income did not provide him with the ability to continue making permanent alimony payments of that same amount.69 In reversing the permanent alimony award, the appellate court found that the trial court had “erroneously placed undue emphasis on the standard of living during the marriage” when setting the amount of permanent alimony.70 Finally, in Jaffy v. Jaffy, 965 So. 2d 825 (Fla. 4th DCA 2007), the Fourth District, when considering a permanent alimony award in a 10-year marriage, again stated that “the standard of living during marriage is not a super factor trumping all other factors in awarding alimony.”71 In Jaffy, the parties maintained their standard of living through assistance from their parents.72 Based on this, the court explained that awarding alimony at that high level would encourage extravagance and waste.73 Although this reasoning has not yet appeared in the First, Second, and Fifth districts, these cases clarify that permanent alimony is meant to meet the needs of the requesting spouse, but only to the extent the payor spouse can afford to pay.
The research and analysis relating to permanent alimony cases over the past 10 years is both an informative and frustrating endeavor. Any preconceived notion that more predictable trends would have emerged over time did not hold true. In fact, it seems like the more appellate decisions that are handed down on this subject, the more unpredictable alimony awards become. When looking specifically at gray area marriages, absent any highly persuasive factor, it is safe to presume that marriages at the high end of the gray area are more likely to receive permanent alimony awards. However, once a marriage becomes long term, despite the presumption in favor of permanent alimony, there does not seem to be any one factor that allows us to predict whether that presumption will be overcome. The only firm conclusion one can make in this exhaustive review of alimony awards in Florida is that the trier of fact will take all facts presented to him or her and will fashion a decision based on all the equities. Absent alimony guidelines, this area will always be difficult to predict as equity is often — like beauty — in the eye of the beholder.
1 Canakaris v. Canakaris, 382 So. 2d 1197, 1201 (Fla. 1980).
2 Id. at 1201-02.
3 The factors included in Fla. Stat. §61.08(2) are the standard of living established during the marriage, the duration of the marriage, the age and physical and emotional condition of each party, the financial resources of both parties, the time necessary to acquire sufficient education or training to find employment, the contributions of each spouse to the marriage, all sources of income available, and any other factor necessary to do equity and justice. Fla. Stat. §61.08(2) (2007).
4 Victoria M. Ho & Janiece Martin, Appellate Court Trends in Permanent Alimony for “Gray Area” Divorces, 71 Fla. B. J. 60 (Oct. 1997).
5 A chart including many of the Florida cases decided in the last 10 years in which the court provided an analysis of why it either affirmed or reversed an award of permanent alimony is available via e-mail by request to [email protected] This chart is divided into two main sections: cases in which the permanent award was affirmed and cases in which the permanent award was reversed. Within each of these two sections the cases are organized by district and in reverse chronological order. You will also notice that some of the cases are highlighted in colors. The blue cases represent those discussing income disparity as a significant factor and the red cases are those discussing the marital standard of living as a significant factor, while the purple represents those cases discussing both of these factors. These two are the most discussed factors in determining permanent alimony awards.
6 Fla. Stat. §61.08(2)(f).
7 Jessee v. Jessee, 961 So. 2d 1118, 1121 (Fla. 2d D.C.A. 2007).
8 Krafchuk v. Krafchuk, 804 So. 2d 376 (Fla. 4th D.C.A. 2001).
9 Escuerdo v. Escuerdo, 739 So. 2d 688 (Fla. 5th D.C.A. 1999).
10 Ho & Martin, Appellate Court Trends in Permanent Alimony for “Gray Area” Divorces, 71 Fla. B. J. 60 (Oct. 1997).
11 At least one court has indicated that consecutive marriages between the same parties may be added together in determining the length of a marriage. Lapham v. Lapham, 778 So. 2d 487 (Fla. 5th D.C.A. 2001).
12 Burrill v. Burrill, 701 So. 2d 354 (Fla. 1st D.C.A. 1997).
13 Borchard v. Borchard, 730 So. 2d 748 (Fla. 2d D.C.A. 1999).
14 Hann v. Hann, 629 So. 2d 918 (Fla. 2d D.C.A. 1993).
15 Cardillo v. Cardillo, 707 So. 2d 350, 351 (Fla. 2d D.C.A. 1998) (citing Nelson v. Nelson, 588 So. 2d 1049 (Fla. 2d D.C.A. 1991)).
16 Knoff v. Knoff, 751 So. 2d 167, 169 n.2 (Fla. 2d D.C.A. 2000).
17 Williams v. Williams, 904 So. 2d 488 (Fla. 3d D.C.A. 2005).
18 Moorehead v. Moorehead, 745 So. 2d 549, 551 (Fla. 4th D.C.A 1999).
19 Pollock v. Pollock, 722 So. 2d 283 (Fla. 5th D.C.A. 1998).
20 Hill v. Hooten, 776 So. 2d 1004 (Fla. 5th D.C.A. 2001).
21 Layeni v. Layeni, 843 So. 2d 295, 298 (Fla. 5th D.C.A. 2003).
22 Williams, 904 So. 2d 488.
23 Peterson v. Peterson, 929 So. 2d 38 (Fla. 4th D.C.A. 2006).
25 Burrill, 701 So. 2d 354.
26 Id. at 356.
27 Levy v. Levy, 862 So. 2d 48 (Fla. 3d D.C.A. 2003).
30 Williams, 904 So. 2d 488; Peterson, 929 So. 2d 38; Alpha v. Alpha, 885 So. 2d 1023, 1033 (Fla. 5th D.C.A. 2004).
31 Mobley v. Mobley, 778 So. 2d 343 (Fla. 1st D.C.A. 2001); Burrill, 701 So. 2d 354.
32 Williams, 904 So. 2d 488.
33 Burrill, 701 So. 2d 354.
34 Walker, 818 So. 2d 711 (Fla. 2d D.C.A. 2002).
36 Yitzhari v. Yitzhari, 906 So. 2d 1250 (Fla. 3d D.C.A. 2005); Byers v. Byers, 910 So. 2d 336 (Fla. 4th D.C.A. 2005).
38 Jessee, 961 So. 2d 1118.
39 Id. at 1121.
40 Burrill, 701 So. 2d 354; Walker v. Walker, 873 So. 2d 565 (Fla. 2d D.C.A. 2004); Walker, 818 So. 2d 711; Yitzhari, 906 So. 2d 1250; Byers, 910 So. 2d 336; McHugh v. McHugh, 702 So. 2d 639 (Fla. 4th D.C.A. 1997); Greene v. Greene, 895 So. 2d 503 (Fla. 5th D.C.A. 2005); Bracero v. Bracero, 849 So. 2d 388 (Fla. 5th D.C.A. 2003); Thomas v. Thomas, 776 So. 2d 1092 (Fla. 5th D.C.A. 2001).
41 Burrill, 701 So. 2d 354.
42 Byers, 910 So. 2d at 343-344.
43 Knoff, 751 So. 2d at 168-169.
44 Adinolfe v. Adinolfe, 718 So. 2d 369 (Fla. 4th D.C.A. 1998).
46 Id.; see Bracero, 849 So. 2d 388 (Fla. 5th D.C.A. 2003).
47 McHugh, 702 So. 2d 639; Pollock v. Pollock, 722 So. 2d 283 (Fla. 5th D.C.A. 1998).
48 Greene, 895 So. 2d 503; Layeni, 843 So. 2d 295.
49 Johnson v. Johnson, 847 So. 2d 1157 (Fla. 5th D.C.A. 2003).
54 Ho & Martin, Appellate Court Trends in Permanent Alimony for “Gray Area” Divorces, 71 Fla. B. J. 60 (Oct. 1997).
55 Greene, 895 So. 2d 503.
56 See, e.g., Bracero, 849 So. 2d 388; McHugh, 702 So. 2d 639; Burrill, 701 So. 2d 354; Mobley, 778 So. 2d 343.
57 Welch v. Welch, 951 So. 2d 1017 (Fla. 5th D.C.A. 2007).
58 Id. at 1019-1020.
59 Fla. Stat. §61.08 (2007); Ho & Martin, Appellate Court Trends in Permanent Alimony for “Gray Area” Divorces, 71 Fla. B. J. 60 (Oct. 1997).
60 Mobley, 778 So. 2d 343; Burrill, 701 So. 2d 354.
61 Walker, 818 So. 2d at 713.
62 Donoff, 940 So. 2d at 1225.
63 See Donoff v. Donoff, 777 So. 2d 1078 (Fla. 4th D.C.A. 2001).
64 Id. at 1225.
65 Id. at 1225-1226.
66 Lambert, 955 So. 2d 35, 38 (Fla. 3d D.C.A. 2007).
67 Id at 37.
69 Id. at 37-38.
70 Id. at 38.
71 Jaffy, 965 So. 2d 825, 828 (Fla. 4th D.C.A. 2007).
Victoria M. Ho is a partner in the Naples law firm of Asbell, Ho, Klaus, Goetz & Doupe, P.A. She is board certified in marital and family law and is a fellow in the American Academy of Matrimonial Lawyers. She practices exclusively in the area of marital and family law. Ms. Ho is a graduate of the University of the Wisconsin Law School and a magna cum laude undergraduate of the University of Minnesota.
Stephanie A. Sussman is an associate with Asbell, Ho, Klaus, Goetz & Doupe, P.A. She is a cum laude graduate of Florida Coastal School of Law. She received her M.A. in counseling psychology from the University of North Florida and a B.A. and B.S. from the University of Georgia.
This column is submitted on behalf of the Family Law Section, Allyson Hughes, chair, and Susan W. Savard and Laura Davis Smith, editors.