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

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GUY S. EMERICH

JACK O. HACKETT IICHARLES T. BOYLE

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DAVID A. HOLMES

GARY A. KAHLE

ROGER H. MILLER IIIDOROTHY L. KORSZEN

WILL W. SUNTER

FORREST J. BASS

NATALIE C. LASHWAY

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

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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

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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

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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.

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NO CURRENT ABILITY TO PAY

CASE LENGTH OF MARRIAGE FACTS TRIAL COURT

ACTIONAPPELLATE COURT ACTION

Biskie v. Biskie,37 So. 3d 970(Fla. 1st DCA 2010)

15 years ▪Gray area marriage▪During the marriage, W sporadically worked outside the home due, in part, to relocations for H’s career▪W was 59 & owned home-based business▪H was 48 & was director of human resources▪H’s income had been reduced by 20%, but he expected it to increase

▪H awarded almost all of parties’ significant, but short-term, debt▪No ability to pay▪Denied PPA

▪Reversed denial of PPA▪Remanded for at least NA to be awarded

Reed v. Reed244 So. 2d 449(Fla. 1st DCA 1971)

Not specified in opinion.

Not specified in opinion. ▪Denied alimony▪Failed to reserve jurisdiction

▪Amended to reserve jurisdiction▪Likelihood of improvement in H’s financial circumstances that would enable him to pay

Melton v. Melton, 251 So. 2d 705(Fla. 1st DCA 1971)


▪1 minor child▪H was 26 & employed by phone company▪W was 23▪W graduated from junior college & worked as substitute teacher, but had been unemployed for some time▪During DOM proceedings, W had applied for job

▪Denied alimony▪Failed to reserve jurisdiction

▪Affirmed denial of alimony▪Reversed failure to reserve jurisdiction▪Not unreasonable for court to anticipate reduction in W’s needs based on her contemplated employment

Schmidt v. Schmidt,997 So. 2d 451(Fla. 2d DCA 2008)

15 years ▪During marriage, H worked as salesman at $120,000/year▪H was laid off during DOM proceedings and found similar work at $78,000/year▪At time of DOM, W owned retail store & there was conflicting evidence as to whether she made any income

▪W entitled to PPA, but H did not have present ability to pay▪Awarded rehab alimony for 2 years▪Reserved jurisdiction on alimony issue for 2 years

▪Reversed reservation of jurisdiction for only 2 years▪Remanded for NA to be awarded

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Fleck v. Fleck, 958 So. 2d 1043(Fla. 2d DCA 2007)

11 years ▪Gray area marriage▪H made over $225,000/year▪W had no income, but had college degree in marketing

▪Imputed income to W at $20,800/year▪H was primary residential parent of their 6 children▪Assigned H almost all substantial marital debt▪No present ability to pay▪Denied alimony “at this time”▪Did not reserve jurisdiction

▪Reversed & remanded for court to consider NA & either find NA is inappropriate or award NA

Cunningham v. Cunningham, 930 So. 2d 719(Fla. 2d DCA 2006)

27 years ▪Children over 18▪During marriage, H earned substantially more than W▪W stayed home for 8 years of marriage ▪At time of DOM, H’s income was less than during most of marriage, but H expected his income to increase in near future

▪W had need, but H did not have ability to pay▪Alimony factors did not favor award of alimony because equitable distribution put them on equal footing▪Did not reserve jurisdiction

▪Reversed & remanded for court to award NA▪Factors favor PPA, although nominal at this time

Blanchard v. Blanchard, 793 So. 2d 989(Fla. 2d DCA 2001)

over 30 years ▪Children over 18▪W worked as teacher ▪H earned significantly more ▪H changed careers to pursue photography & parties agreed to same, at least initially▪At time of DOM, H was not earning much income in new career

▪H’s job would either become profitable in next few years or he would change careers for a more profitable career▪Awarded bridge the gap alimony to H▪Denied PPA to W because her income exceeded H’s

▪Reversed as to bridge the gap alimony & failure to reserve jurisdiction on PPA for W▪Remanded for court to award NA to W

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Stock v. Stock, 693 So. 2d 1080 (Fla. 2d DCA 1997)


▪Minor children▪H earned 61% of parties’ combined monthly income▪Lived beyond their means

▪W was entitled to alimony▪H’s ability to pay alimony limited because of child support payments▪Reserved jurisdiction to award PPA

▪Affirmed reservation of jurisdiction as there was a likelihood of change in circumstances in future that would permit H to pay alimony

Gildea v. Gildea,593 So. 2d 1212(Fla. 2d DCA 1992)

21 years ▪2 minor children & 1 child over 18▪During marriage, H made significantly more than W ▪H was terminated from job during DOM proceedings, but seeking reemployment

▪Awarded PPA to W ▪Amount of PPA exceeded H’s ability to pay▪Reversed & remanded for PPA or NA to be awarded commensurate with H’s ability and to reserve jurisdiction

Purrinos v. Purrinos,34 So. 3d 244 (Fla. 3d DCA 2010)

15 years ▪3 minor children▪During marriage, H earned substantially more▪At time of final hearing, H was temporarily & involuntarily unemployed, but expected reemployment

▪Denied alimony ▪Reversed & remanded for NA to be awarded

Gulbrandson v. Gulbrandson, 22 So. 3d 640 (Fla. 3d DCA 2009)

23 years ▪Children over 18▪During most of marriage, W cared for children & home▪At time of DOM, W was not employed & did not have health insurance▪W had back & neck issues▪H in good health ▪H worked as engineer & inventor

▪H’s income likely to change based on either success or failure of invention & company ▪Awarded PPA to W in lump sum of $237,000

▪W’s need not established▪Reversed & remanded for court to award NA to accommodate change in H’s income & change in W’s need (due to increased need because of health insurance)

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Squindo v. Squindo,943 So. 2d 232 (Fla. 3d DCA 2006)

over 25 years ▪Children over 18▪During marriage, H worked for family company in Switzerland making $120,000/year▪Parties lived lavish lifestyle until they moved to FL▪At time of DOM, H worked at the University of Florida making $33,000/year ▪W did not work

▪H had ability to get financial assistance from family▪Awarded PPA

▪Evidence did not support finding that H has ability to pay or that H was underemployed▪Ability of H to get financial assistance from family was irrelevant▪Reversed PPA & remanded for consideration of NA or reservation of jurisdiction in case of significant change in circumstances in future

Wing v. Wing, 429 So. 2d 782 (Fla. 3d DCA 1983)

20 years ▪At time of DOM, H’s income was reduced

▪Denied PPA ▪W entitled to PPA ▪Reduction in H’s income was temporary▪Reversed denial of alimony ▪Remanded for NA to be awarded

Zarycki-Weig v. Weig, 25 So. 3d 573(Fla. 4th DCA 2009)

15 years, including 4 years of separation

▪Gray area marriage ▪H was lawyer making $78,000/year▪W worked intermittently during marriage, most recently as store manager making $38,000/year

▪W may have a need, but H did not have ability▪Denied PPA▪Denied NA because there was no evidence of likelihood of change that would support award of alimony

▪Affirmed denial of alimony▪No abuse of discretion in denying NA because this was a gray area marriage & there was no evidence of likelihood of change in circumstances that would support award of alimony

Salazar v. Salazar,976 So. 2d 1155(Fla. 4th DCA 2008)

31 years ▪1 minor child▪H worked 40+ hours/week for $15/hour▪W worked 25 hours/week for $10/hour▪W had worked full-time in past and there was no reason she could not do so

▪W had need, but H did not have ability▪Imputed income to W▪H still had $2,019 more monthly income than W

▪Reversed & remanded to award PPA or NA

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Fusco v. Fusco,616 So. 2d 86(Fla. 4th DCA 1993)


Not specified in opinion. ▪Imputed income to H▪Awarded PPA to W based on H’s imputed income

▪Reversed PPA & remanded to award NA to protect FW’s interests in case H’s income improved

Boyle v. Boyle,30 So. 3d 665(Fla. 5th DCA 2010)

25 years ▪Children over 18▪During marriage, H worked at Lowe’s ▪During DOM proceedings, H lost his job ▪During most of marriage, W stayed home with children▪After separation, W had lower-level employment making $10-11/hour

▪W entitled to PPA▪Awarded NA to W based on H’s inability to pay

▪Reversed & remanded because it was error to not consider assets awarded to H in equitable distribution in determining ability to pay

Marshall v. Marshall, 953 So. 2d 23(Fla. 5th DCA 2007)

37 years ▪H was disabled & his retirement was his sole income▪W was able bodied, had stable income & had ready employability▪Parties’ incomes were relatively the same, no great disparity in parties’ financial circumstances

▪Awarded NA to W in case H’s ability to pay changed in the future

▪Affirmed NA

Misiak v. Misiak, 898 So. 2d 1159 (Fla. 5th DCA 2005)

long-term ▪During marriage, W did not work & H earned substantial income▪High standard of living▪H unemployed after leaving job due to medical reasons▪H was able to go back to work, but had not secured employment yet▪At time of appeal, H was 58 ▪W’s needs met by equitable distribution

▪Denied NA▪Although alimony would normally be awarded based on the length of the marriage, lifestyle & H’s earning potential, H did not have ability & W did not have need

▪Reversed & remanded for NA to be awarded to W

Felipe v. Felipe, 669 So. 2d 357(Fla. 5th DCA 1996)

18 years ▪During marriage, H was primary provider▪During DOM proceedings, H’s income decreased

▪Denied PPA without explanation

▪Reversed & remanded for at least NA to be awarded

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NO CURRENT NEED



Herman v. Herman,889 So. 2d 128(Fla. 1st DCA 2004)

~4 years ▪W diagnosed with kidney disease during marriage▪H & W were young

▪Reserved jurisdiction indefinitely▪Likely that W would have medical problems in future & would have need

▪Reversed indefinite reservation of jurisdiction because W did not have claim for PPA▪Remanded to determine whether it is necessary to reserve jurisdiction, &, if so, to establish a reasonable time limit

Margarowicz v.Margarowicz, 429 So. 2d 376 (Fla. 1st DCA 1983)

35 years ▪Children over 18▪W was 53 & mildly diabetic, but it was controlled by medication & diet▪W worked as a nurse▪H had net monthly income of about $600 more than W

▪Denied PPA▪Failed to reserve jurisdiction on alimony issue

▪Affirmed denial of PPA without reservation of jurisdiction▪No abuse of discretion to not award PPA as W had a stable job, got the 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, 111 So. 2d 299(Fla. 1st DCA 1959)


▪2 minor children▪W was teacher▪H was Army sergeant

▪W did not have need ▪Failed to award alimony or reserve jurisdiction

▪No abuse of discretion in failing to reserve jurisdiction

Perkovich v. Humphrey-Perkovich, 2 So. 3d 348 (Fla. 2d DCA 2008)

~28 years ▪H made $450,000/year▪W made $320,000/year▪Part of W’s income was from performing surgery▪W had medical condition that could affect her ability to do surgery

▪Awarded PPA to W based on their disparate incomes & possible impact of her medical condition on her future earnings

▪Reversed PPA to the extent that it relied on the disparate incomes of the parties ▪Remanded for court to consider NA in case W’s income decreased in future

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NO CURRENT NEED



Schlagel v. Schlagel, 973 So. 2d 672 (Fla. 2d DCA 2008)

21 years ▪H made $69,500/year▪Reasonably modest lifestyle▪During marriage, W took care of child, but had worked outside the home▪W’s highest income was $26,683/year about 10 years before DOM▪W was Turkish, but obtained her undergraduate & law degrees in the US▪W unsuccessfully took the Bar Exam 4 times

▪Imputed income to W at $40,000/year▪Denied PPA

▪Reversed denial of PPA ▪Remanded for NA to be awarded in case W is unable to secure employment, after using her best efforts, in the amount imputed

Nourse v. Nourse, 948 So. 2d 903(Fla. 2d DCA 2007)

23 years ▪H worked for the state▪W was unemployed, although previously worked from home▪W was permanently disabled because she was bipolar▪W’s condition could improve with medication & lifestyle changes, but she would only be able to secure menial labor

▪Awarded bridge the gap alimony based on finding that W would be able to regain some kind of employment once stress of DOM was over

▪Reversed & remanded for at least NA to be awarded based on historic incomes of the parties, length of the marriage, & W’s potential future needs▪Finding that W would be able to seek employment after DOM was not supported by the evidence

Italiano v. Italiano, 873 So. 2d 558(Fla. 2d DCA 2004)

~18 years ▪During the entire marriage, H was CEO & COO of company & W did not work▪Parties stipulated to W’s entitlement to PPA & W’s present lack of need

▪Awarded NA because W might have need in the future

▪Reversed NA▪Error to award NA because of the unusual circumstances of the case▪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, 884 So. 2d 87(Fla. 2d DCA 2004)

17 years ▪During marriage, W was primary provider & earned substantially more than H▪H worked mostly in retail sales during marriage▪H was bipolar & recovering alcoholic

▪Awarded PPA to H ▪Reversed & remanded for clarification of H’s need▪If need but no ability demonstrated, NA could still be awarded on remand

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NO CURRENT NEED



Lightcap v. Lightcap, 14 So. 3d 259(Fla. 3d DCA 2009)

over 30 years ▪During most of marriage, H was employed in highly skilled & well paid job▪During marriage, W worked in clerical jobs▪At the very end of the marriage, W secured a well paying job & H retired▪At time of DOM, W earned more than H

▪Awarded NA to W▪H had ability to work, but chose not to▪H had ability to earn $40,000 to $200,000 per year

▪Affirmed NA ▪NA appropriate in case H realized his full earning potential

Esteva v. Rodriguez, 913 So. 2d 684(Fla. 3d DCA 2005)

16 years ▪Child over 18▪H worked as salesman & developed businesses ▪W worked as teacher during marriage & at time of DOM▪W had fibromyalgia, but continued to work▪H was 7-9 years younger than W (decision is inconsistent)

▪Denied NA ▪Expressed concern about the future of W’s medical condition

▪Reversed denial of alimony & remanded for court to determine whether NA should be granted▪Unclear whether trial court considered NA & decided not to award it or thought it could not award NA

Castillo v. Castillo, 626 So. 2d 1035(Fla. 3d DCA 1993)

less than 5 years ▪Minor children▪During most of marriage, H worked as manager at $30,000-$77,000/year▪H was laid off & reemployed at $12,000/year▪At time of DOM, W made $21,000/year

▪Awarded NA to W in case H’s income increased

▪Reversed NA because 1) short-term marriage; 2) W was 37, self-supporting, & did not have any disability; 3) neither party had significant nonmarital financial resources; & 4) W did not sacrifice her career or educational opportunities

Schwartz v. Schwartz, 450 So. 2d 277 (Fla. 3d DCA 1984)


▪W’s income just about equaled H’s▪W’s earning capacity and net worth exceeded H’s

▪Awarded PPA to W ▪Reversed PPA & remanded for reservation of jurisdiction to award alimony to either party in future

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NO CURRENT NEED



Weinman v. Weinman,310 So. 2d 442(Fla. 3d DCA 1975)

25 years ▪2 minor children▪At time of DOM, H had net income of about twice as much as W

▪Awarded W possession of home until minor children reached majority (about 2 years from date of DOM) or W remarried, whichever occurred earlier▪Denied PPA ▪W had no current need based on having possession of home & her current income

▪Modified judgment to reserve jurisdiction on alimony issue based on termination of possession of home in at most 2 years & that circumstances obviating W’s current need could change

Dings v. Dings, 161 So. 2d 227(Fla. 3d DCA 1964)


Not specified in opinion. ▪Found that W was self-supporting & had no need▪Denied W alimony

▪Error not to reserve jurisdiction to award alimony in future if 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

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NO CURRENT NEED



Schiff v. Schiff, 123 So. 2d 295(Fla. 3d DCA 1960)


▪Minor child▪W was able to earn money by giving piano lessons

▪Denied alimony because W was able to make money giving piano lessons

▪Reversed denial of alimony without reserving jurisdiction▪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, 337 So. 2d 998(Fla. 4th DCA 1976)

23 years ▪1 minor child, 3 children over 18▪W was school teacher earning $9,500/year▪H earned $14,040/year▪Both parties were in their early 50s

▪Failed to reserve jurisdiction on alimony issue

▪Reversed & remanded for reservation of jurisdiction on alimony issue▪W did not have a 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, 699 So. 2d 280(Fla. 5th DCA 1997)

39 years ▪H was police officer & retired 17 years before DOM▪Parties started a corporation & had retail stores▪Corporation ran souvenir stores which had been relocated, closed, & had competitors▪W was 57 & had medical issues▪H was 60 & was manic depressant

▪Awarded NA to W▪Distributed the stock in corporation to W

▪Affirmed NA award▪NA was appropriate in case corporation’s profitability decreased

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NO CURRENT NEED



Davis v. Davis, 691 So. 2d 626 (Fla. 5th DCA 1997)

~35 years ▪H had 9th grade education▪H retired from naval career▪H retired from tugboat career▪H was 55 & had arthritis▪W never worked outside home▪W had cancer previously & had medical issues▪W would not be able to get health insurance

▪Imputed income to H▪Awarded PPA to W based on H’s imputed income

▪Reversed imputation of income & PPA & remanded for court to consider NA in case W’s medical expenses increased (given her history of cancer and inability to get insurance)▪Finding of H’s income potential was unsupported by the evidence▪No evidence supporting W’s need for alimony

Moore v. Moore, 401 So. 2d 841 (Fla. 5th DCA 1981)

31 years ▪Children over 18▪During marriage, H worked as electrician ▪W didn’t work until last 9 years of marriage, after H paid for her to go to college & get her master’s▪For last 9 years of marriage, W worked as instructor at community college▪W was 50 & in good health▪H was 53, was injured on the job, & may have need for future support due to his deteriorating health

▪Awarded NA to H ▪Affirmed NA to H▪Not error to award H NA based on length of marriage, H paying for W & children to go to college, & foregoing saving for himself▪Evidence of ability, but not of need▪Evidence supported that H may have need in future if he is no longer able to work as electrician

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MODIFICATION ACTION

CASE FACTS TRIAL COURT ACTION APPELLATE COURT ACTION

Castleberry v. Castleberry,29 So. 3d 1207(Fla. 1st DCA 2010)

▪At time of modification, FW earned more than FH

▪Reduced alimony, but still more than NA

▪Reversed & remanded for alimony to be reduced to NA

Bridges v. Bridges,842 So. 2d 983(Fla. 1st DCA 2003)

▪FW cohabitated with man & they contributed to the financial support of each other▪FW and man exchanged vows & rings in a ceremony, but were not legally married

▪Terminated alimony ▪Judgment modified to award FW NA▪NA should be awarded to protect FW’s future interests in case of a significant change in circumstances▪“The voluntary contribution of a live-in companion cannot be equated with the legal obligation of a [spouse or] former spouse”

Brewer v. Brewer,898 So. 2d 986(Fla. 2d DCA 2005)

▪FH lost job as attorney, was unable to find comparable employment, & opened office as a sole practitioner

▪Terminated alimony ▪Reversed termination of alimony & remanded for NA to be awarded▪FH’s income could increase in future▪Need to preserve FW’s future rights

Reno v. Reno,884 So. 2d 462(Fla. 4th DCA 2004)

▪FW cohabitated with & was financially supported by fiancé ▪FH didn’t request termination, only requested reduction

▪Terminated alimony ▪Reversed termination of alimony & remanded for NA to be awarded▪Evidence supported finding that almost all 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,520 So. 2d 699(Fla. 4th DCA 1988)

▪18 year marriage▪FW was 65.5, was supported by her son for years, & was unable to support herself on her $345 monthly income of Social Security, government subsidy for son, & alimony▪FH was 63 & had income of $1,807 per month

▪$75 per month PPA was awarded to W in DOM in 1967▪FW sought modification to increase PPA▪Denied increase in PPA

▪Reversed denial of increase in PPA▪Remanded for PPA to be increased▪To increase alimony, need to prove either increase in need or increase in ability▪Here, there was both a substantial increase in ability & a substantial increase in need

Olsen v. Olsen, 964 So. 2d 798 (Fla. 5th DCA 2007)

▪FH retired due to medical issues▪FW was working as hotel desk clerk▪Parties in their mid - late 60s▪Both parties testified to having medical issues

▪Reduced PPA to $200/month

▪Reversed & remanded to redetermine FW’s income & expenses & reconsider reduction or termination of alimony▪FW’s income & expenses appeared to be calculated incorrectly▪If FW is not in peril of poverty, then trial court may consider reducing alimony to NA

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MODIFICATION ACTION

CASE FACTS TRIAL COURT ACTION APPELLATE COURT ACTION

Pill v. Pill,583 So. 2d 1114(Fla. 5th DCA 1991)

▪FW cohabitated with boyfriend who paid rent & did yard work & maintenance

▪Reduced alimony by value of boyfriend’s yard work & maintenance, but failed to consider rent money paid to FW by boyfriend

▪Reversed & remanded for NA to be awarded for so long as FW does not have a need▪FW’s income exceeds her needs

LIKELIHOOD OF FAILURE TO COMPLY WITH EQUITABLE DISTRIBUTION

CASE FACTS TRIAL COURT ACTIONAPPELLATE COURT ACTION

Bongiorno v. Yule, 920 So. 2d 1209 (Fla. 1st DCA 2006)

▪At time of DOM, W did not have a need because she would receive income from marital ownership in corporation▪H was in charge of all funds flowing thru the corporation & had the ability to disrupt W’s income stream

▪NA awarded because there was a possibility that alimony would be necessary in the future▪In modification action after H failed to pay W any money from corporate income, W was awarded alimony▪W had the need for alimony as a result of H’s failure to comply with equitable distribution▪H failed to pay alimony and was found in contempt

▪Affirmed order of 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

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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 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.”

Documents

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