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Defendant's Attorney: Christina Diaz

Description:

Tallahassee, Florida - Divorce lawyer represented Appellant with appealing from a final judgment of dissolution of marriage.

“Permanent alimony may be awarded to provide for the needs
and necessities of life as they were established during the marriage
. . . for a party who lacks the financial ability to meet his or her
needs and necessities of life following a dissolution of marriage.” §
61.08(8), Fla. Stat. (2017). In the case of a long-term marriage
lasting at least seventeen years, the courts recognize a rebuttable
presumption in favor of awarding permanent alimony. Schroll v.
Schroll, 227 So. 3d 232, 237 (Fla. 1st DCA 2017); Gotro v. Gotro,
218 So. 3d 494, 497 (Fla. 1st DCA 2017); Keyser v. Keyser, 204 So.
3d 159, 160 (Fla. 1st DCA 2016); Nolan v. Nolan, 188 So. 3d 977,
979 (Fla. 1st DCA 2016). “A trial court can overcome [the
presumption] by making detailed findings of fact regarding a
spouse’s need and the other spouse’s ability to pay, as well as by
considering all the relevant statutory factors listed in section
61.08(2).” Hua v. Tsung, 222 So. 3d 584, 588 (Fla. 4th DCA 2017);
accord Keyser, 204 So. 3d at 160–61; Nolan, 188 So. 3d at 978–79.
“If a court finds permanent alimony inappropriate because, based
on the statutory factors under section 61.08(2), the recipient
spouse has ‘no ongoing need for support on a permanent basis,’
durational alimony may be appropriate even in a long-term
marriage.” Speigner v. Speigner, 312 So. 3d 1289, 1291 (Fla. 1st
DCA 2021). “It is an abuse of discretion to not award permanent
periodic alimony in a long-term marriage unless the presumption
favoring such an award is overcome by competent, substantial
evidence.” Frerking v. Stacy, 266 So. 3d 273, 275 (Fla. 5th DCA
2019). “[I]f supported by competent, substantial evidence, a trial
court could find that the recipient spouse will attain a level of selfsupport commensurate with the marital standard of living by the
time the durational alimony expires so as to rebut the presumption
in favor of permanent alimony.” Speigner, 312 So. 3d at 1291.
Former wife claims that the trial court’s award of durational
alimony of $1900 per month for ninety-six months constituted an
abuse of discretion because the trial court did not make sufficient
findings as to why permanent alimony was inappropriate in the
parties’ long-term marriage. The trial court found that former wife
had a monthly mortgage payment of $1900 and that durational
alimony was “fair and reasonable” and “appropriate in this case to
assist the wife with a current need for a defined period.” While the
amount of alimony awarded by the trial court was supported by
competent substantial evidence, the court made no findings as to
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how it arrived at ninety-six months for the durational period where
the mortgage had a principal balance of $286,414, indicating that
the monthly mortgage payments would extend well beyond ninetysix months.
Although the trial court found that former wife would be
entitled to receive a portion of former husband’s federal pension
when he retired, there was no finding as to when that would occur.
At the final hearing, former husband testified that he had received
extensions allowing him to work beyond the mandatory retirement
age of fifty-seven. Moreover, the trial court noted in its final
judgment that the mandatory retirement age did not apply to law
enforcement officers like former husband who were hired before
July 6, 2008. In short, the trial court did not identify any particular
event or development that would occur at the end of ninety-six
months or otherwise explain this expiration date.
The trial court was required to make a finding that at the end
of the durational alimony period former wife would no longer
require the assistance of alimony to fully support her needs and
necessities of life as they were established during the marriage.
Speigner, 312 So. 3d at 1291. The trial court’s denial of permanent
alimony in favor of durational alimony for eight years—without
any explanation of how former wife’s ongoing need for support will
expire after eight years—requires this court to reverse and remand
for reconsideration of the proper type of alimony. Id. If the trial
court again concludes that durational rather than permanent
alimony is appropriate, the trial court must support that
determination with findings of fact regarding how the court
arrived at the termination date and what change in former wife’s
need or former husband’s ability to pay would take place by that
date. Id.
On cross-appeal, former husband claims that the trial court
erred in determining that he accrued 440 annual leave hours
valued at $29,871 that were subject to equitable distribution. He
correctly points out that as a federal employee stationed outside
the United States during his career, he could accumulate no more
than 360 hours of annual leave. 5 U.S.C.A. § 6304(b) (“Annual
leave not used by an employee of the Government of the United
States . . . stationed outside the United States accumulates for use
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in succeeding years until it totals not more than 45 days [360
hours] at the beginning of the first full biweekly pay period, or
corresponding period for an employee who is not paid on the basis
of biweekly pay periods, occurring in a year . . . .”). Former wife
concedes error.

Outcome: Accordingly, we reverse and remand with
directions that the trial court recalculate the equalization payment
to former wife to reflect the reduced value of 360 hours of accrued
annual leave

Plaintiff's Experts:

Defendant's Experts:

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