PAULA A. DIBARTOLOMEO, APPELLANT,
v.
GERALD A. DIBARTOLOMEO, JR., APPELLEE
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Former wife appeals a final judgment of dissolution of marriage, challenging both the alimony provision that automatically terminates upon cohabitation and the denial of attorney's fees. The court strikes the cohabitation termination clause as improper absent a valid settlement agreement, but affirms the remaining judgment including the denial of attorney's fees.
A trial court may not automatically terminate alimony based solely on cohabitation without a valid settlement agreement; instead, modification must be based on a factual finding of changed circumstances affecting the former spouse's financial condition and need. The denial of attorney's fees was not an abuse of discretion given that the dissolution placed both parties in substantially equal financial positions relative to their circumstances.
[1] A trial court may not include a provision in a final judgment automatically terminating alimony upon the receiving spouse's cohabitation with another absent a valid settl…
[2] Cohabitation alone cannot precipitate a termination of alimony without a factual finding of a change in circumstances concerning the former spouse's needs and finances.
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Join FLexlaw to unlock all legal intelligence“Absent a valid settlement agreement between the parties, a trial judge may not include a provision in a final judgment automatically terminating alimony upon the receiving spouse's cohabitation with another.”
Establishes the core holding that cohabitation clauses require a settlement agreement to be valid.
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Join FLexlaw to unlock all legal intelligenceThe trial court awarded the former wife $2,500 per month in permanent periodic alimony with an automatic termination provision upon remarriage, cohabi…
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PER CURIAM.
Former wife appeals the final judgment of dissolution of marriage and an order denying attorney’s fees.
The final judgment awarded former wife $2,500 per month in permanent periodic alimony until she “remarries, cohabits with a member of the opposite sex, or dies, whichever occurs first.” Absent a valid settlement agreement between the parties,1 a trial judge may not include a provision in a final judgment automatically terminating alimony upon the receiving spouse’s cohabitation with another. Buscemi v. Buscemi, 610 So. 2d 674 (Fla. 2d DCA 1992); Condren v. Condren, 475 So. 2d 268 (Fla. 2d DCA 1985).
To justify a post judgment modification, the focus should not be so much on the cohabitation as on how the living situation has impacted the former spouse’s financial condition and need for continued support. See Maclaren v. Madmen, 616 So. 2d 104, 106 (Fla. 1st DCA 1993).
Because it does not entail the same benefits, duties and rights as a traditional marriage, cohabitation alone cannot precipitate a termination of alimony without the factual finding of a change in circumstances concerning the former spouse’s needs and finances. See Sheffield v. Sheffield, 310 So. 2d 410 (Fla. 3d DCA 1975), cert. denied, 328 So. 2d 844 (Fla.1976).
As to the remaining points on appeal, we find no abuse of discretion. Although the final judgment indicates that the valuation date of assets was the date of trial, the primary valuation date used by the parties and relied upon by the court was April 30, 1994. The detailed final judgment demonstrates valuations in accord with section 61.075(6), Florida Statutes (1993).
Given the size of the marital debt assigned to former husband ($474,680), the post equitable distribution disparity in the parties’ respective net worths ($156,707 in favor of former wife), the net monthly non-imputed income available to former husband ($6,647), the monthly permanent alimony award ($2,500), and the child-related support, school, and health expenses assigned to former husband, we find that the denial of former wife’s attorney’s fees was not an abuse of discretion because the dissolution placed the parties in the same relative financial position. See Keaton v. Keaton, 634 So. 2d 798, 799 (Fla. 4th DCA 1994); Naugle v. Naugle, 632 So. 2d 1146 (Fla. 5th DCA 1994); Millen v. Millen, 658 So. 2d 613 (Fla. 2d DCA 1995).
We strike the cohabitation limitation portion of the final judgment and otherwise affirm.
GLICKSTEIN, POLEN and GROSS, JJ., .concur. . See Alford v. Alford, 594 So. 2d 843 (Fla. 5th DCA 1992); Singer v. Singer, 652 So. 2d 454 (Fla. 4th DCA 1995).
Cases With Similar Vibessemantic neighbors from the corpus
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Rahn v. Rahn, 768 So. 2d 1102 (Fla. 2d DCA 2000)…ircumstances. The former husband is correct that the economic impact of cohabitation may be considered in a petition for modification of alimony. See Springstead, v. Springstead, 717 So. 2d 203, 204 (Fla. 5th DCA 1998); Dibartolomeo v. Dibartolomeo, 679 So. 2d 72, 72-73 (Fla. 4th DCA 1996). However, to support a modification of alimony, a change in circumstances must be substantial. See Pimm, 601 So. 2d at 536. In this case, the evidence established that the former wife’s monthly expenses had been reduced fr…
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Zeballos v. Alba P. Zeballos, 951 So. 2d 972 (Fla. 4th DCA 2007)…A 2004), we determined that the former husband demonstrated a substantial change of circumstances warranting a reduction in alimony where the former wife’s fiancé was paying for almost all of her living expenses. Citing Dibartolomeo v. Dibartolomeo, 679 So. 2d 72, 72-73 (Fla. 4th DCA 1996), we stated that cohabitation may justify the elimination of alimony, “depending on how the new living situation has impacted the alimony recipient’s financial condition and continued need for alimony.” Reno, 884 So. 2d at…
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Suzette Reno v. Reno, 884 So. 2d 462 (Fla. 4th DCA 2004)…dings or at trial. A trial judge may not order that alimony cease simply because the alimony recipient cohabits with another person, even when this arrangement appears to be one consistent with a de facto marriage. See Dibartolomeo v. Dibartolomeo, 679 So. 2d 72, 72-73 (Fla. 4th DCA 1996). However, cohabitation may justify the modification and elimination of alimony, depending on how the new living situation has impacted the alimony recipient’s financial condition and continued need for alimony. Id. at 73.…
Previewing 3 of 6 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Keaton v. Keaton, 634 So. 2d 798 (Fla. 4th DCA 1994)
- Booker T. Birdsong v. State, 310 So. 2d 410 (Fla. 3d DCA 1975)
- Condren v. Condren, 475 So. 2d 268 (Fla. 2d DCA 1985)
- Naugle v. Naugle, 632 So. 2d 1146 (Fla. 5th DCA 1994)
- Singer v. Noreen Singer, 652 So. 2d 454 (Fla. 4th DCA 1995)
- Alford v. Alford, 594 So. 2d 843 (Fla. 5th DCA 1992)
- In re The Marriage of Noel K. MacLaren v. MacLaren, 616 So. 2d 104 (Fla. 1st DCA 1993)
- Millen v. Millen, 658 So. 2d 613 (Fla. 2d DCA 1995)
- Buscemi v. Buscemi, 610 So. 2d 674 (Fla. 2d DCA 1992)