ELENA D. FLECK, N/K/A ELENA D. FRANCO, APPELLANT,
v.
RANDALL J. FLECK, APPELLEE
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In this marital dissolution appeal, the Florida Second District Court of Appeal reversed the trial court's denial of all alimony to the wife and remanded for reconsideration of whether nominal permanent alimony is warranted. Although the court found no presumption in favor of permanent alimony in an eleven-year 'gray area' marriage, the substantial disparity in earning capacity between the parties and the wife's demonstrated need warranted at least consideration of a nominal award to preserve jurisdiction for future circumstances.
The trial court erred by failing to consider whether an award of nominal permanent alimony was warranted. The court reversed the denial of alimony and remanded for the trial court either to find that nominal permanent alimony is inappropriate or to award the wife nominal permanent alimony sufficient to preserve jurisdiction for future changed circumstances.
[1] In a marriage falling into the "gray area" between short-term and long-term, there is no presumption in favor of permanent alimony.
[2] A trial court should consider awarding nominal permanent alimony to reserve jurisdiction for future alimony needs when there is a likelihood of a change in circumstances.
Previewing 2 of 4 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“the trial court erred by omitting to consider whether an award of nominal permanent alimony to the Wife was warranted”
Establishes the core error—the trial court failed to even consider the nominal alimony option despite evidence supporting it.
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Join FLexlaw to unlock all legal intelligenceThe parties were married for eleven years. The wife's sole income source is an imputed wage of $10 per hour based on a college degree in marketing tha…
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WALLACE, Judge.
Elena D. Fleck, now known as Elena D. Franco, (the Wife) challenges multiple provisions of the amended final judgment that dissolved her marriage to Randall J. Fleck (the Husband). We reverse that portion of the amended final judgment that denied the Wife any permanent alimony and remand for the trial court to consider whether an award of nominal permanent alimony to the Wife is warranted. In all other respects, we affirm the amended final judgment.
From the date of the parties’ marriage until the petition for dissolution was filed, the marriage lasted eleven years.
The trial court correctly ruled that this eleven-year marriage fell into the “gray area.” See Welch v. Welch, 951 So. 2d 1017, 1019 (Fla. 5th DCA 2007) (identifying an indefinite period of time — or “gray area” — that falls somewhere between a short-term marriage and a long-term marriage).
As a result, there was no presumption in favor of permanent alimony. See Walker v. Walker, 818 So. 2d 711, 713 (Fla. 2d DCA 2002).
Next, the trial court found that the Wife “may have a need for alimony” but that “the Husband does not have the current ability to pay.” The trial court ordered that the Husband “shall not be obligated to pay the Wife any alimony at this time.” (Emphasis added.) Despite the implication in the amended final judgment that the parties’ circumstances might change, the trial court did not reserve jurisdiction by means of an award of nominal permanent alimony that would enable it to meet the Wife’s need for support in the future. See, e.g., Cunningham v. Cunningham, 930 So. 2d 719, 720-21 (Fla. 2d DCA 2006) (reversing the final judgment and remanding for the trial court to enter an amended final judgment awarding nominal permanent alimony of $1 per month to the wife where the husband was earning substantially less than his past earnings but he expected that his income would increase in the near future to what he had historically earned); Blanchard v. Blanchard, 793 So. 2d 989, 990 (Fla. 2d DCA 2001) (finding that the trial court abused its discretion “when it failed to award the wife $1 in permanent periodic alimony to reserve her future right to alimony in light of the husband’s work history during [the parties’] long-term marriage”).
Based on the trial court’s findings, the Wife’s sole source of income is from her imputed wage of $10 per hour predicated on a college degree in marketing, which the Wife had not used since the beginning of the marriage. Thus the Wife has an earning capacity of approximately $20,800 per year, while the Husband earns over $225,000 per year. The Husband’s current inability to pay alimony stems from his status as the primary residential parent for the parties’ six children and from the assignment to him of almost all of the parties’ substantial marital indebtedness.
We have no reason to question the trial court’s findings of fact on these matters.
However, we do conclude that the trial court erred by omitting to consider whether an award of nominal permanent alimony to the Wife was warranted. See Yitzhari v. Yitzhari, 906 So. 2d 1250, 1256 (Fla. 3d DCA 2005) (stating that in “a gray area marriage, disparate earning capacity becomes a significant factor in deciding whether permanent ... alimony is appropriate”). “‘[T]he rule, generally, is that where there is a likelihood of a change in circumstances in the future that would warrant an award of alimony, the court should retain jurisdiction.’ ” Esteva v. Rodriguez, 913 So. 2d 684, 686 (Fla. 3d DCA 2005) (quoting Roy v. Roy, 522 So. 2d 75, 76 (Fla. 4th DCA 1988)).
Despite the parties’ substantially disparate earning capacities and the Wife’s need for alimony, it does not appear that the trial court considered the possibility of an award of nominal permanent alimony to the Wife.
Accordingly, we reverse the portion of the amended final judgment that denied the Wife any alimony, and we remand this case for the trial court either to find that an award of nominal permanent alimony is not appropriate or to make such an award to the Wife.
We affirm the amended final judgment in all other respects.
Affirmed in part, reversed in part, and remanded.
DAVIS, J., and THREADGILL, EDWARD F., Senior Judge, Concur.
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Zarycki-Weig v. Weig, 25 So. 3d 573 (Fla. 4th DCA 2009)…ay area” and the evidence did not support a likelihood that there would be a change in the parties’ financial circumstances that would support an award of alimony to the wife. All of the cases cited by the wife, with the exception of Fleck v. Fleck, 958 So. 2d 1043 (Fla. 2d DCA 2007), and Esteva, involve long-term marriages where there is a presumption in favor of permanent alimony. The parties’ fifteen-year marriage, which included four years during which the parties were separated, is a “gray area” for which…1 / 2
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Schmidt v. Drew D. Schmidt, 997 So. 2d 451 (Fla. 2d DCA 2008)…2008) (holding that the trial court abused its discretion by failing to award nominal permanent periodic alimony to the wife so that the court could revisit the claim if the wife was unable to secure employment after rehabilitation); Fleck v. Fleck, 958 So. 2d 1043, 1044 (Fla. 2d DCA 2007) (“‘[T]he rule, generally, is that where there is a likelihood of a change in circumstances in the future that would warrant an award of alimony, the court should retain jurisdiction.’ ”) (quoting Esteva v. Rodriguez, 913 So.…
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Biskie v. Biskie, 37 So. 3d 970 (Fla. 1st DCA 2010)…e has no current ability to pay, the trial court should award a nominal sum of permanent periodic alimony, which will give the court jurisdiction to reconsider the award should the parties’ financial circumstances change.”). See also Fleck v. Fleck, 958 So. 2d 1043 (Fla. 2d DCA 2007) (finding the trial court erred by failing to consider whether an award of nominal permanent alimony was warranted where the parties had disparate earning capacities and the wife had a need for alimony). In the instant case, an aw…
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
- Blanchard v. Maran L. Blanchard, 793 So. 2d 989 (Fla. 2d DCA 2001)
- Walker v. Walker, 818 So. 2d 711 (Fla. 2d DCA 2002)
- Yitzhari v. Eli Yitzhari, 906 So. 2d 1250 (Fla. 3d DCA 2005)
- ROY v. ROY, 522 So. 2d 75 (Fla. 4th DCA 1988)
- Marina Esteva v. Rodriguez, 913 So. 2d 684 (Fla. 3d DCA 2005)
- Welch v. Dedra D. Welch, 951 So. 2d 1017 (Fla. 5th DCA 2007)
- Cunningham v. Cunningham, 930 So. 2d 719 (Fla. 2d DCA 2006)