Bruce v. Bruce

• Decision Date: 02 February 2018
• Docket Number: Case No. 5D15–2136
• Citation: 243 So.3d 461
• Parties: Robin Henningsen BRUCE, Appellant, v. Jerome Boyd BRUCE, Appellee.
• Court: Florida District Court of Appeals

243 So.3d 461

Robin Henningsen BRUCE, Appellant,

v.Jerome Boyd BRUCE, Appellee.

Case No. 5D15–2136

District Court of Appeal of Florida, Fifth District.

Opinion filed February 2, 2018

Christine J. Lomas, of LomasLaw, P.A., Winter Park, and Heather Morcroft, Winter Park, for Appellant.

Christopher J. Shipley, of Shipley Law Firm, Mount Dora, for Appellee.

ORFINGER, J.

Robin H. Bruce, the former wife, appeals the trial court's final judgment of dissolution of marriage, alleging the trial court erred by failing to award alimony and in determining school designation as well as refusing to enforce a purported marital settlement agreement. We affirm without discussion the trial court's determination that the parties did not enter into a binding marital settlement agreement. However, we find merit in the former wife's remaining two issues.

The former wife and the former husband, Jerome Boyd Bruce, were married for twenty years before separating. They had one minor child at the time the court entered the final judgment. During the marriage, the former wife was the primary caretaker of the parties' children and usually worked in customer service at night and on weekends, earning $10,000–$15,000 per year. The former wife worked these hours because the former husband wanted her to be at home with their three children. She has a college degree, but testified she would need retraining, as her teaching certification was no longer valid. The former wife is hearing impaired, has permanent arthritis, and was, at the time of trial, on medication for a broken ankle, which required a plate and seven screws. She is also a three-time cancer survivor and has herniated discs that are fused as a result of a bike accident.

The former husband is the regional branch manager of a library in Lake County. From 2009 until September 2012, he earned $75,400 annually, but since October 1, 2012, he has been earning $71,635 annually. The former husband testified that the former wife moved out of the marital home and into a rental residence with her new boyfriend because it was cheaper to live with him. The former wife confirmed that she moved out of the marital home in July 2012, explaining that after she broke her ankle, she could no longer afford to take care of the marital home or herself. However, she denied that she was in a supportive relationship with her boyfriend. She admitted that she leases a two-bedroom ($1,145 per month) house with her boyfriend, but indicated she owes him back rent that she was unable to pay due to her injury. She also testified that she pays her own car insurance, gas, and for her son's clothing, along with the water and phone bills, groceries, and pool maintenance. She pays the electric bill, which is in the boyfriend's name, in exchange for the boyfriend covering her part of the rent. The former wife and her boyfriend have no joint bank accounts, own no joint real or personal property, and have no joint investments.

In its final judgment, the trial court found that the former wife had the need for alimony and the former husband had the ability to pay alimony. However, it refused to award alimony because the former "wife has changed the nature of the request for alimony by entering into a ‘supportive relationship’ since separation." The former wife challenges the trial court's refusal to award her ongoing alimony because she was in a supportive relationship.

The evidence was undisputed that at the time of the final hearing, the former husband was earning $71,000 annually, while the former wife's income was much lower—between $10,000 and $15,000 annually. And, although the trial court found that the former wife has "two college degrees, skills and reasonably good health," it failed to impute any income to her. The evidence was also undisputed that the parties had been married for twenty years. A parties' twenty-year marriage is considered "long-term," raising a rebuttable presumption of entitlement to permanent alimony. See Alcantara v. Alcantara, 15 So.3d 844, 845–47 (Fla. 3d DCA 2009) ; see also § 61.08(4), Fla. Stat. (2015) ("For purposes of determining alimony, there is a rebuttable presumption that a ... long-term marriage is a marriage having a duration of 17 years or greater."). However, the trial court's final judgment does not mention the long-term marriage presumption.

A review of a trial court's decision under section 61.08, Florida's alimony statute, is a mixed question of law and fact that requires a mixed standard of review. Gregory v. Gregory, 128 So.3d 926, 927 (Fla. 5th DCA 2013). We conclude it was not error for the trial court to consider the former wife's allegedly supportive relationship because section 61.08(2)(j), Florida Statutes (2015), permits the trial court to consider "[a]ny other factor necessary to do equity and justice between the parties" when determining a proper award of alimony, and that consideration is dependent upon the circumstances of each particular case. See generally Keyser v. Keyser, 204 So.3d 159, 161–62 (Fla. 1st DCA 2016) (considering evidence regarding alleged supportive relationship during appeal of final judgment of dissolution). However, the trial court was required to make findings regarding the factors outlined in section 61.08(2) before concluding that the former wife was not entitled to alimony.¹

"A supportive relationship is a relationship that ‘takes the financial place of a marriage and necessarily decreases the need of the obligee.’ " Overton v. Overton, 34 So.3d 759, 761 (Fla. 1st DCA 2010) (quoting French v. French, 4 So.3d 5, 6 (Fla. 4th DCA 2009) ). Such support is equivalent to a marriage and allows a reduction in alimony. Overton, 34 So.3d at 761 ; French, 4 So.3d at 8. However, financial support alone does not define a supportive relationship. Overton, 34 So.3d at 761 ; see Linstroth v. Dorgan, 2 So.3d 305, 306 (Fla. 4th DCA 2008) ; Buxton v. Buxton, 963 So.2d 950, 955 (Fla. 2d DCA 2007). Instead, the length and nature of the live-in relationship are also significant factors for the trial court to consider. Only those relationships that are substantially equivalent to a remarriage warrant a reduction of alimony. Buxton, 963 So.2d at 955. Thus, if the court decides that a supportive relationship exists, it has the discretion to reduce or eliminate the alimony obligation under section 61.08(2). But this should be done with caution and only when the supportive relationship is equivalent to a marriage.

In the instant case, the trial court did not make any findings regarding the nature and extent of the former wife's supportive relationship, or how that relationship diminished her need, permanently, for alimony. On remand, if the trial court determines that the former wife is in a supportive relationship, it must determine how, and to what extent, that relationship mitigates the former wife's need for alimony. See Keyser, 204 So.3d at 161–62 (holding that trial court abused discretion in denying...