Duttenhofer v. Duttenhofer

• Decision Date: 04 June 1985
• Docket Number: No. 83-2786,83-2786
• Citation: 10 Fla. L. Weekly 1374,474 So.2d 251
• Parties: 10 Fla. L. Weekly 1374 Patience DUTTENHOFER, Appellant, v. D. Sennett DUTTENHOFER, Appellee.
• Court: Florida District Court of Appeals

Page 251

474 So.2d 251

10 Fla. L. Weekly 1374

Patience DUTTENHOFER, Appellant, v. D. Sennett DUTTENHOFER, Appellee.

No. 83-2786.

District Court of Appeal of Florida,

Third District.

June 4, 1985.

Rehearing Denied July 16, 1985.

Podhurst, Orseck, Parks, Josefsberg, Eaton, Meadow & Olin and Joel S. Perwin, Miami, for appellant.

Fine, Jacobson, Block, England, Klein, Colan & Simon and Irwin J. Block and Linda Ann Wells, Miami, for appellee.

Julia Dawson, North Miami, for National Organization for Women, as amicus curiae.

Before HENDRY, BASKIN and DANIEL S. PEARSON, JJ.

DANIEL S. PEARSON, Judge.

The issue presented in this appeal is whether the trial court abused its discretion in failing to compensate the appellant, in the form of greater alimony or other monetary award, for material losses she incurred by virtue of becoming married. ¹ Specifically, the appellant contends that the judgment dissolving the marriage, which included an award to her of $7,500 rehabilitative alimony, wrongly failed to credit her for having sacrificed a well-paying job, with its attendant perquisites, and widow's benefits received on account of the death of her first husband.

A few months prior to her second marriage, the appellant, an experienced and well-paid legal secretary, accepted employment as administrative assistant to the Commissioner of Social Security in Washington, D.C., a position which paid a salary of $27,000 per year and provided health insurance and a government pension. At the time, the appellant was also receiving a pension having a present value of $126,140.97, paid in monthly installments of $1,088 under the Delta Pilot Disability and Survivorship Plan on account of the death of her first husband. The Plan provided that these widow's benefits were to terminate upon her remarriage. The appellee, a successful businessman, had extensive holdings and a net worth of approximately one million dollars. Although both parties were previously married and both in their forties, they did not discuss what their respective financial contributions to the marriage would be or agree upon the financial ramifications of dissolution. The marriage lasted less than ten months.

Of the statutory factors which guide the trial court in its determination to award alimony, see § 61.08, Fla.Stat. (1983), ² only one--that "[t]he court may consider any other factor necessary to do equity and justice between the parties"--could arguably support the claim that premarital sacrifices, as distinguished from those made during the marriage, are compensable upon dissolution. That the remaining statutory factors focus solely on post-marital conditions, contributions, and sacrifices persuade us that the power of a court to "consider any other factor necessary to do equity and justice between the parties" was not intended to encompass the consideration of premarital sacrifices.

The fact that the voluntary surrender of a remunerative job for a less remunerative one or none at all is recognized as an equitable factor which may be considered in awarding alimony, see, e.g., Urban v. Urban, 424 So.2d 22 (Fla. 3d DCA 1982); Monzon v. Monzon, 349 So.2d 195 (Fla. 3d DCA 1977); Brook v. Brook, 289 So.2d 766 (Fla. 3d DCA), cert. denied, 300 So.2d 895 (Fla.1974), is not inconsistent with our view that a forfeiture which occurs upon marriage cannot be so considered. ³ Where the partners to a marriage, whether in contemplation of it or during it, mutually decide that it will be beneficial to the marriage relationship for one of the partners to surrender or change his or her employment, the decision, like any other bilateral decision made in the name of and to foster the good of the marriage, may be characterized as one intrinsic to the marital relationship. A spouse's complete or partial voluntary surrender of employment is inextricably connected to his or her ability to affirmatively contribute other services to the marriage, "including, but not limited to, services rendered in homemaking, child care, education and career building of the other party," § 61.08(f), Fla.Stat. (1983). Such sacrifice of employment, even if fortuitously made before the marriage, has benefits which accrue during the marriage, and thus is quite properly a consideration when awarding alimony.

In contrast, the forfeiture of the widow's benefits is but a legal consequence of the event of the remarriage. Unlike the decision to relinquish employment, the decision to enter into the remarriage and forfeit widow's benefits is one which rests solely with the prospective wife. When the prospective wife makes this unilateral decision, she chooses between remarriage and a continuation of her widow's benefits from her first marriage. Cf. Merrill v. Merrill, 357 So.2d 792, 793 (Fla. 1st DCA 1978) (holding that wife's sacrifice of widow's benefits, though in one sense "a contribution to the marriage, ... was not a contribution of material resources to the marriage," so as to be recompensable to the wife as an offset to the award to the husband of a special equity). The only way in which this decision can become one which can be said to have been made by both the prospective wife and husband is if they enter into an antenuptial agreement in which the husband undertakes to indemnify the wife in whole or in part for her loss of widow's benefits and thereby induces her to choose remarriage. We reject any suggestion that such an undertaking is implicit in the fact of the marriage. By assenting to marriage, the husband and wife undertake to support one another, not to be the guarantors of all about-to-be-cancelled debts due the other from a prior marriage. ⁴

While it may be said that to compel the appellant and others similarly situated to make the sometimes difficult choice between remarriage and widow's benefits might deter remarriage, it may also be said that to impose upon the appellee the obligation to pay these benefits not only would deter remarriage, but unfairly create for the parties an antenuptial agreement without the assent of one of the parties. ⁵

Florida's "heart balm" legislation, see § 771.04, Fla.Stat. (1983), ⁶ which abolished, inter alia, the cause of action for breach of promise to marry, ⁷ lends further support for precluding the trial court from considering the appellant's forfeited Delta pension in making the award of alimony. Before the enactment of Section 771.04, damages recoverable for breach of promise to marry included loss of financial or social benefits which would have accrued to plaintiff upon marriage, business losses and expenses incurred in preparation for the marriage, as well as loss of plaintiff's health, reputation, social condition and future prospects of marriage. Critics of the breach of promise action noted that it wrongfully permitted under the guise of contract an action that was essentially tortious and penal in nature. See Stanard v. Bolin, 88 Wash.2d 614, 565 P.2d 94 (1977) (en banc).

In our view, it would be equally wrong to permit in the context of a no-fault dissolution proceeding an action essentially tortious and penal in nature seeking damages for the breach of the appellee's implicit promise (the same one that is hopefully made by all persons entering into a marriage) that the marriage will last, that is, the appellant would receive the appellee's financial support for the rest of her life as a quid pro quo for the forfeiture of her widow's benefits. See Mims v. Mims, 305 So.2d 787 (Fla. 4th DCA 1974); Gaden v. Gaden, 29 N.Y.2d 80, 323 N.Y.S.2d 955, 272 N.E.2d 471 (1971). See also Stanard v. Bolin, 565 P.2d 94 (dissenting opinion). As our sister court has stated:

"The expectation of either party at the outset of the creation of the marital relationship and the (financial) change of position as a result of such expectation is not a viable premise upon which property rights of the parties should be adjudicated. The creation of the marital relationship in and of itself involves a change of position for both parties.

"If dissolution becomes the inevitable result, despite the efforts of the parties and in spite of their respective changes in position, the contributions of the parties (or their change of position) made with the expectation of success cannot and should not be measured in a monetary form. Life itself is a kaleidoscope of changing positions with the expectation of success and happiness and no guarantee of monetary reward. So, too, marriage has its expectations and its share of uncertainties in longevity and success. Therefore, the adjudication of the rights of parties upon dissolution should not be measured or gauged by any type of 'reward or reimbursement' concept."

Hanzelik v. Hanzelik, 294 So.2d 116, 119 (Fla. 4th DCA 1974) (emphasis in original).

The vision of marital partners as "equals" is impaired when an alimony award is based upon "one party's 'change of position' or 'expectation' as to the likelihood of the success of the marriage, inasmuch as both parties are equally involved in this change or expectation." 294 So.2d at 119.

Particularly pertinent here is that heart balm legislation has been held to apply not only to causes of action for damages flowing from premarital sacrifices owing to a broken marriage promise, but also to actions seeking similar elements of damages brought after a valid marriage ceremony was performed. See, e.g., Boyd v. Boyd, 39 Cal.Rptr. 400; Grunberg v. Grunberg, 199 Misc. 249, 99 N.Y.S.2d 771 (Sup.Ct.1950); Bressler v. Bressler, 133 N.Y.S.2d 38 (Mun.Ct.1954). See also Langley v. Schumacker, 46 Cal.2d 601, 297 P.2d 977 (1956). Although the purposes underlying the heart balm acts "are less apparent where the defendant has not jilted his bride at the church door but has led her to and from the altar," Boyd v. Boyd, 39 Cal.Rptr. at 402, the theory and gravamen of the action is the same whether or not a marriage actually occurred. Thus, the appellant's effort to recover her terminated...