Hill v. Hill

• Decision Date: 02 March 2011
• Docket Number: Lower Tribunal No. 89-46739,No. 3D09-590,3D09-590
• Parties: John Allen Hill, Appellant, v. Lucinda McCoy Hill, Appellee.
• Court: Court of Appeal of Florida (US)

John Allen Hill, Appellant,

v.Lucinda McCoy Hill, Appellee.

No. 3D09-590

Lower Tribunal No. 89-46739

Third District Court of Appeal State of Florida

January Term, A.D. 2011

Opinion filed: March 2, 2011

Not final until disposition of timely filed motion for rehearing.

An Appeal from the Circuit Court for Miami-Dade County, Mindy S. Glazer, Judge.

Flora Jackson-Holmes, for appellant.

Michael J. Alman (Fort Lauderdale), for appellee.

Before RAMIREZ, C.J, and CORTINAS and ROTHENBERG, JJ.

CORTINAS, J.

Appellant, John Allen Hill ("the Husband"), seeks review of an initial award of permanent alimony and retroactive alimony to appellee, Lucinda McCoy Hill ("the Wife"), eighteen years after the entry of the Final Judgment. In 1990, a final judgment dissolving the parties' marriage was entered ("Final Judgment"), at which time the court ("the 1990 court") reserved ruling on the issue of alimony, to be "reassessed" upon the Husband's retirement. In 2008, the court ("the 2008 court") entered an order for an initial award of alimony to the Wife.

The question before us is whether the language of the Final Judgment, in which the 1990 court "reserve[d] jurisdiction to determine alimony and to reassess the parties' income in contemplation of [the husband's] retirement contravenes section 61.08(1), Florida Statutes (1990). We hold that it does and, accordingly, reverse the 2008 court's initial determination of alimony eighteen years after the Final Judgment.

In construing the language of a statute, courts are required to first consider the actual language of the statute. Woodham v. Blue Cross & Blue Shield of Fla., Inc., 829 So. 2d 891, 897 (Fla. 2002) (citations omitted); Campbell v. Kessler, 848 So. 2d 369, 371 (Fla. 4th DCA 2003) (finding that a court "must interpret and construe a statute according to the precise language adopted by the legislature.") (quoting Fla. Gulf Health Sys. Agency, Inc. v. Comm'n on Ethics, 354 So. 2d 932, 933 (Fla. 2d DCA 1978)). "[T]he intent of the legislature must guide our analysis, and that intent must be determined primarily from the language of the statute." Hale v. State, 891 So. 2d 517, 521 (Fla. 2004) (citing Miele v. Prudential-Bache Sec. Inc., 656 So. 2d 470, 471 (Fla. 1995)).

The plain language of section 61.08 authorizes the trial court to award alimony in a dissolution action, as long as the award considers "all relevant economic factors." § 61.08(2), Fla. Stat. (1990). The Final Judgment, dated September 28, 1990, compelled the Husband to pay $650 monthly in child support, carry insurance for the Wife and their children, quitclaim the couple's two properties to the Wife, and pay the mortgages on the marital home; however, it did not award any alimony, nor did it consider "all relevant economic factors" supporting an award or denial of alimony.

Prior to entering the Final Judgment, the 1990 court must have first established the Wife's "entitlement to permanent periodic alimony" based on the record. Schmidt v. Schmidt, 997 So. 2d 451, 454 (Fla. 2d DCA 2008); accord Gildea v. Gildea, 593 So. 2d 1212, 1213 (Fla. 2d DCA 1992) (citing Canakaris v. Canakaris, 382 So. 2d 1197 (Fla. 1980)).

Permanent periodic alimony is used to provide the needs and the necessities of life to a former spouse as they have been established by the marriage of the parties. The two primary elements to be considered when determining permanent periodic alimony are the needs of one spouse for the funds and the ability of the other spouse to provide the necessary funds.

Canakaris, 382 So. 2d at 1201 (emphasis added). By not determining that the Wife was in need of alimony in addition to the property and assets she received in the divorce, the 1990 court foreclosed the possibility of awarding the Wife alimony at a later date.

If the 1990 court had made a finding of need and entitlement to an alimony award, but determined that the Husband had no present ability to pay, Florida law would then have "required an award of a nominal amount of permanent alimony to permit the wife to pursue a future increase...." Blanchard v. Blanchard, 793 So. 2d 989, 992 (Fla. 2d DCA 2001); accord Purrinos v. Purrinos, 34 So. 3d 244, 245 (Fla. 3d DCA 2010) (remanding with directions to award wife permanent periodic alimony in a nominal amount "[i]n recognition of the desirability of providing for the real likelihood that... an award [of alimony], although not now appropriate because of the husband's inability to pay, may become so in the future."); Lightcap v. Lightcap, 14 So. 3d 259, 260 (Fla. 3d DCA 2009); Schmidt, 997 So. 2d at 454; Schlagel v. Schlagel, 973 So. 2d 672, 676-77 (Fla. 2d DCA 2008); Bridges v. Bridges, 842 So. 2d 983, 984 (Fla. 1st DCA 2003); Wing v. Wing, 429 So. 2d 782, 783 (Fla. 3d DCA 1983). By failing to consider "all relevant economic factors" supporting an award of alimony and, at minimum, awarding nominal permanent alimony, the 1990 court failed to "accomplish two goals: first, [to] permit the wife to petition the trial court to pursue a future increase in permanent alimony..., andsecond, [to] preserve the jurisdiction of the trial court to revisit the matter as the parties go on with their new lives." Nourse v. Nourse, 948 So. 2d 903, 904 (Fla. 2d DCA 2007).

Recently, the First District considered the precise issue before us in Gergen v. Gergen, 48 So. 3d 148 (Fla. 1st DCA 2010). In Gergen, the trial court "stated that it 'considers permanent periodic alimony appropriate, ' that the former wife 'has a need, ' and that former husband 'has no current ability to pay." Id at 150. Thus, Gergen is even more compelling than our case insofar as the trial court there made certain findings of fact concerning need and entitlement to alimony while, here, the trial court made none.¹ See id. at 149-50. However, "[i]nstead of granting or denying permanent periodic alimony, the [trial] court reserved jurisdiction 'to award such alimony in the future if the circumstances justify that award.'" Id. The First District in Gergen noted that "[t]he issue of permanent periodic alimony was ripe for determination and thus the circuit court was obligated to rule on the matter without reserving jurisdiction and deferring decision for a future date." Id. (citing Collinsworth v. Collinsworth, 624 So. 2d 287 (Fla. 1st DCA 1993)). Reversing the trial court's reservation of jurisdiction and remanding for either a grant or denial of permanent periodic alimony "based uponspecific findings of fact or a finding of inapplicability for each of the factors listed in section 61.08(2)...", the First District held that "[a]n award of nominal permanent periodic alimony, if the trial court finds such an award warranted, will preserve jurisdiction of the court to revisit the matter if the parties' respective needs and abilities change substantially." Gergen, 48 So. 3d at 150-51 (citing Biskie v. Biskie, 37 So. 3d 970 (Fla. 1st DCA 2010) (finding that an award of nominal permanent alimony "would permit the wife to petition the trial court to pursue an increase in permanent alimony should the husband's income rebound.... [and] it would clearly preserve the jurisdiction of the trial court to revisit the matter if the parties' respective financial situations change.")) Even in dissent, Judge Kahn acknowledged that the "case must be reversed on the preservation of alimony... because the trial court did not apply a temporal constraint to such reservation." Id. at 151 (Kahn, J., dissenting).

The situation presented for our review also parallels Fleck v. Fleck, 958 So. 2d 1043, 1044 (Fla. 2d DCA 2007), except in that case, the trial court explicitly "found that the [w]ife 'may have a need for alimony' but that 'the [h]usband does not have the current ability to pay.'" The court ordered that the husband "shall not be obligated to pay the [w]ife any alimony at this time." Id. The Second District noted that "[d]espite the implication in the amended final judgment that the parties' circumstances might change, the trial court did not reserve jurisdiction by means ofan award of nominal permanent alimony that would enable it to meet the [w]ife's need for support in the future." Id. (citing Cunningham, 930 So. 2d at 720-21); Blanchard, 793 So. 2d at 990; see also Munger v. Munger, 249 So. 2d 772-73 (Fla. 4th DCA 1971) ("$1.00 per year was entirely consistent with the evidence which showed both the need of the wife and the ability of the husband to pay... [and was] simply a reservation of jurisdiction over the issue of periodic alimony.").

In its Final Judgment, the 1990 court failed to make any finding of need or entitlement to alimony but, nevertheless, attempted to "reserve[] jurisdiction to determine alimony and to reassess the parties' income in contemplation of the [husband's] retirement." The trial court had no authority to do this. A court may not reserve jurisdiction for a future determination of need and entitlement to alimony without originally making the statutorily required findings and awarding, at least, a nominal amount of permanent alimony or, at the very minimum, establishing a reasonable time limit upon the reservation of the alimony award. Gergen, 48 So. 3d 148; See Perkovich v. Humphrey-Perkovich, 2 So. 3d 348, 351 (Fla. 2d DCA 2008); Herman v. Herman, 889 So. 2d 128 (Fla. 1st DCA 2004); Zohourian v. Zohourian, 829 So. 2d 256, 257 (Fla. 3d DCA 2002); Castillo v. Castillo, 626 So. 2d 1035, 1036 n.1 (Fla. 3d DCA 1993); Ferguson v. Ferguson, 243 So. 2d 439, 440 (Fla. 3d DCA 1971). Here, the 1990 court did neither.

We are aware that in Rey v. Rey, 755 So. 2d 181 (Fla. 3d DCA 2000) we stated, in a one paragraph opinion, that the trial court "should have reserved jurisdiction to consider an alimony award in the future." Rey, 755 So. 2d at 181. Although, in Rey, we did not elaborate that the trial court must make the required statutory findings of need and entitlement to alimony and, at minimum, award nominal alimony to retain jurisdiction, a plethora of case...