Levy v. Levy, No. 2D03-2903

• Decision Date: 29 April 2005
• Docket Number: No. 2D04-548., No. 2D03-2903
• Citation: 900 So.2d 737
• Parties: Mary Janette LEVY, n/k/a Mary Janette Zimmerman, Appellant, v. Leslie V. LEVY, Appellee.
• Court: Florida District Court of Appeals

900 So.2d 737

Mary Janette LEVY, n/k/a Mary Janette Zimmerman, Appellant, v. Leslie V. LEVY, Appellee.

Nos. 2D03-2903, 2D04-548.

District Court of Appeal of Florida, Second District.

April 29, 2005.

Karol K. Williams of Karol K. Williams, P.A., Tampa, for Appellant.

Jane H. Grossman of Law Office of Jane H. Grossman, St. Petersburg, for Appellee.

WALLACE, Judge.

Mary Janette Zimmerman, formerly known as Mary Janette Levy (the Wife), seeks review of the financial provisions of the final judgment that dissolved her short-term marriage to Leslie V. Levy (the Husband). The Wife also challenges the trial court's order that denied her timely motion for an award of attorney's fees and costs payable by the Husband. There is no cross-appeal. We reverse the final judgment in part and remand for further proceedings on the question of permanent periodic alimony in favor of the Wife and for the adjustment of the scheme of equitable distribution. We also reverse the order on fees and costs and remand for the entry of an award of attorney's fees and costs in favor of the Wife consistent with the Wife's need and the Husband's ability to pay. In addition, we hold that the trial court was not authorized to enter a substantive amendment to the final judgment more than ten days after the entry of the final judgment and after its denial of the Wife's motion for rehearing, and we vacate the amendment. We affirm the final judgment in all other respects.

The Facts

The parties met in 1997. They began living together in 1999, and they were married in January 2000. The parties initially lived in Mississippi. The Husband and the Wife are both college graduates. The Husband was employed as a district sales manager for Georgia-Pacific Corporation. The Wife worked in the human resources department of a bank where she earned $42,000 per year. Although the parties did not have any children, the Husband has a son by a prior marriage for whom he pays $1110 per month as child support.

During Memorial Day Weekend 2000, the Wife experienced severe back pain after lifting an ice chest into a truck. In August 2000, she was diagnosed with spondylolysis,¹ spondylolisthesis,² and a nerve damage disorder. These conditions caused the Wife to suffer from severe, chronic pain. As a result, the Wife resigned her position at the bank on the recommendation of her physician. The Wife subsequently underwent two major surgeries to repair the damage to her back, but these surgeries were largely unsuccessful. The Wife subsequently developed pseudoarthrosis³ in her back and degenerative disk disease secondary to her spondylolysis and spondylolisthesis. The Wife's physicians offered her a third surgery as one of the options available to her to address her severe back problems, but the Wife had not had the third surgery at the time of the final hearing. In April 2001, the Wife was hospitalized and diagnosed with ulcerative colitis.⁴

Because of her back and bowel ailments, the Wife became disabled and was unable to undertake even part-time employment. In November 2002, the Social Security Administration ruled that the Wife was totally disabled as to employment. The Social Security Administration awarded the Wife disability benefits of $1219 per month. After a mandatory deduction of $59 for Medicare insurance, the Wife receives a net disability check of $1160 monthly.

In August 2001, the parties relocated from Mississippi to Florida because of the Husband's job transfer. In December 2001, they purchased a home in Tampa. The Wife filed the petition for dissolution of marriage on June 5, 2002, and the parties separated approximately three months later. Thus the marriage lasted only two years and four months.

At the time of the final hearing in May 2003, the Husband was in good health. He was earning a base salary of approximately $8000 per month. Georgia-Pacific provided the Husband with a company car for his use and various other fringe benefits. The Husband also consistently received quarterly bonuses. These performance-based bonuses varied in amount. For the year 2001, the Husband's federal income tax return reflected a total gross income of $125,285.

On the other hand, the Wife's physical condition had not improved at the time of the final hearing, and she remained unemployed. However, the Husband testified that the restrictions on the Wife's activities were not as extensive as she claimed. He also presented the testimony of a private investigator who had made a surveillance tape of the Wife as she dragged empty garbage cans from the curb to the house, drove her automobile around Tampa, and exercised at a local YMCA to strengthen her back in accordance with her doctor's instructions. Nevertheless, the Husband did not present any testimony from a physician, vocational counselor, rehabilitation therapist, or other expert witness that the Wife was capable of being employed in any capacity. The trial court made no finding that the Wife was capable of working and did not impute any income to her.

The Wife's basic needs for living and medical expenses substantially exceeded the $1160 disability payment she received from social security. Pursuant to an order for temporary support, the Wife resided in the marital home during the pendency of the dissolution proceedings, and the Husband paid the mortgage payment and basic household expenses. The Husband also paid the Wife $1000 per month in temporary alimony until the Wife began to receive her monthly disability check. On appeal, the Wife claims that she needs a minimum permanent alimony award of $3000 monthly, net of taxes, to meet her basic support and other needs.

The Final Judgment

In the final judgment, the trial court denied the Wife's claim for permanent alimony. The trial court instead awarded the Wife "bridge the gap" alimony of $1000 per month for twelve months. The parties settled most of the equitable distribution issues in a pretrial stipulation. The Husband received the marital home as part of his equitable distribution, but the home was subject to a substantial mortgage that he was required to pay. The Husband retained approximately $92,000 in nonmarital assets. The Wife received an eleven-year-old car, miscellaneous personal property, and an equalization payment of approximately $16,000 from the Husband. The Wife's nonmarital assets were negligible. In a subsequent order on fees and costs, the trial court declined to award the Wife any portion of her attorney's fees and costs from the Husband, finding that the "Wife's litigation conduct was spurious." The Wife timely appealed the final judgment and the order on fees and costs.

Permanent Periodic Alimony

The Wife's claim for permanent alimony was the major contested issue at the trial of this case. In the final judgment, the trial court concluded that the Wife was not entitled to an award of permanent periodic alimony based on three rationales: (1) the Wife's relative youth at age 32; (2) the Wife's entitlement to social security disability benefits in the net amount of $1160 per month; and (3) the absence of any evidence that the Husband contributed to the Wife's disabilities.

An award of permanent alimony is generally inappropriate in a short-term marriage. Cullen v. Cullen, 884 So.2d 304, 305 (Fla. 2d DCA 2004); Gallinar v. Gallinar, 763 So.2d 447, 449 (Fla. 3d DCA 2000); Segall v. Segall, 708 So.2d 983, 987 (Fla. 4th DCA 1998). However, the short duration of the marriage does not preclude such an award. Cullen, 884 So.2d at 305; Volosin v. Volosin, 382 So.2d 733, 735-36 (Fla. 2d DCA 1980); Echols v. Elswick, 638 So.2d 581, 582 (Fla. 1st DCA 1994). In considering the propriety of an award of permanent alimony in a short-term marriage, the pertinent inquiry is whether there would be "any genuine inequity created by the dissolution of the marriage without permanent alimony." Kremer v. Kremer, 595 So.2d 214, 215 (Fla. 2d DCA 1992) (citing Geddes v. Geddes, 530 So.2d 1011 (Fla. 4th DCA 1988)); see also Green v. Green, 672 So.2d 49, 51 (Fla. 4th DCA 1996)

; Cornell v. Smith, 616 So.2d 629, 630 (Fla. 4th DCA 1993). Or, to define the problem further, the question is whether the spouse requesting permanent alimony is "without the means of self[-]support, as a result of anything that has transpired during the marriage." Kremer, 595 So.2d at 216 (quoting Spencer v. Spencer, 590 So.2d 553, 554 (Fla. 1st DCA 1991)); see also Reeves v. Reeves, 821 So.2d 333, 334-35 (Fla. 5th DCA 2002); Wright v. Wright, 613 So.2d 1330, 1333 (Fla. 4th DCA 1992).

The short-term marriage cases in which awards of permanent alimony have been deemed appropriate have generally involved requesting spouses who were incapable of self-support by reason of a physical or mental disability. See, e.g., Cullen, 884 So.2d at 305

(reversing denial of permanent alimony when the wife suffered from breast cancer and other physical maladies); Simzer v. Simzer, 514 So.2d 372 (Fla. 2d DCA 1987) (affirming award of permanent alimony when the wife was nonfunctional as a result of depressive neurosis of severe magnitude); Volosin, 382 So.2d at 736 (remanding for an award of permanent alimony when the wife was in questionable health); Lagstrom v. Lagstrom, 662 So.2d 756 (Fla. 4th DCA 1995) (affirming award of permanent alimony when the wife suffered from depressive state which rendered her nonfunctional). However, spouses leaving short-term marriages have also received awards of permanent alimony for reasons unrelated to their health. See Reeves, 821 So.2d at 335 (holding that the wife was entitled to receive permanent alimony because she was required to stay home to care for parties' severely disabled child); Driscoll v. Driscoll, 547 So.2d 1247 (Fla. 4th DCA 1989) (remanding for an award of permanent alimony because the marriage had resulted in wife's loss of alimony payments from her previous marriage). An award of permanent alimony is not appropriate in a short-term marriage solely to...