Murphy v. Murphy
| Decision Date | 06 November 2013 |
| Docket Number | No. 3D11–1604.,3D11–1604. |
| Parties | Nancy B. MURPHY, Appellant, v. Dennis J. MURPHY, Appellee. |
| Court | Florida District Court of Appeals |
Jay M. Levy, Miami; Hershoff, Lupino & Yagel, LLP, and Jay A. Hershoff, Tavernier, for appellant.
Rosenthal Rosenthal Rasco Kaplan, LLC, and Daniel Kaplan, Aventura, and Jeffrey D. Swartz, Riverview, for appellee.
Before SUAREZ, ROTHENBERG and EMAS, JJ.
ROTHENBERG
, J.
We grant the appellee's motion for rehearing, withdraw our former opinion dated October 3, 2012, and substitute the following opinion in its stead.
Nancy Murphy (“former wife”) appeals the trial court's order granting her former spouse Dennis Murphy's (“former husband”) petition for a downward modification of alimony and denying her request for attorney's fees. After conducting an extensive evidentiary hearing and conscientiously weighing the evidence, the trial court concluded that the former wife and Mark Llerena (“Llerena”) were involved in a “supportive relationship” within the meaning of section 61.14(1)(b), Florida Statutes (2011)
, and that a reduction in the former wife's alimony was warranted. Accordingly, the trial court reduced the former husband's alimony payment of $4,200 per month, which is currently 46% of his net salary,1 to $3,500 per month, a $700 per month reduction. Because the trial court correctly interpreted the law, the record evidence supports the trial court's findings, and the $700 per month reduction is wholly reasonable, we affirm the trial court's order granting the former husband's motion for a reduction in his alimony obligation.
On September 14, 2005, the former husband and the former wife entered into a marital settlement agreement, and their marriage was dissolved on November 9, 2005. Pursuant to the marital settlement agreement, the former husband was required to pay the former wife $3,200 in alimony and $1,000 in child support every month until August 1, 2006. Thereafter, the former husband's child support obligation would terminate, and the former husband's alimony obligation would increase to $4,200 per month. The agreement provided that alimony would terminate upon the former wife's marriage or death, or upon the former husband's retirement or his reaching the age of sixty-five, whichever occurred later. At the time of the dissolution, the former wife's adult son and the parties' seventeen-year-old daughter were living with the former wife.
In distributing the assets, the parties agreed to an uneven distribution, with the former wife receiving the marital residence, which was valued at $450,000, but encumbered by a small $15,000 mortgage at the time of the modification hearing, an IRA at Smith Barney, a fixed annuity, a cash value life insurance policy, and an automobile. The former husband received a separate IRA at Smith Barney; his 401(k); a separate cash value life insurance policy; his State of Florida retirement account; and an automobile.
It is undisputed that the former husband made all payments timely and has complied with the terms of the final judgment of dissolution, despite the reduction of his salary and various increases in his expenses, which at the time of the evidentiary hearing included several substantial expenditures. The former husband has remarried, and his wife was living in her home in Broward County, which she could not sell because it was “upside down.” However, because the former husband is a Miami–Dade circuit court judge and must reside in Miami–Dade County, he maintained a separate residence in Miami. The former husband was also financially assisting the former wife's adult son and supporting the parties' adult daughter and her child (the parties' grandchild), who were both living with the former husband's wife in her Broward County home at the time of the evidentiary hearing. Based on the former husband's salary reduction, he was paying the former wife 46% of his net income, compared to the 42% he was paying the former wife when the parties divorced in 2005, despite her decreased expenses and his increased expenses. The record also reflects that at the time of the evidentiary hearing the former husband was driving a 2004 GMC Envoy that had at least 118,000 miles because he could not afford to replace it.
In contrast, the former wife, who was fifty-eight years old at the time of the evidentiary hearing, no longer worked and was living with her boyfriend, Llerena, in the $450,000 former marital home. The monthly mortgage payment on the remaining $15,000 debt was only $400.
The relationship between the former wife and Llerena began in 2008. Thereafter, they established a monogamous, romantic relationship. In March 2009, Llerena began living with the former wife in the former marital home. Although Llerena had full-time employment, he contended he contributed nothing towards the household expenses. He did not pay rent to the former wife and he did not contribute any money towards the utilities or the maintenance of the home. Although he periodically purchased some of the groceries, the former wife primarily paid for the food they consumed and the other products used within the household. According to Llerena, although he lived full-time with the former wife, he only contributed approximately $150 a month towards the relationship, which was spent on food and meals consumed outside of the home. Further, the former wife “loaned” Llerena $1,200 to enable him to purchase an automobile, but at the time of the hearing, the “debt” remained unpaid.
Besides providing Llerena with a home with various amenities—including a pool, and all of the comforts of a home—for the three years preceding the hearing, the former wife converted her son's bedroom into a room for Llerena's two minor children to facilitate Llerena's overnight visitation with his minor children. The former wife purchased the beds and paid for the changes she made for the benefit of Llerena's minor children, and she apparently also paid for the expenses incurred during their stays since there is no evidence that Llerena paid for anything other than $150 per month for food and meals consumed outside of the home.
The trial court found that the former wife and Llerena were involved in a “supportive relationship” within the meaning of section 61.14(1)(b)
, and that based on this finding, section 61.14(1)(b) 3. provided the court with authority to reduce or terminate the former husband's alimony obligation to the former wife. Then the trial court considered the factors listed in section 61.08(2) in determining whether a reduction or termination of alimony was appropriate, as is required under that subsection. After considering all the relevant factors and balancing the equities, the trial court concluded that a $700 per month reduction in the former husband's alimony obligation was warranted. Accordingly, the trial court reduced the former husband's monthly alimony obligation from $4,200 per month to $3,500 per month, awarded him a credit of $2,100 for the overpayment of $700 per month for the three months preceding the issuance of the trial court's order, and ordered that each party bear their own attorney's fees and costs.
The former wife contends that the trial court's order reducing the former husband's alimony obligation must be reversed. We disagree. As the trial court's order is supported by substantial competent evidence and comports with applicable Florida law, the order is affirmed.
Although the parties disagree as to this Court's standard of review, we agree with the appellant and the Second District Court of Appeal that a review of a trial court's decision under section 61.14(1)(b)
is a mixed question of law and fact that requires a mixed standard of review. See
Buxton v. Buxton, 963 So.2d 950, 953 (Fla. 2d DCA 2007). The trial court must first make factual findings based on the evidence presented and then determine whether the facts establish the existence of a “supportive relationship,” which requires an interpretation of the statute and an application of the law to the facts. If the trial court concludes that a “supportive relationship” exists, it has the discretion to reduce or terminate the alimony obligation. Id. Thus, we review the trial court's factual findings to determine whether they are supported by competent substantial evidence; the trial court's interpretation and application of the law should be reviewed de novo; and the exercise of the trial court's discretion should be reviewed for an abuse of discretion. See King v. King, 82 So.3d 1124, 1129 (Fla. 2d DCA 2012)
Section 61.14(1)(a)
authorizes a modification of alimony when “the circumstances or the financial ability of either party changes ....” § 61.14(1)(a) ; see also
King, 82 So.3d at 1131. To obtain a modification under section 61.14(1)(a), the trial court must make a determination that: (1) there was a substantial change in circumstances; (2) the change was not contemplated at the time of the final judgment of dissolution; and (3) the change is sufficient, material, involuntary, and permanent in nature. Pimm v. Pimm, 601 So.2d 534, 536 (Fla.1992). Thus, prior to the enactment of subsection (b) of section 61.14(1) in 2005, to obtain a reduction or the termination of alimony based on unmarried cohabitation, the obligor was required to show a substantial change in circumstances, and unmarried cohabitation created a presumption of changed circumstances. Bridges v. Bridges, 842 So.2d 983, 984 (Fla. 1st DCA 2003).
To find a sufficient change in circumstances to warrant a reduction or the termination of alimony based on cohabitation, a trial court is required to consider whether either of the following two factors is present: “[1] whether the cohabitant provides support to the recipient spouse, or [2] whether the recipient spouse contributes to the support of the...
To continue reading
Request your trial
-
Klokow v. Klokow
...It is also true that alimony may be adjusted if the former spouse is supporting the live-in paramour to some extent. Murphy v. Murphy , 201 So. 3d 18 (Fla. 3d DCA 2013). Here, the record reflects that the former wife is supporting Gutauckis to a certain extent, as evidenced in part by the f......
-
Proveaux v. Proveaux
...the existence of a 'supportive relationship,' which requires an interpretation of the statute and an application of the law to the facts." Id. at 21-22. Appellate review "factual findings to determine whether they are supported by competent substantial evidence; the trial court's interpreta......