FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND
DISPOSITION THEREOF IF FILED
from the Circuit Court for Orange County, Mike Murphy, Judge.
C. Wilson, of Wilson Law Firm P.L., Orlando, for Appellant.
Jonathan R. Simon, and Jill D. Simon, of The Orlando Family
Firm, Orlando, for Appellee.
Hedden ("Former Wife") appeals the Amended Final
Judgment dissolving her thirty-seven-year marriage to Michael
Hedden ("Former Husband"). She argues that the
trial court erred by not classifying all of the alimony
awarded as permanent, relying solely on Former Husband's
most recent financial affidavit to determine his ability to
pay alimony, and not including future employer-made
retirement contributions in Former Husband's income.
There was no competent, substantial evidence to support an
award consisting of both durational and permanent alimony.
However, the trial court did not abuse its discretion by
relying upon Former Husband's most recent financial
affidavit and his testimony in determining his ability to pay
alimony, nor by excluding employer-made retirement account
contributions from Former Husband's income. Thus, we
reverse in part and affirm in part.
majority of their marriage, Former Wife was a stay-at-home
mother to the parties' two children. She has no special
training, certificates, or degrees, and during those
occasional periods when she was employed-most recently twelve
years prior to trial-she earned approximately $20, 000 per
year. Her medical condition limits her ability to search for
employment. She requested permanent alimony, but agreed that
she could probably be employed at minimum wage.
Husband had been the "primary breadwinner" during
the marriage, earning a relatively stable salary with
fluctuating bonuses that led to his annual income being
between $146, 000 and $191, 000 during the three years prior
to trial. However, his employer replaced bonuses, which were
based on the company's performance, with commissions,
which were based upon Former Husband's personal
performance. This change reduced Former Husband's overall
annual income. In response to Former Wife's request for
alimony, he pointed out that he was less than a year from the
presumptive age of retirement and that each of them would
receive approximately $500, 000 in marital assets through
final judgment of dissolution of marriage, the court found
that Former Wife had a need for alimony and Former Husband
had the ability to pay alimony. After the court imputed
minimum wage to Former Wife, it ordered Former Husband to pay
Former Wife $1000 per month in permanent periodic alimony and
$2700 per month in durational alimony. The durational alimony
was to cease when Former Wife reached the age of sixty-two.
The court found that, at age sixty-two, Former Wife will be
eligible to receive Social Security benefits based on Former
Husband's income. Former Wife filed a motion for
rehearing regarding several issues, but the court denied her
request to revisit the issues on alimony.
Wife asserts that it is improper to award durational alimony
when there is an ongoing need for alimony and argues that the
trial court's decision contradicts the presumption of
permanent alimony in long-term marriages.
a proceeding for dissolution of marriage, the court may grant
alimony to either party, which alimony may be bridge-the-gap,
rehabilitative, durational, or permanent in nature or any
combination of these forms of alimony." § 61.08(1),
Fla. Stat. (2016). "There is a rebuttable presumption
that permanent periodic alimony is appropriate after a
long-term marriage." Motie v. Motie, 132 So.3d
1210, 1213 (Fla. 5th DCA 2014). "Subsection 61.08(4)
establishes a 'rebuttable presumption' that a
marriage having a duration of seventeen years or greater is a
long-term marriage." Taylor v. Taylor, 177
So.3d 1000, 1003 (Fla. 2d DCA 2015).
undisputed that the parties had a long-term marriage. The
trial court reviewed all ten factors identified in section
61.08(2) and found permanent alimony was appropriate, and
that "no other form of alimony is fair and reasonable
under the circumstances of the parties . . . ."
See § 61.08(8), Fla. Stat. (2016).
alimony, which the trial court also awarded, was created to
be "an intermediate form of alimony between
bridge-the-gap and permanent alimony." Nousari v.
Nousari, 94 So.3d 704, 706 (Fla. 4th DCA 2012).
"The purpose of durational alimony is to provide a party
with economic assistance for a set period of time following .
. . a marriage of long duration if there is no ongoing need
for support on a permanent basis, " and it "may be
awarded when permanent periodic alimony is
inappropriate." § 61.08(7), Fla. Stat. (2016).
According to the statutory language in section 61.08(7), a
court cannot award durational alimony if permanent alimony is
appropriate; however, section 61.08(1) and case law allow the
trial courts to award both if justified. See Purin v.
Purin, 158 So.3d 752, 753 (Fla. 2d DCA 2015) (suggesting
that on remand the trial court should award both durational
and permanent periodic alimony to minimize the need for
future litigation should the wife's needs exceed her
actual rather than earning ability after the period of
durational alimony ended). Here, the trial court's
finding of Former Wife's ongoing need for support made
permanent periodic, rather than durational, alimony the
appropriate choice following the thirty-seven-year marriage.
the trial court abused its discretion to the extent that
ordering durational alimony was based on its prediction that
Former Wife would have an increased income by seeking and
receiving Social Security benefits when she reaches sixty-two
years of age. Courts should base alimony awards "on
current existing circumstances, and not on possibilities
likely but as yet unrealized." Winn v. Winn,
669 So.2d 1155, 1157 (Fla. 5th DCA 1996). In Stark v.
Stark, the trial court awarded the wife both durational
and permanent alimony. 192 So.3d 632, 632 (Fla. 5th DCA
2016). However, this Court concluded "that the trial
court abused its discretion in failing to make the entire
$5000 alimony award . . . permanent alimony" after
finding that "the evidence failed to demonstrate that
the Wife's need ...