Appellate court trends in permanent alimony for "gray-area" divorces.

• Author: Ho, Victoria M.
• Position: Florida

Courts in the cases discussed have attempted to provide reasonably uniform resolution of the permanent alimony issues that have come before them

Permanent alimony in the 1990's has been very much a moving target. This is particularly true with "gray-area" marriages of medium duration--marriages that are neither short- nor longterm, and thus not entitled to any presumption regarding permanent alimony. Discerning something like a "trend" in such cases, even at the appellate level, is a daunting task indeed. Cases with equally compelling facts frequently seem to result in disparate awards for the various recipient spouses.

Having said that, this article is intended to aid practitioners seeking permanent alimony by providing quick-reference organization of useful sets of case facts. Our scope is limited to dissolutions of marriages lasting between five and 20 years that have been ruled on by Florida district courts of appeal since 1990.[1] We have attempted to isolate patterns in these decisions that will enable practitioners with analogous facts to put forth colorable arguments in support of permanent alimony.

This article will provide first a brief discussion of the background of permanent alimony. Following this, we will discuss in turn several of the major factors considered by judges when granting or denying permanent alimony, factors such as the age of the recipient spouse, the length of the marriage, and the number of children. While our textual analysis is organized by factor, our accompanying chart summary is organized by date and jurisdiction. This is done with the intent that practitioners will be able to use the information in this article to tailor arguments to their particular facts and jurisdictions.

One final caveat is required here. The organization of this article according to factors considered by the appellate courts in deciding these cases should not be overinterpreted. Obviously, it is generally impossible to determine which factors a court considered to be dispositive, or even relevant, in reaching its decision. Accordingly, this indexing according to factors is necessarily somewhat artificial and intended mainly for convenience of reference.

The seminal case in the area of permanent alimony is, of course, Canakaris v. Canakaris, 382 So. 2d 1197 (Fla. 1980). Justice Overton's stated purpose in writing this particular opinion was to clarify the widespread confusion regarding the various types of alimony and their proper applications. In the section of the opinion regarding permanent alimony, Justice Overton explained that permanent alimony is granted for the purpose of providing for the necessities of the recipient spouse as such necessities existed during the marriage. The amount of permanent alimony is to be driven by 1) the needs of the spouse, and 2) the ability of the payor spouse to pay. These two elements are to be broken down further into considerations of such factors as the age, earning ability, health, and education of both parties, plus the length of the marriage and the standard of living enjoyed by the parties during the marriage. Justice Overton went on to complete his discussion of alimony by noting the importance of judicial discretion in weighing these various factors and arriving at an award. Justice Overton cautioned appellate judges against substituting their judgment for that of the trial judge whose vantage point of the facts was far superior, and thus to be trusted absent actual abuse of discretion.

Against this backdrop, the courts in the cases discussed below have attempted to provide reasonably uniform resolution of the permanent alimony issues that have since come before them. Unfortunately, these goals of uniformity have been in constant tension with goals of protecting judicial discretion, in addition to fairness and flexibility, which has led to some ostensibly disparate results. However, as stated above, we believe we have discerned some useful trends in these decisions.

Length of Marriage

In "gray area" cases where marriages survive between five and 20 years, the length of the marriage is not a dispositive factor in determining the appropriateness of permanent alimony.

Take for example two cases out of the First District in 1994. The first decision is that of Zeigler v. Zeigler, 638 So. 2d 50 (Fla. 1st DCA 1994), handed down in January of 1994. In that decision, the court noted the "inequity" of granting permanent alimony to a healthy 35year-old spouse in light of the fact that the marriage only lasted 13.5 years.[2] Compare this with the case of Echols v. Elswick, 638 So. 2d 581 (Fla. 1st DCA 1994), which was decided in June of 1994. In Echols, the court directed that the six-year marriage at issue was not so short as to "necessarily require a denial of permanent alimony."[3]

Thus, all that is clear from a brief review of the "gray area" cases addressing length of marriage is that this factor may be quickly overcome, one way or the other, by the presence...