Appellate court trends in permanent alimony for "Gray Area" divorces: 1997-2007.

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

In 1980, the Florida Supreme Court defined the purpose of permanent alimony: "to provide the needs and necessities of life to a former spouse as they have been established by the marriage of the parties." (1) This purpose is achieved by determining the need of one spouse for alimony and the ability of the other spouse to pay. (2) In 1978, F.S. [section] 61.08(2) established seven specific factors to be considered by courts when determining a proper award of alimony. (3) It is difficult to determine whether the factors can be ranked by level of significance. A review of case law makes clear that permanent alimony decisions are reached as a result of a court's overall impression of the facts of each case and, based on those facts, its determination of equity and fairness.

Canakaris v. Canakaris, 380 So. 2d 1197 (Fla. 1980), has been cited in over 2,000 cases and journals since 1980. While the factors courts consider when making decisions regarding permanent alimony have not changed since the Florida Supreme Court's decision in Canakaris, the emphasis on these factors has. In addition to the factors included in F.S. [section] 61.08, courts look to other factors, such as minor children of the marriage, agreements made during the marriage for one spouse to stay home with children, and whether a spouse's career has been limited by the marriage. Although it is not difficult to identify the factors that courts consider, it is still a challenge to predict how a court will emphasize a particular factor. Ten years ago, we examined appellate court trends in permanent alimony in gray area marriages. (4) This article will revisit the subject and examine developments in the case law during the past 10 years. So that this article may be used as a continuation of our previous article on this subject, we have again organized it by the factors appellate courts consider when affirming or reversing permanent alimony awards. (5) These analyses are offered to the reader not as absolutes, but as a means by which to organize arguments either for or against an award of permanent alimony. This article only discusses cases and trends emerging since 1997 and only addresses initial awards of permanent alimony, not modification proceedings.

Contributions to the Marriage

One of the enumerated factors in F.S. [section] 61.08 is the contribution, or lack thereof, of each party to the marriage. (6) In gray area marriages, this factor can sometimes tip the scales for or against permanent alimony. For instance, in Jessee v. Jessee, 961 So. 2d 1118 (Fla. 2d DCA 2007), the Second District affirmed a trial court's denial of permanent alimony to a husband who earned less than his wife based on the fact that he had not been required to abandon his career in order to support hers. (7) In Krafchuk v. Krafchuk, 804 So. 2d 376 (Fla. 4th DCA 2001), the Fourth District affirmed the trial court's denial of permanent alimony to a husband who had been injured in a car accident and moved in with his parents, leaving the wife alone to care for the children and the marital home. (8) In Escuerdo v. Escuerdo, 739 So. 2d 688 (Fla. 5th DCA 1999), the Fifth District affirmed an award of permanent alimony to a wife whose husband was abusive during the marriage and did not provide financial support during the marriage. (9)

Length of Marriage

Ten years ago, gray area marriages were defined as marriages lasting between five and 20 years. (10) Now, that seems to have morphed to between six and 16 years, with both the lower and upper limits varying slightly in each district court. (11) In the First District, the gray area extends up to 16 years. (12) In the Second District, a five-year marriage is considered a short-term marriage. (13) The Second District has not established a bright line upper limit of a gray area marriage. In Hann v. Hann, 629 So. 2d 918 (Fla. 2d DCA 1993), the Second District stated that a 15-year marriage was in the gray area. (14) However, in Cardillo v. Cardillo, 707 So. 2d 350 (Fla. 2d DCA 1998), the Second District stated that 14 years was a long-term marriage. (15) Subsequent to Cardillo, the Second District decided Knoff v. Knoff, 751 So. 2d 167 (Fla. 2d DCA 2000), in which the court stated that the characterization of a 14-year marriage as long term in Cardillo did not mean that all 14-year marriages should be considered long term. (16) In the Third District, a 15 and one-half-year marriage is considered to be a gray area marriage. (17) In the Fourth District, the upper limit of the gray area is 16 years. (18) In the Fifth District, the lower limit of the gray area is six years (19) and the upper limit is 16 years. (20) Although these limits are certainly not meant to be dogmatically applied, it appears that currently any marriage under six years is short term and any marriage over 16 years is long term. However, be aware that courts have used the fact that a marriage is in the gray area to support both denials and awards of permanent alimony.

Permanent alimony may be denied at both ends of the gray area. In Layeni v. Layeni, 843 So. 2d 295 (Fla. 5th DCA 2003), the Fifth District affirmed the denial of permanent alimony to a wife in a seven-year marriage based, in part, on the length of the marriage. (21) On the high end of the gray area, permanent alimony may also be denied based on the fact that the marriage was not long term. In Williams v. Williams, 904 So. 2d 488 (Fla. 3d DCA 2005), the Third District found that permanent alimony was properly denied in a 15 and one-half-year marriage based on the relative youth of the parties and the length of the marriage. (22) The court's decision rested largely on the youth of the parties, and while this marriage was at the high end of the gray area, that fact alone did not sway the court to award permanent alimony. The Fourth District reached this same conclusion in Peterson v. Peterson, 929 So. 2d 38 (Fla. 4th DCA 2006), when the court denied permanent alimony in a 14-year marriage based on the same facts, length of the marriage and the relative youth of the parties. (23) Importantly, the overriding factor in Peterson was the fact that the combination of alimony and child support encompassed 70 percent of the husband's income, but the court also focused on the fact that this gray area marriage did not justify a permanent alimony award even though the marriage was at the upper end of the gray area. (24)

With different fact situations, other courts have found the length of the marriage persuasive when awarding permanent alimony in gray area marriages. The First District did so in Burrill v. Burrill, 701 So. 2d 354 (Fla. 1st DCA 1997), when it awarded permanent alimony in a 16-year marriage based in part on the fact that the marriage was in the upper end of the gray area. (25) The wife in Burrill had also stayed home with the children during the marriage and required a permanent alimony award to maintain the marital standard of living. (26) The Third District...