Opinion
No. 3D11-1604 Lower Tribunal No. 05-430
10-03-2012
Nancy B. Murphy, Appellant, v. Dennis J. Murphy, Appellee.
Jay M. Levy; Hershoff, Lupino & Yagel, LLP, and Jay A. Hershoff, for appellant. Rosenthal Rosenthal Rasco Kaplan, LLC, and Daniel Kaplan and Jeffrey D. Swartz, for appellee.
Not final until disposition of timely filed motion for rehearing.
An Appeal from the Circuit Court for Monroe County, Mark H. Jones, Judge.
Jay M. Levy; Hershoff, Lupino & Yagel, LLP, and Jay A. Hershoff, for appellant.
Rosenthal Rosenthal Rasco Kaplan, LLC, and Daniel Kaplan and Jeffrey D. Swartz, for appellee. Before ROTHENBERG and LAGOA, JJ., and SCHWARTZ, Senior Judge.
SCHWARTZ, Senior Judge.
Nancy B. Murphy appeals the order granting her former spouse Dennis J. Murphy's petition for a downward modification of alimony and denying her request for attorney's fees. The basis for the downward modification was the trial court's finding that Ms. Murphy had entered a "supportive relationship" as identified by Section 61.14(1)(b)1., Florida Statutes (2011). That section provides:
After more than twenty-five years of marriage, the parties obtained a final judgment of dissolution of marriage on November 9, 2005. The order under review reduced the former husband's initially ordered alimony obligation from $4200 to $3500 a month. The amount of the reduction (or any other figure) finds no support in the record and seems to have sprung only from a necessarily unreviewable and arbitrary exercise of the trial court's personal opinion. But see Canakaris v. Canakaris, 382 So. 2d 1197 (Fla. 1980).
The standard of review in determining what constitutes a "supportive relationship" as contemplated by section 61.14 is de novo since it requires the court to interpret the applicable law. See Linstroth v. Dorgan, 2 So. 3d 305, 306 (Fla. 4th DCA 2008); Buxton v. Buxton, 963 So. 2d 950, 953 (Fla. 2d DCA 2007); see also Chrestensen v. Eurogest, Inc., 906 So. 2d 343, 344 (Fla. 4th DCA 2005).
The court may reduce or terminate an award of alimony upon specific written findings by the court that since the granting of a divorce and the award of alimony a supportive relationship has existed between the obligee and a person with whom the obligee resides. On the issue of whether alimony should be reduced or terminated under this paragraph, the burden is on the obligor to prove by a preponderance of the evidence that a supportive relationship exists.
The trial court found a "supportive relationship" notwithstanding its concurrent finding—which is not challenged on appeal—that no economic support was being made to Ms. Murphy by her third party cohabitant:
[T]he Court . . . finds that Nancy Murphy and Mark Llerena are involved in a supportive relationship within the meaning of Section 61.14(1)(b), Florida Statutes. In making this finding, the Court specifically recognizes that Ms. Murphy has not received financial support from Mr. Llerena.
The trial court additionally found:
Ms. Murphy and Mr. Llerena do not have any joint bank accounts nor do they jointly own any real or personal property nor have they made any investments together. Mr. Llerena is not a beneficiary of any insurance policies held by Ms. Murphy. Ms. Murphy and Mr. Llerena have not pooled their assets or income. Neither one has performed valuable services for the other's company or employer. They have not worked together to create or enhance anything of value. These 2 people do not have an express or implied agreement regarding property sharing or support.The trial court nonetheless, after reviewing the factors listed in section 61.14(1)(b)2., found that Ms. Murphy had "provided substantial financial support to Mr. Llerena" and the couple was "deeply involved in every aspect of each other's lives" and concluded a "supportive relationship" existed on that basis.
Section 61.14(1)(b)2. provides:
In determining whether an existing award of alimony should be reduced or terminated because of an alleged supportive relationship between an obligee and a person who is not related by consanguinity or affinity and with whom the obligee resides, the court shall elicit the nature and extent of the relationship in question. The court shall give consideration, without limitation, to circumstances, including, but not limited to, the following, in determining the relationship of an obligee to another person:
a. The extent to which the obligee and the other person have held themselves out as a married couple by engaging in conduct such as using the same last name, using a common mailing address, referring to each other in terms such as "my husband" or "my wife," or otherwise conducting themselves in a manner that evidences a permanent supportive relationship.
b. The period of time that the obligee has resided with the other person in a permanent place of abode.
c. The extent to which the obligee and the other person have pooled their assets or income or otherwise exhibited financial interdependence.
d. The extent to which the obligee or the other person has supported the other, in whole or in part.
e. The extent to which the obligee or the other person has performed valuable services for the other.
f. The extent to which the obligee or the other person has performed valuable services for the other's company or employer.
g. Whether the obligee and the other person have worked together to create or enhance anything of value.
h. Whether the obligee and the other person have jointly contributed to the purchase of any real or personal property.
i. Evidence in support of a claim that the obligee and the other person have an express agreement regarding property sharing or support.
j. Evidence in support of a claim that the obligee and the other person have an implied agreement regarding property sharing or support.
k. Whether the obligee and the other person have provided support to the children of one another, regardless of any legal duty to do so.
Thus, the discrete question posed is whether for the purposes of section 61.14(1)(b), a "supportive relationship" can be found notwithstanding a parallel determination that the recipient spouse is not receiving any economic support from his/her third party cohabitant. We conclude that it cannot and reverse on that basis.
1) Section 61.14(1)(b), generally, and sub-section 61.14(1)(b)3., specifically, make clear that the section requires at least some form of economic support being provided to the recipient spouse by the third party cohabitant.
2) The mere existence of a third party cohabitant, absent economic support to the recipient spouse, cannot demonstrate the change in the recipient spouse's needs which is and has always been the raison d'être for an alimony award.
[e.s.]
In 2005, the Legislature enacted section 61.14(1)(b). While the statute does not define a "supportive relationship" it enumerates eleven factors to be considered, at least nine of which are clearly economic in nature. See §61.14(1)(b)2.(a)-(k). In so providing, the Legislature chose not to concentrate solely on evidence of a recipient spouse's established cohabitation, as several states have done, but rather to focus on the economic ramifications of the cohabitation. Thus, as section 61.14(1)(b)3. makes clear, an economic contribution by a third-party cohabitant is the sine qua non to finding of a supportive relationship:
The legislative history of section 61.14(1)(b), reflects that the Legislature had before it a report on the "Anti-Cohabitation Statutes in Other States," which explained in part:
A handful of states provide for an automatic termination of alimony upon a showing of cohabitation, which are Alabama, Louisiana, Pennsylvania, and Texas. More often than not, states that address cohabitation in alimony statutes authorize, rather than require, the court to terminate or modify alimony. These states include California, Connecticut, Georgia, Illinois, Louisiana, Oklahoma, New York, Pennsylvania, South Carolina, Tennessee, Utah, and West Virginia. Of these, some authorize modification but not termination, such as California, Connecticut, Georgia, Oklahoma, and Tennessee. A showing of cohabitation creates a rebuttable presumption that financial circumstances have changed in states such as California and Tennessee.Fla. Staff Analysis on S.B. 152 (March 25, 2005).
This paragraph does not abrogate the requirement that every marriage in this state be solemnized under a license, does not recognize a common law marriage as valid, and does not recognize a de facto marriage. This paragraph recognizes only that relationships do exist that provide economic support equivalent to a marriage and that alimony terminable on remarriage may be reduced or terminated upon the establishment of equivalent equitable circumstances as described in this paragraph. The existence of a conjugal relationship, though it may be relevant to the nature and extent of the relationship, is not necessary for the application of the provisions of this paragraph. [e.s.]See generally Odette Marie Benedeck, Florida's "Cohabitation Statute: The Revolution That Wasn't, 82 Fla. B.J., June 2008, at 95, 98 (observing that "[t]he statutory language [in 61.14(1)(b)] expressly sets forth the importance of an economic consequence from the relationship as the basis for modification" and concluding case law reflected the clear trend establishing "there must be proof that the alimony recipient's needs have actually reduced").
See also Peter L. Goldstone and Andrea E. Goldstein, Codifying Cohabitation as a Ground for Modification or Termination of Alimony-So What's New?, 80 Fla. B. J. 45 (2006).
This conclusion is supported by the First District's analysis in Overton v. Overton, 37 Fla. L. Weekly D1408 (Fla. 1st DCA June 14, 2012) (Overton II):
A supportive relationship is a relationship that "takes the financial place of a marriage and necessarily decreases the need of the obligee."[French v. French, 4 So. 3d 5, 6 (Fla. 4th DCA 2009)]; Section 61.14(1)(b) recognizes the economic support that occurs when independent individuals cho[o]se to live together. Such support is equivalent to a marriage and requires a reduction in alimony. See id. at 8. [e.s.]Id. at D1408 (quoting Overton v. Overton, 34 So. 3d 759, 761 (Fla. 1st DCA 2010) (Overton I)).
Likewise, in Linstroth v. Dorgan, 2 So. 3d 305, 307 (Fla. 4th DCA 2008), the Fourth District concluded:
As a matter of law, section 61.14(1)(b) requires the court to determine if an alimony obligee has entered into a relationship that provides the economic support equivalent to a marriage, and if so, the court may reduce or terminate alimony as the equities require [e.s.].See 25A Fla. Jur. 2d Family Law § 636 (Westlaw Database updated August 2012) ("A 'supportive relationship' between the alimony obligee and a person with whom the obligee resides, permitting a court to reduce or terminate alimony, is a relationship that takes the financial place of a marriage and necessarily decreases the need of the obligee.").
Reviewing our sibling courts' applications of section 61.14(1)(b), we find not a single instance where a supportive relationship was found in the absence of some form of economic support by the third party cohabitant to the recipient spouse. See e.g. King v. King, 82 So. 3d 1124, 1127 (Fla. 2d DCA 2012) (Second District observing a supportive relationship where recipient spouse and third party cohabitant had pooled their resources and shared expenses); Overton I, 34 So. 3d at 762 (First District concluding that relationship did not "rise to the level of a supportive relationship contemplated in section 61.14" where the other person "did not provide [recipient spouse] with any financial support"); French, 4 So. 3d at 7 (Fourth District finding supportive relationship where recipient spouse had benefited financially as a result of shared expenses and living arrangements); Linstroth, 2 So. 3d at 307 (Fourth District concluding no supportive relationship after finding none of the "indicia of a relationship that provides the economic support equivalent to a marriage"); Buxton, 963 So. 2d at 954 (Second District finding a supportive relationship where "Former Wife and [third party cohabitant] are in a long-term, committed relationship that provides both economic and social support equivalent to that of a marriage").
In French, the court decided that "once a trial court makes a finding that a supportive relationship exists, it must by necessity either reduce or terminate alimony because the obligee's need has changed. If the trial court does neither, it renders both the trial court's findings and the statute meaningless." 4 So. 3d at 6-7. This observation supports that court's conclusion that economic support is a necessary element of a "supportive relationship." If a third party cohabitant is providing economic support, it makes sense to require a reduction or termination of the recipient spouse's alimony to avoid the generally abhorred 'double dipping.' But see Baumann v. Baumann, 22 So. 3d 719, 721 (Fla. 2d DCA 2009) ("[W]e note that the Fourth District in French . . . has concluded that 'once a trial court makes a finding that a supportive relationship exists, it must by necessity either reduce or terminate alimony because the obligee's need has changed.' This conflicts with our conclusion here that the finding that a supportive relationship exists is merely a change in circumstances that shifts the burden of proving continued need to the recipient spouse.").
Here, the trial judge determined "Mrs. Murphy has provided substantial financial support for Mr. Llerena" and listed her contributions including mortgage payments, utilities, taxes, insurance, food and household goods. The judge's position was that notwithstanding the lack of any economic support to Ms. Murphy, her economic contributions to Mr. Llerena could provide the basis for finding a supportive relationship. We disagree. Rather, because that relationship does not "necessarily decrease[] the need of [the recipient spouse][e.s.]," Overton I, 34 So. 3d at 761, French, 4 So. 3d at 6, and did not do so in this case, a supportive relationship under section 61.14(1)(b), therefore did not exist. This analysis is in keeping with the long held purpose of a support order, as providing for the needs of the former spouse as established during the marriage. See Silverman v. Silverman, 89 So. 3d 974, 976 (Fla. 3d DCA 2012) ("The Florida Supreme Court has held that permanent periodic alimony must 'provide the needs and necessities of life to a former spouse as they have been established by the marriage.'" (quoting Canakaris v. Canakaris, 382 So. 2d 1197, 1201 (Fla. 1980))).
Thus, of course if the relationship between the former spouse and his or her new partner results in a reduction in needs, modification on traditional change of circumstance grounds remains available, even if section 61.14(1)(b) does not. In fact, this section is to provide a reduction without the necessity of a change. See Buxton, 963 So. 2d at 951 ("[T]he legislature enacted section 61.14(b) to 'provide an alternate method to a court to reduce or terminate alimony, without first having to find that there has been a change in financial circumstance, as is the case in current law.' Sen. Staff Analysis, C.B./S.B. 152 at 12 (Feb. 25, 2005).").
As observed in Van Gorder v. Van Gorder, 327 N.W.2d 674, 679 (Wis. 1983):
Where it appears that the recipient spouse is supporting the cohabitor, that fact is only relevant to the extent it demonstrates that the current maintenance payment may be unnecessarily high since it can support two people. But it must also be recognized that certain living expenses, such as rent, would in many cases be the same whether the recipient spouse lived alone or not. Therefore, the fact that a cohabitor is living rent free may not be relevant to the changed economic circumstances of the recipient spouse. It would be relevant only if the trial court could find that the recipient spouse should be living in less expensive housing and was living in more spacious or luxurious accommodations only as a consequence of cohabitation.
The record shows that Ms. Murphy's needs, which included payment of the mortgage and other expenses on the previously marital home which she continued to occupy were not materially reduced by Mr. Llerena's involvement in her life.
The opposing point of view is expressed by Judge Farmer in his dissenting opinion in Linstroth, 2 So. 3d at 312:
By requiring only the existence of a supportive relationship, the text is not restricted to the recipient being supported by someone with whom she cohabits. Under this statute, a supportive relationship also comprehends the alimony recipient contributing to the support of the person with whom she cohabits. Because the statute does not specify that the support be unilateral or who must provide the support, it covers all the possibilities: he supports her; she supports him; they each contribute to the support of the other.We agree with the Linstroth majority.
Even "[p]rior to the enactment of section 61.14(1)(b), the courts allowed a payor spouse to seek modification of alimony under section 61.14(a) when the recipient spouse was cohabiting with another. See, e.g., Reno v. Reno, 884 So. 2d 462 (Fla. 4th DCA 2004); Bridges v. Bridges, 842 So. 2d 983 (Fla. 1st DCA 2003); Springstead v. Springstead, 717 So. 2d 203 (Fla. 5th DCA 1998); DePoorter v. DePoorter, 509 So. 2d 1141 (Fla. 1st DCA 1987)." Buxton, 963 So. 2d at 951. But "cohabitation [could] justify the modification and elimination of alimony, depending on how the new living situation . . . impacted the alimony recipient's financial condition and continued need for alimony." Reno, 884 So. 2d at 465; see Dibartolomeo v. Dibartolomeo, 679 So. 2d 72, 72-73 (Fla. 4th DCA 1996).
We make one broader observation. In other contexts, the unqualified term "support" as in "spousal support" a.k.a. alimony or "child support" refers only to money. The same should apply to the adjectival word "supportive." The opposite conclusion is difficult, to say the least, to effectuate. If the word supportive, refers only to emotional, psychic, or intimate support, the statute could nevertheless be effectuated only by reducing the amount of money previously payable, as the trial judge actually did here. See n.1. Thus, that view requires the quantification of that which is beyond quantification. The trial court has thus read the statute to require the impossible. This should not be the law.
In sum, inherent in the statutory term "supportive relationship" is the precondition that some form of economic support is being supplied to a recipient spouse by his/her third party cohabitant. Because no such support was found by the trial court in this case, the alimony award at issue should not have been modified pursuant to section 61.14(1)(b).
We also hold that the order denying fees, particularly in light of our decision denying the former husband's application for an alimony reduction, must be reversed. See Goldstein v. Goldstein, 90 So. 3d 970, 972 (Fla. 4th DCA 2012) ("The wife has a need for fees and costs, and the husband has a greater ability to pay at least a part of her fees and costs.").
For the reasons stated, we reverse the order below for denial of modification under section 61.14(1)(b), and for assessment of a reasonable attorney's fee for the appellant.
Reversed.
ROTHENBERG, J. (dissenting).
After conducting an extensive evidentiary hearing and conscientiously weighing the evidence, the trial court concluded that Nancy Murphy ("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 Dennis Murphy's ("former husband") alimony payment of $4,200 per month, which is currently 46% of his net salary, to $3,500 per month, a $700 per month reduction. In my view, 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. I would therefore affirm the trial court's order granting the former husband's motion for a reduction in his alimony obligation.
When the parties entered into the settlement agreement, the monthly payments of $4,200 equaled 42% of the former husband's net monthly income; however, after his salary was reduced following the dissolution, the $4,200 monthly payments equaled 46% of his net monthly salary.
THE EVIDENCE
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 increased 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 valued at $450,000, but encumbered by a small mortgage (the mortgage balance is currently $15,000); 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 has 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 include the following. The former husband has remarried, and his wife lives in her home in Broward County, which she cannot sell because it is currently "upside down." However, because the former husband, who is a Miami-Dade circuit court judge, must reside in Miami-Dade County, he maintains a separate residence in Miami. The former husband is also financially assisting the former wife's adult son, and supports the parties' adult daughter and her child (the parties' grandchild), who currently live with the former husband's wife in her Broward County home. Based on the former husband's salary reduction, he is now 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 the former husband drives a 2004 GMC Envoy which has at least 118,000 miles because he cannot afford to replace it.
In contrast, the former wife, who is fifty-eight years old, no longer works, and lives with her boyfriend, Llerena, in the $450,000 former marital home. The monthly mortgage payment on the remaining $15,000 debt is only $400.
The relationship between the former wife and Llerena began in 2008. Thereafter, they established an exclusive monogamous, romantic relationship. In March 2009, Llerena began living with the former wife in the former marital home. Although Llerena has full-time employment, he contends he contributes nothing towards the household expenses. He does not pay rent to the former wife and does not contribute any money towards the utilities or the maintenance of the home. Although he periodically purchases some of the groceries, the former wife primarily pays for the food they consume and the other products used within the household. According to Llerena, although he lives full-time with the former wife, he only contributes approximately $150 a month towards the relationship, which is 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 to date the "debt" remains unpaid.
Besides providing Llerena with a home for the past three years, with various amenities—including a pool, and all of the comforts of a home—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 pays for the expenses incurred during their stays since there is no evidence that Llerena pays for anything other than $150 per month for food and meals consumed outside of the home.
THE TRIAL COURT'S ORDER
The trial court found that the former wife and Llerena are 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. provides the court with authority to reduce or terminate the former husband's alimony obligation to the former wife. Then, as is required, the trial court considered the factors listed in section 61.08(2) in determining whether a reduction or termination of alimony was appropriate. After considering all of 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. I disagree. As the trial court's order is supported by substantial competent evidence and the law, the order should be affirmed.
LEGAL ANALYSIS
A. Standard of Review
Although the parties disagree as to this Court's standard of review, and the majority contends the standard of review is de novo, I agree with the appellant and the Second District that a review of a trial court's decision under section 61.14(1)(b) is a mixed question of law and fact, necessitating 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. Based on these factual findings, the next step is to 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. Thus, our review of the trial court's factual findings should be 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); Buxton, 963 So. 2d at 953.
B. Modification of Alimony
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 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).
Contrary to the majority's position, 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 cohabitant." Bridges, 842 So. 2d at 984 (citing Maclaren v. Maclaren, 616 So. 2d 104, 106 (Fla. 1st DCA 1993)) (emphasis added); DePoorter v. DePoorter, 509 So. 2d 1141, 1145 (Fla. 1st DCA 1987).
For example, in Stuart v. Stuart, 385 So. 2d 134, 135 (Fla. 4th DCA 1980), the Fourth District recognized that cohabitation relationships necessarily will result in either financial or in kind contributions flowing from the former spouse to the new partner or visa-versa, explaining:
Obviously, if a spouse receiving alimony enters into an arrangement which involves living with a member of the opposite sex, that is rather clear evidence of a substantial change of circumstances. There will either be financial or in kind contributions of the new partner to be taken into account, or, if the contributions go from the spouse to the new partner, the fact that the spouse is providing board and room to the new partner is evidence that the fair market value of those and any other contributions is some measure of the extent to which periodic alimony is excessive.(emphasis added).
In Schneider v. Schneider, 467 So. 2d 465 (Fla. 5th DCA 1985), the Fifth District noted that, for three years, the former wife had been cohabitating with a man, Rex Springer, in the former marital residence, and although Springer contributed little or nothing to the household expenses, the former wife was, to some extent, contributing to Springer's support. Thus, the Fifth District reversed the trial court's order denying modification of the former husband's alimony based on the trial court's finding that there had not been a substantial change in the economic circumstances of the parties.
In 2005, the Florida Legislature enacted subsection (b) of section 61.14(1), which codifies the law regarding reduction or termination of alimony on the basis of cohabitation. King, 82 So. 3d at 1131. Section 61.14(1)(a) authorizes a modification of alimony when "the circumstances or the financial ability of either party changes," whereas section 61.14(1)(b) authorizes modification based on the existence of a "supportive relationship" between the obligee and another person. § 61.14 (1)(b); King, 82 So. 3d at 1130. Section 61.14(1)(b) provides as follows:
1. The court may reduce or terminate an award of alimony upon specific written findings by the court that since the granting of a divorce and the award of alimony a supportive relationship has existed between the obligee and a person with whom the obligee resides. On the issue of whether alimony should be reduced or terminated under this paragraph, the burden is on the obligor to prove by a preponderance of the evidence that a supportive relationship exists.(emphasis added).
2. In determining whether an existing award of alimony should be reduced or terminated because of an alleged supportive relationship between an obligee and a person who is not related by consanguinity or affinity and with whom the obligee resides, the court shall elicit the nature and extent of the relationship in question. The court shall give consideration, without limitation, to circumstances, including, but not limited to, the following, in determining the relationship of an obligee to another person:
a. The extent to which the obligee and the other person have held themselves out as a married couple by engaging in conduct such as using the same last name, using a common mailing address, referring to each other in terms such as "my husband" or "my wife," or otherwise conducting themselves in a manner that evidences a permanent supportive relationship.
b. The period of time that the obligee has resided with the other person in a permanent place of abode.
c. The extent to which the obligee and the other person have pooled their assets or income or otherwise exhibited financial interdependence.
d. The extent to which the obligee or the other person has supported the other, in whole or in part.
e. The extent to which the obligee or the other person has performed valuable services for the other.
f. The extent to which the obligee or the other person has performed valuable services for the other's company or employer.
g. Whether the obligee and the other person have worked together to create or enhance anything of value.
h. Whether the obligee and the other person have jointly contributed to the purchase of any real or personal property.
i. Evidence in support of a claim that the obligee and the other person have an express agreement regarding property sharing or support.
j. Evidence in support of a claim that the obligee and the other person have an implied agreement regarding property sharing or support.
k. Whether the obligee and the other person have provided support to the children of one another, regardless of any legal duty to do so.
(3) This paragraph does not abrogate the requirement that every marriage in this state be solemnized under a license, does not
recognize a common law marriage as valid, and does not recognize a de facto marriage. This paragraph recognizes only that relationships do exist that provide economic support equivalent to a marriage and that alimony terminable on remarriage may be reduced or terminated upon the establishment of equivalent equitable circumstances as described in this paragraph. The existence of a conjugal relationship, though it may be relevant to the nature and extent of the relationship, is not necessary for the application of the provisions of this paragraph.
Thus, contrary to the majority's conclusion that section 61.14(1)(b) "make[s] it clear that the section requires at least some form of economic support being provided to the recipient spouse by the third party cohabitant," (second emphasis added), section 61.14(1)(b) specifically provides that the court shall consider the economic support and other benefits the obligee has conferred upon the third party cohabitant. Section 61.14(1)(b)1.c. requires the court to consider "[t]he extent to which the obligee and the other person have pooled their assets or income or otherwise exhibited financial interdependence." Section 61.14(1)(b)1.d. requires the court to consider "[t]he extent to which the obligee or the other person has supported the other, in whole or in part." (emphasis added). Section 61.14(1)(b)1.e. requires the court to consider "[t]he extent to which the obligee or the other person has performed valuable services for the other." (emphasis added). Section 61.14(1)(b)1.k. additionally requires the court to consider "[w]hether the obligee and the other person have provided support to the children of one another, regardless of any legal duty to do so." There was clear and unrefuted evidence in the record as to each of these and other relevant factors.
The unrefuted evidence considered by the trial court was that the former wife has been living with Llerena in a monogamous, romantic relationship since 2008, in the former wife's home, which she was awarded in the dissolution of her marriage. The former wife provides support to Llerena by providing him with a home, which includes a pool; paying all of the utilities, taxes, and insurances relating to the home; providing him with a location where he can exercise his visitation rights with his two minor children; providing a separate bedroom for Llerena's children to sleep in on beds she purchased for that purpose; loaning him money to purchase a vehicle (a debt which remains unpaid); paying for all the maintenance and upkeep of the home; paying for all household supplies; paying for most of the food expenses (he contributes approximately $150 per month towards their food bill and for the food his children consume). Because the former wife, who is able-bodied and only fifty-eight years old, is not working, the former husband is providing the means whereby his former wife can offer these substantial benefits to Llerena, who works full-time but does not contribute towards his room and board. Although the former wife and Llerena do not pool their assets or share a bank account, it is clear that Llerena is substantially dependent on the former wife. It is also undisputed that, although Llerena either lacks the financial ability or the inclination to provide financial assistance to the former wife, he does perform valuable services to the former wife. He cleans the pool, cuts the grass, periodically washes the former wife's car, and helps with some of the chores. The relationship is not dissimilar to many marriages where one spouse financially supports the other, while the other spouse contributes by performing valuable services that reduce the couple's overall expenses.
The cases relied on by the majority do not support its conclusion that a supportive relationship cannot be found "absent some form of economic support by the third party cohabitant to the recipient spouse." In Overton v. Overton, 34 So. 3d 759 (Fla. 1st DCA 2010) ("Overton I"), Lynn Overton, the former wife, appealed the trial court's order reducing her alimony award on the ground she was in a supportive relationship. The First District reversed based on its findings that: (1) the trial court did not make any findings regarding the factors outlined in section 61.14(1)(b); and (2) the relationship had not yet reached the point contemplated by the statute. Although the former wife's boyfriend lived with her when her children were not visiting her, and the former wife and her boyfriend drove to work together, there was no other indicia of a "supportive relationship." They did not pool their assets, did not hold themselves out as married, and unlike the facts in the instant appeal, had separate residences, and there was no evidence that either was supporting the other, providing valuable services to the other, or providing support to the children of the other.
Subsequently, in Overton v. Overton, 92 So. 3d 253 (Fla. 1st DCA 2012) ("Overton II"), the First District addressed whether the trial court may exercise its discretion as to whether to reduce or terminate alimony upon finding that the former spouse was in a supportive relationship. In reaching its determination that the statute contemplates an exercise of discretion, the First District rejected Edward Overton's reliance on language from Overton I, which is the very same passage relied on by the majority in the instant appeal. This passage quotes, in part, to French v. French, 4 So. 3d 5 (Fla. 4th DCA 2009). The Overton II court explained that this reference in Overton I was "obiter dicta," Overton II, 92 So. 3d at 254, and ultimately certified conflict with this reference in French. Overton II, 92 So. 3d at 255.
The passage relied on by the majority in the instant appeal and rejected by the First District in Overton II provides:
A supportive relationship is a relationship that "takes the financial place of a marriage and necessarily decreases the need of the obligee." French, 4 So. 3d at 6. Section 61.14(1)(b) recognizes the economic support that occurs when independent individuals cho[o]se to live together. Such support is equivalent to a marriage and requires a reduction in alimony. See id. at 8.
In King, another case relied on by the majority, the Second District noted that "section 61.14(1)(a) authorizes a modification of alimony when 'the circumstances or the financial ability of either party changes,'" King, 82 So. 3d at 1131 (emphasis added), and that subsection (1)(b) must be read in pari materia with subsection (1)(a). King, 82 So. 3d at 1131. In determining whether a reduction in alimony is appropriate under subsection (1)(b), the appellate court noted that the trial court must consider the nature and extent of the relationship in question and the non-exclusive factors identified in subsection (1)(b)2. The First District concluded that the analysis involved a four step process: (1) considering and making findings concerning the factors listed in section 61.14(1)(b)2. and any other pertinent circumstances; (2) determining whether based on these findings, a supportive relationship exists; (3) considering the relevant economic factors for determining an award of alimony under section 61.08(2); and (4) determining whether alimony should be reduced or terminated and, if so, by how much. Id. at 1129. Although the trial court found that a supportive relationship existed, the appellate court concluded that because the supportive relationship, and thus the change in circumstances, predated the divorce and the award of alimony, the circuit court was not authorized to reduce or terminate the alimony payments under section 61.14(1)(b). The King court did not state that the determination of whether a supportive relationship exists requires a finding that the third party cohabitant is providing economic support to the recipient spouse, as the majority suggests, nor could it. The statute specifically provides that a supportive relationship may exist if, in whole or in part, either the obligee or the other person is supporting the other, is providing valuable services for the other, or providing support to the other's children. See § 61.14(1)(b)1.d., e., k. The impact that a third party cohabitant's contributions, financial or otherwise, may have on the former spouse's need is a relevant consideration as to whether to reduce or terminate alimony after a determination is made that a supportive relationship exists. King, 82 So. 3d at 1129.
CONCLUSION
Contrary to the majority's conclusion that section 61.14(1)(b) requires at least some form of economic support being provided to the recipient spouse by a third party cohabitant, the statute provides that a supportive relationship may be established through the economic support provided by the recipient spouse to the third party cohabitant, and other valuable non-economic services provided by either to the other is a relevant consideration in determining whether a supportive relationship exists.
Based on the undisputed evidence that the relationship between the former wife and Llerena, which began in 2008 after the divorce, is a monogamous romantic relationship; Llerena has been living with the former wife in the former marital home since March of 2009, and he has no other residence; Llerena does not contribute any money towards his share of the utilities or the maintenance of the home; the former wife primarily pays for the food they consume; the former wife provides room and board and a venue to facilitate visitation for Llerena with his minor children at the former wife's home; and Llerena provides certain valuable services, including maintenance of the pool and yard, and washing the former wife's car, the trial court's finding that the former wife and Llerena are involved in a "supportive relationship" is supported by competent substantial evidence. Because the trial court considered and weighed the former wife's need and the former husband's decreased ability to pay, the trial court's order finding that a reduction in the former wife's alimony award was warranted is also supported by the evidence. Lastly, the $700 per month reduction to the former husband's $4,200 monthly alimony obligation was entirely reasonable. Thus, the trial court's order reducing the former husband's monthly alimony obligation by $700 (from $4,200 to $3,500) should be affirmed.
Accordingly, I respectfully dissent from the majority opinion.