Opinion
No. 1D19-3037
07-15-2020
Michelle BARON, Former Wife, Appellant, v. Richard BARON, Former Husband, Appellee.
Donald R. Curtis, III, The Curtis Law Firm, P.A., Perry, for Appellant. Brian P. North, Kenny Leigh & Associates, Fort Walton Beach, for Appellee.
Donald R. Curtis, III, The Curtis Law Firm, P.A., Perry, for Appellant.
Brian P. North, Kenny Leigh & Associates, Fort Walton Beach, for Appellee.
Per Curiam.
In this appeal from a final judgment of dissolution of marriage, former wife claims that the trial court abused its discretion by not awarding her permanent periodic alimony based on a long-term marriage of twenty years. Instead, the trial court awarded her $2,000 per month in durational alimony for twelve months.
"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." § 61.08(7), Fla. Stat. (2017). However, "when a dissolution judgment gives no guidance as to why permanent periodic alimony is inappropriate in a long-term marriage and why durational alimony was awarded, reversal is proper." Gilliland v. Gilliland , 266 So. 3d 866, 868 (Fla. 5th DCA 2019).
In the case of a long-term marriage lasting at least seventeen years, the courts recognize a rebuttable presumption in favor of awarding permanent alimony. Schroll v. Schroll , 227 So. 3d 232, 237 (Fla. 1st DCA 2017) ; Gotro v. Gotro , 218 So. 3d 494, 497 (Fla. 1st DCA 2017) ; Keyser v. Keyser , 204 So. 3d 159, 160 (Fla. 1st DCA 2016) ; Nolan v. Nolan , 188 So. 3d 977, 979 (Fla. 1st DCA 2016). "It is an abuse of discretion to not award permanent periodic alimony in a long-term marriage unless the presumption favoring such an award is overcome by competent, substantial evidence." Frerking v. Stacy , 266 So. 3d 273, 275 (Fla. 5th DCA 2019).
Because there is no transcript of the final hearing, this court is limited to determining whether the alimony award is erroneous on the face of the final judgment. Quinones v. Quinones , 182 So. 3d 702, 703 (Fla. 5th DCA 2015) ; Wofford v. Wofford , 20 So. 3d 470, 472 (Fla. 4th DCA 2009) ; Mobley v. Mobley , 18 So. 3d 724, 725 (Fla. 2d DCA 2009). To the extent former husband claims that former wife cannot challenge the sufficiency of the trial court's findings because she did not file a motion for rehearing, former wife correctly responds that she is not challenging the sufficiency of the trial court's findings. The final judgment does not suffer from a lack of findings; rather, the issue is whether those findings on their face support the trial court's award of twelve months of durational alimony in lieu of permanent periodic alimony.
We conclude that the trial court's findings on their face failed to rebut the presumption that former wife was entitled to permanent periodic alimony. See Gilliland , 266 So. 3d at 868–69 ; Frerking , 266 So. 3d at 275–77 ; Berger v. Berger , 201 So. 3d 819, 822–23 (Fla. 4th DCA 2016) ; Clemens v. Clemens , 200 So. 3d 237, 238–39 (Fla. 5th DCA 2016) ; Motie v. Motie , 132 So. 3d 1210, 1213–14 (Fla. 5th DCA 2014). Because the presumption in favor of permanent alimony was not rebutted, the trial court abused its discretion in awarding durational alimony for twelve months instead of permanent periodic alimony. See Gilliland , 266 So. 3d at 868–69 ; Frerking , 266 So. 3d at 275–77 ; Griffitts v. Griffitts , 263 So. 3d 220, 221 (Fla. 5th DCA 2019) ; Berger , 201 So. 3d at 824 ; Motie , 132 So. 3d at 1214. Accordingly, we reverse and remand for further proceedings to determine the proper amount of permanent alimony.
Former wife also claims that the trial court abused its discretion by failing to award her attorney's fees and costs. Entitlement to attorney's fees and costs is contingent on whether there is an equitable distribution of the marital property and an equalization of the parties’ income through the alimony award. See Williams v. Jones , 290 So. 3d 609, 611 (Fla. 1st DCA 2020) ; Galligar v. Galligar , 77 So. 3d 808, 813 (Fla. 1st DCA 2011). Accordingly, we reverse and remand for further proceedings on the award of attorney's fees and costs, which will be contingent on the court's alimony award.
REVERSED and REMANDED for further proceedings.
Lewis, Rowe, and Jay, JJ., concur.