Opinion
Nos. 95-2825, 96-662.
September 20, 1996. Rehearing Denied January 13, 1997.
Appeal from the Circuit Court, Orange County, William C. Gridley, J.
Scott R. McHenry of Dean, Mead, Egerton, Bloodworth, Capouano Bozarth, P.A., Orlando, for Appellant/Cross-Appellee.
Michael Sigman, Orlando, for Appellee/Cross-Appellant.
This is an appeal from an order denying a petition for modification seeking alimony termination and a cross-appeal regarding attorney fees. We reverse as to the modification order and affirm the attorney fees order.
The judgment of marital dissolution ordered that appellant pay permanent monthly alimony to appellee which would terminate upon either party's death, her remarriage, or "cohabitation by wife with an unrelated adult except pursuant to a bona-fide, non-romantic house sharing or roommate arrangement."
The evidence in support of the petition for modification is that, after the dissolution, appellee visited one Robert Iacofano on two occasions while he was stationed in Germany. She had both written and telephonic communications with him while he was there and she was here in the United States. When he was separated from the service he came to live with her until he found his own residence. He paid rent, they say, and bought food. While she admitted she wrote checks for him on several occasions, she said he always paid her back. She said that although he had endorsed some of her alimony and equitable distribution checks, it was only when she was out of town. She admitted that she and Iacofano had joint bank accounts, both when he was in Germany and when he came back to the United States. She said that although she had bought clothing for Iacofano he paid her back. Both Iacofano and appellee admitted they had sexual intercourse together; but, they said, it only happened once.
The judge on the petition for modification, who was not the dissolution judge, ruled that the evidence did not "establish that the Former Wife was living together with Robert Iacofano as `husband and wife' as that term is defined in Black's Law Dictionary." Perhaps, but that is not the issue. The judgment says "cohabitation with an unrelated adult." These folks traveled together, she visited him in Germany, twice, they shared living space (her home), shared bank accounts and had sex together. He even cashed her alimony and property settlement checks.
Under the terms of the judgment, the appellee cohabitated with Iacofano, an unrelated adult in a romantic relationship. The alimony should have terminated. Appellant should not be obligated to support this arrangement.
REVERSED as to the modification order and REMANDED for entry of an order terminating permanent alimony.
COBB, J., concurs.
ANTOON, J., concurs in part; dissents in part, with opinion.
I concur with the majority's decision to affirm the trial court's order regarding attorney's fees. However, as for the majority's ruling on the modification order, I respectfully dissent.
The question on appeal is whether the trial court abused its discretion in concluding that the wife was cohabitating with Iacofano in a "bona fide, nonromantic house-sharing or roommate arrangement." Hunt v. Hunt, 394 So.2d 564 (Fla. 5th DCA 1981). While the evidence recited by the majority is persuasive, and would have been sufficient to sustain a finding of cohabitation, it is not so conclusive that the court's contrary ruling was an abuse of discretion.