192 So. 3d 1263
Fla. Dist. Ct. App.2016Background
- Parties: Jennifer Jean Kruse (Former Wife) and Martin Ivan Levesque (Former Husband); married Dec. 31, 2002 (scrivener error in judgment noted) and separated Nov. 2012; marriage ≈ 11 years (moderate-term).
- Former Wife: diagnosed disabled by SSA effective Feb. 12, 2007 (fibromyalgia, back disorders, TBI, ADHD controlled by medication); stopped working in 2007; receives net Social Security disability ~$711/month and has monthly expenses of $2,352, leaving a deficit.
- Former Husband: employed as a chief operating officer in the software industry; gross monthly income ~$9,750 and net ~$7,315; supported the parties financially since 2007.
- At trial Former Wife presented treating physician, vocational rehabilitation counselor (opined she is currently not able to work), and disability-attorney testimony; Former Husband introduced a psychologist who hypothesized medication-related cognitive issues.
- Trial court found Former Wife disabled and unable to return to work, found need and Husband’s ability to pay, but awarded durational alimony of $1,800/month for four years instead of permanent periodic alimony.
- Appeal: Former Wife challenged the durational-alimony award as an abuse of discretion given her disability and inability to become self-supporting; appellate court reversed and remanded for permanent periodic alimony.
Issues
| Issue | Kruse's Argument | Levesque's Argument | Held |
|---|---|---|---|
| Whether durational alimony was proper where wife is disabled and cannot return to work | Trial evidence (SSA determination, treating physician, vocational expert) proves by clear and convincing evidence that permanent alimony is required | Argued some impairment attributable to prescribed medication; contested permanency of disability | Reversed: durational alimony was an abuse of discretion; remanded for permanent periodic alimony because wife lacks actual or potential capacity for self-support |
Key Cases Cited
- Doganiero v. Doganiero, 106 So. 3d 75 (Fla. 2d DCA 2013) (appellate review of alimony award for abuse of discretion)
- Fichtel v. Fichtel, 141 So. 3d 593 (Fla. 4th DCA 2014) (alimony award standards)
- Udell v. Udell, 998 So. 2d 1168 (Fla. 2d DCA 2008) (limits on trial court discretion in alimony decisions)
- Taylor v. Taylor, 177 So. 3d 1000 (Fla. 2d DCA 2015) (four-step framework for alimony decision-making)
- Ruszala v. Ruszala, 360 So. 2d 1288 (Fla. 2d DCA 1978) (permanent alimony warranted where spouse disabled with little potential for self-support)
- Lash v. Lash, 307 So. 2d 241 (Fla. 2d DCA 1975) (rehabilitative alimony presupposes potential for self-support)
- G'Sell v. G'Sell, 390 So. 2d 1196 (Fla. 5th DCA 1980) (remand for permanent alimony where no actual or potential capacity for self-support)
- Levy v. Levy, 900 So. 2d 737 (Fla. 2d DCA 2005) (consideration of permanent periodic alimony where disability arose after marriage and income limited)