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Losing Alimony in Florida Divorce Cases — Hill v. Hill (Part II)

The dissent in Hill v. Hill, 36 Fla. L. Weekly D 475 (Fla. 3rd DCA, March, 2, 2011) saw the case much differently than the majority. The dissenting Judge saw the majority’s opinion as overturning the trial court’s order from 1990, even though the time for appealing the decision had expired long ago, and the Husband had never appealed. The trial judge’s order in 1990 provided that the trial court was retaining jurisdiction to address alimony at a later date, in contemplation of the Husband’s income increasing when he began receiving his pension. From the dissent’s perspective, that decision became final thirty days after it was filed, and if the Husband had been dissatisfied with the order he should have appealed within the required time-frame.

The dissenting opinion also addressed several legal arguments regarding whether the Husband had “waived” any objection regarding jurisdiction to consider alimony, and whether the appeals court had the authority to decide the case based on a jurisdiction issue, when the Husband’s attorney hadn’t “raised” (made) this argument as part of his appeal. The dissent points out that the jurisdiction issue was first raised by the appeals court itself during the oral argument, neither attorney argued the jurisdiction issue in their legal briefs or addressed it during oral argument, and that the majority had not asked the attorneys to address the issue in supplemental briefs.

The dissent points out that if the Husband had appealed the reservation of jurisdiction over alimony in 1990, the appeals court would not have made a decision like it was doing now which takes alimony away from the Wife forever, but rather would have “remanded” the case back to the trial court to enter appropriate findings of fact. Remanded basically means to send the case back to the trial court, with instructions as to what the appeals court wants the lower (trial) court to do.

The majority opinions, on the other hand, in effect said that the Wife or the Wife’s attorney at the time of the trial in 1990, was responsible for insuring that the order contained all the proper findings to support reservation of jurisdiction regarding alimony; that the Wife should have appealed to make sure the order had what it needed to have; and if the order did not contain the required findings it had no legal effect. There are also ways short of an appeal to correct an order before it becomes final, by filing an appropriate motion. In practice, sometimes the Judge prepares the final order, for example when a party is not represented, but when a party has an attorney, the Judge usually instructs the prevailing party’s attorney to prepare the order.

As mentioned in Part I of the post, the appeals court decision in the Hill case is not final yet – the Wife’s attorney filed a Motion for Rehearing. I haven’t fully researched yet myself the issues raised by the majority and dissenting opinions, but it’s not infrequent that you think there should be a case out there clearly deciding some issue, but when you check, there isn’t. Sometimes it’s an issue that hasn’t been decided yet by an appeals court, and there are five different state court appeals districts in Florida which sometimes arrive at different decisions regarding the exact same issue. That’s when an issue sometimes ends up before the Florida Supreme Court.

The moral of the story, or advice for spouses now who want to be sure a trial court retains jurisdiction over alimony, is to be sure to include in the Final Judgment all the findings and requirements appeals courts have suggested are necessary for a trial court to properly retain jurisdiction. This includes, after giving due regard for the decisions of the appeals court covering your county and the particular facts of your case, making findings regarding all the relevant factors for determining alimony listed in the Florida alimony statute – F.S. § 61.08, awarding nominal alimony, and addressing the duration of the reservation of jurisdiction. It doesn’t make sense to take chances with an issue as significant as losing the right to possibly receive alimony in the future.


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