Kruse v. Levesque

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING
MOTION AND, IF FILED, DETERMINED

IN THE DISTRICT COURT OF APPEAL
OF FLORIDA
SECOND DISTRICT

JENNIFER JEAN KRUSE, f/k/a )
JENNIFER KRUSE LEVESQUE, )
)
Appellant, )
)
v. ) Case No. 2D15-1391
)
MARTIN IVAN LEVESQUE, )
)
Appellee. )
)

Opinion filed June 10, 2016.

Appeal from the Circuit Court for Pinellas
County; Amy M. Williams, Judge.

Christin C. Brennan of Meros, Smith,
Lazzara, Brennan, Brennan & Olney,
P.A., St. Petersburg, for Appellant.

Jane H. Grossman, St. Petersburg, for
Appellee.

WALLACE, Judge.

Jennifer Jean Kruse, f/k/a Jennifer Kruse Levesque (the Former Wife)

appeals the final judgment that dissolved her moderate-term marriage to Martin Ivan

Levesque (the Former Husband). The Former Wife challenges the trial court's decision

to award her durational alimony instead of permanent periodic alimony, and she also

challenges a separate evidentiary ruling. There is no cross-appeal. Because the trial
court found that the Former Wife was disabled and the undisputed evidence established

that she was unable to return to work, the trial court abused its discretion in awarding

durational instead of permanent periodic alimony. Accordingly, we reverse the award of

durational alimony and remand for an award of permanent periodic alimony to the

Former Wife.

I. THE FACTS

The parties met while they were both attending college. They were

married on December 31, 2002,1 and they separated in November 2012. The parties

did not have any children. The Former Wife filed her petition for dissolution of the

marriage on November 15, 2013. Thus the parties' marriage lasted for almost eleven

years, making it a moderate-term marriage. See § 61.08(4), Fla. Stat. (2013). At the

time of the final hearing, the Former Husband was forty-two years old; the Former Wife

was forty-three.

The Former Husband has a degree in information management systems.

During the term of the marriage, he was employed in the computer industry. At the time

of the final hearing, the Former Husband had a gross income of $9750 per month. His

net monthly income was $7315 per month.

The Former Wife has a degree in psychology. When the parties began

their married life, she was working as a counselor and earned approximately $25,000

annually. Later, the Former Wife began to experience back pain and other maladies. In

1
As a result of a scrivener's error, the Final Judgment of Dissolution
Marriage erroneously states the date of the parties' marriage as December 31, 2012.

-2-
2007, with the Former Husband's agreement, the Former Wife stopped working and

began the process of applying for Social Security disability.

On March 29, 2013, an administrative law judge (the ALJ) ruled that the

Former Wife had been disabled under sections 216(i) and 223(d) of the Social Security

Act since February 12, 2007. The ALJ determined that the Former Wife "has the

following severe impairments: fibromyalgia, impairment of the right upper extremity,

traumatic brain injury, [and] disorders of the back." The ALJ also found that the Former

Wife suffered from "attention deficit and hyperactivity ('ADHD')," but noted that "this

condition is well controlled with medication." The Former Wife's traumatic brain injury

and the related impairment of her right arm predated the marriage. However, the

Former Wife's fibromyalgia and back problems did not arise until after the marriage.

The fibromyalgia and back problems ultimately led to the Former Wife's decision to stop

working in 2007.

At the time of the final hearing, the gross amount of the Former Wife's

disability payment was $880 per month. The net amount that she received after a

deduction for insurance was $711 per month. The Former Wife did not have any other

income.

The parties had enjoyed a modest lifestyle and did not have substantial

assets. They had purchased a home at the height of the real estate boom of the last

decade. The parties had difficulties making the payments on the home after the Former

Wife stopped working. Real estate prices plummeted at about the same time, and the

parties ultimately disposed of the home through a short sale. The parties amicably

resolved the division of their remaining assets before the final hearing.

-3-
 II. THE EVIDENCE AT THE FINAL HEARING AND THE TRIAL COURT'S RULING

The only contested issue before the trial court at the final hearing was the

Former Wife's request for an award of permanent periodic alimony. In support of her

claim, the Former Wife testified about the adverse impact that her back pain and other

health issues had on her ability to work. She also presented the testimony of her

treating physician. He testified that the Former Wife's medical issues rendered her

incapable of regular employment. Notably, the Former Wife presented the testimony of

a vocational rehabilitation counselor who opined that she was "currently not able to work

in any capacity." Finally, the Former Wife presented the testimony of an attorney who

specialized in Social Security disability and other disability cases. He explained the

process that the Former Wife had to pursue to obtain the determination that she had

been disabled from February 12, 2007. The attorney also testified that the Former

Wife's disability benefits were subject to income taxation.

The Former Husband did not raise a substantial challenge to the evidence

about the Former Wife's medical problems. Instead, the Former Husband attributed the

Former Wife's inability to work to claimed abuse of medications prescribed by the

Former Wife's treating physician. The Former Husband presented his case primarily

through his own testimony and the cross-examination of the Former Wife and her

witnesses. However, the Former Husband also presented the testimony of a licensed

psychologist. Over timely and repeated objections by the Former Wife, the trial court

permitted the psychologist to offer the "hypothesis" that "a part of [the Former Wife's]

problems are related to the brain fog that may be related to her use or her prescribed

use of narcotic pain medications." Because the psychologist was not qualified as a

-4-
medical doctor or a pharmacologist, he qualified his "hypothesis" with the caveat that it

was "something that needs to be evaluated more thoroughly by a medical professional."

The trial court entered a final judgment with detailed findings of fact

concerning the factors set forth in section 61.08(2). The trial court rejected the Former

Wife's request for an award of permanent periodic alimony. Instead, the trial court

awarded the Former Wife durational alimony in the amount of $1800 per month for a

period of four years. Dissatisfied with the award of durational instead of permanent

periodic alimony, the Former Wife brings this appeal.

III. THE FORMER WIFE'S APPELLATE ARGUMENTS

On appeal, the Former Wife makes two points. First, she contends that

the clear and convincing evidence presented at trial only supports an award of

permanent periodic alimony and that no other form of alimony is appropriate under the

circumstances. Second, the Former Wife argues that the trial court erred in permitting

the psychologist called by the Former Husband to testify about lay opinions that were

not within any degree of psychological certainty. Based on our disposition of this case,

we need not consider the Former Wife's second argument.

IV. DISCUSSION

Our review of the trial court's decision to award durational instead of

permanent alimony is for abuse of discretion. See Doganiero v. Doganiero, 106 So. 3d

75, 78 (Fla. 2d DCA 2013); Fichtel v. Fichtel, 141 So. 3d 593, 595 (Fla. 4th DCA 2014).

However, the trial court's discretion in this regard is not unlimited. See Doganiero, 106

So. 3d at 78 (citing Udell v. Udell, 998 So. 2d 1168, 1170 (Fla. 2d DCA 2008)).

-5-
 The trial court's detailed findings of fact are critical to our resolution of this

case. The trial court found—in accordance with the prior determination by the Social

Security Administration and the other evidence presented—that the Former Wife is

disabled. The first factor pertinent to this determination is mood disorders and the

second is fibromyalgia. The trial court also found that the Former Wife's net income

from Social Security is $7112 per month. The Former Wife has no other sources of

income. With expenses of $2352 per month, the Former Wife has a deficit of $1641 per

month. The trial court further found that the Former Husband has a good paying job as

a chief operating officer of a software company at which he earns approximately $9750

per month. With regard to the parties' circumstances during the six to seven years

preceding the final hearing, the trial court found that "[s]ince 2007, when the [Former]

Wife stopped working, the [Former] Husband has supported both the parties from 2007

until current, with the sole exception of the [Former] Wife's Social Security Disability

benefits."

Based on the undisputed evidence before it, the trial court properly

concluded that "[t]he [Former] Wife has a need and the [Former] Husband has the ability

to pay alimony." Particularly pertinent to our review is the trial court's finding that the

testimony presented established "that the [Former] Wife is not able to return to work."

Notably, the trial court made no finding that the Former Wife could reacquire the

capacity for self-support in the foreseeable future or that her need for support was likely

to change. The Former Wife's inability to return to work or to become self-supporting—

2
As a result of a scrivener's error, this figure appears as "$771" in the Final
Judgment of Dissolution of Marriage. The trial court's calculations were not affected by
this error.

-6-
as the trial court properly noted—eliminated the possibility of an award of rehabilitative

alimony as a topic for consideration.

Using the four-step framework for the decision-making process for alimony

as explained in Taylor v. Taylor, 177 So. 3d 1000, 1002-03 (Fla. 2d DCA 2015), we may

review the trial court's consideration of the alimony issue in this case. In the first step,

the trial court properly determined that the Former Wife had an actual need for alimony.

In the second step, the trial court also properly determined that the Former Husband

had the ability to pay support. At the third step, the trial court was required to determine

which type or types of alimony to select as the appropriate remedy under all of the

circumstances. It was at the third step that the trial court's analysis went awry.

In accordance with section 61.08, the trial court had four possible

approaches to the alimony question: (1) bridge-the-gap alimony under subsection

61.08(5); (2) rehabilitative alimony under subsection 61.08(6); (3) durational alimony

under subsection 61.08(7); and (4) permanent alimony under subsection 61.08(8).

Taylor, 177 So. 3d at 1003. In accordance with subsection 61.08(1), the trial court had

the authority to award "any combination of these forms of alimony." Taylor, 177 So. 3d

at 1003 (quoting the statute).

In this case, bridge-the-gap alimony was obviously inappropriate. And, as

the trial court noted, rehabilitative alimony could not be considered because the

evidence established "that the [Former] Wife is not able to return to work." Moreover,

neither party had presented the trial court with "a specific and defined rehabilitative

plan" as is required before an award of rehabilitative alimony can be made. See §

-7-
61.08(6)(b). By a process of elimination, the trial court's two remaining choices were

durational alimony and permanent alimony.

Regarding durational alimony, section 61.08(7) provides, in pertinent part,

as follows:

Durational alimony may be awarded when permanent
periodic alimony is inappropriate. The purpose of durational
alimony is to provide a party with economic assistance for a
set period of time following a marriage of short or moderate
duration or following a marriage of long duration if there is no
ongoing need for support on a permanent basis.

On the other hand, "[p]ermanent alimony may be awarded to provide for the needs and

necessities of life as they were established during the marriage of the parties for a party

who lacks the financial ability to meet his or her needs and necessities of life following a

dissolution of marriage." § 61.08(8). Because the parties' marriage was of moderate

duration, the trial court could make an award of permanent periodic alimony to the

Former Wife only "if such an award is appropriate based upon clear and convincing

evidence after consideration of the factors set forth in subsection [61.08](2)." Id.

In its consideration of the various factors under section 61.08(2) in this

case, the trial court specifically found that the Former Wife was not able to return to

work. This finding has ample support in the record. Undeniably, the Former Wife’s

expenses exceeded her income from the disability payments. The Former Wife’s

inability to return to work left her with no prospects for additional income. Thus an

award of permanent instead of durational alimony was appropriate because the Former

Wife demonstrated by clear and convincing evidence that she lacked the financial ability

to meet her needs and the necessities of life following the dissolution of the marriage.

The trial court abused its discretion in awarding alimony that would terminate within a

-8-
limited period of time when the record and the trial court's findings showed that the

Former Wife lacked either the actual capacity for self-support or the potential to develop

that capacity. Cf. Ruszala v. Ruszala, 360 So. 2d 1288, 1289 (Fla. 2d DCA 1978)

(reversing an award of rehabilitative alimony and remanding for an award of permanent

periodic alimony where the wife, who was legally blind and was receiving Social

Security disability payments, had "little potential for self-support"); Lash v. Lash, 307 So.

2d 241, 243 (Fla. 2d DCA 1975) (noting that "rehabilitative alimony presupposes the

potential for self[-]support" and "[w]ithout [t]his capacity, there is nothing to which one

can be rehabilitated"); G'Sell v. G'Sell, 390 So. 2d 1196, 1197 (Fla. 5th DCA 1980)

(reversing an award of rehabilitative alimony and remanding for an award of permanent

periodic alimony where the wife did not have the actual or potential capacity for self-

support). Here, the trial court's findings of fact were insufficient to support an award of

durational as opposed to permanent periodic alimony because the clear and convincing

evidence showed that the Former Wife lacked the financial ability to meet her needs

and the necessities of life following the dissolution of her marriage. See § 61.08(8); see

also Doganiero, 106 So. 3d at 78 (questioning whether an award of durational rather

than permanent alimony was appropriate where "the trial court found that the Wife has

limited income potential, that the marriage's duration was 16 years and 10 months, that

the Wife was 49 years of age at the time of the final judgment and the Husband was 52

years of age, and that virtually all of the parties' income came from the Husband's

investments"); Levy v. Levy, 900 So. 2d 737, 744-45 (Fla. 2d DCA 2005) (remanding for

the consideration of an award of permanent periodic alimony in a short-term marriage

-9-
case where the wife was disabled as a result of medical issues arising after the

marriage and her income was limited to Social Security disability payments).

V. CONCLUSION

Based on the evidence in the record and the trial court's findings of fact,

the only form of alimony that was appropriate under the circumstances of this case is

permanent periodic alimony. Thus the trial court abused its discretion in making an

award of durational as opposed to permanent alimony. Accordingly, we reverse the

portion of the final judgment that awards durational alimony and remand for the entry of

an award of permanent periodic alimony in an amount to be determined by the trial

court. The amount of the permanent periodic alimony award need not be in the same

amount as the award of durational alimony. On remand, the trial court shall also amend

the final judgment to reflect the correct date of the parties' marriage. In all other

respects, we affirm the final judgment.

Affirmed in part, reversed in part, and remanded.

LUCAS and SALARIO, JJ., Concur.

- 10 -