Did the First DCA Eliminate Retroactive Alimony?


No. 1D20-2444


On appeal from the Circuit Court for Santa Rosa County. John F. Simon, Jr., Judge. December 22, 2022


In this dissolution appeal, the former husband seeks review of the trial court’s equitable distribution and awards of permanent periodic alimony, retroactive alimony, and attorney’s fees.

The trial court did not make adequate findings supporting the award of permanent periodic alimony. The final judgment of dissolution of marriage did not make clear how the trial court resolved the conflicting evidence concerning Appellee’s monthly living expenses and thus how it calculated her financial need as is required. See Winney v. Winney, 979 So. 2d 396, 401 (Fla. 1st DCA 2008) (reversing where final judgment did not explain how trial court resolved conflicting evidence relevant to determining the alimony award). Additionally, the trial court failed to make adequate findings concerning Appellant’s ability to pay alimony.

The final judgment noted that Appellant had the ability to pay at least the $2,600 per month of court-ordered temporary support but did not explain how the court determined that Appellant could pay the $5,500 per month in permanent alimony ultimately awarded.

“‘The financial needs of one spouse and the ability of the other spouse to pay are the primary factors for the trial court to consider,’ and ‘the lack of adequate findings hampers meaningful appellate review.’” Justice v. Justice, 80 So. 3d 405, 408 (Fla. 1st DCA 2012) (quoting Austin v. Austin, 12 So. 3d 314, 317–18 (Fla. 2d DCA 2009) (citations omitted)).

We reverse the final judgment with instruction that the trial court make findings determining specific amounts for Appellee’s need for alimony and Appellant’s ability to pay and showing how the court arrived at these numbers. We note that the trial court must use Appellant’s net income in determining his ability to pay. See Kingsbury v. Kingsbury, 116 So. 3d 473, 474 (Fla. 1st DCA 2013) (“The ability to pay alimony should be based on the party’s net income.”). Moreover, if the trial court awards permanent periodic alimony, it must make the required finding that no other form of alimony is appropriate. See § 61.08(8), Fla. Stat. (“In awarding permanent alimony, the court shall include a finding that no other form of alimony is fair and reasonable under the circumstances of the parties.”).

We also reverse the trial court’s determination of equitable distribution because the valuation of Appellant’s business included only business assets and failed to take liabilities into account. On remand, the final order must recalculate the equitable distribution after properly accounting for the business’s liabilities. See King v. King, 313 So. 3d 887, 891 (Fla. 1st DCA 2021) (“In determining a company’s fair market value, a trial court making an equitable distribution must consider all the company’s assets and all its liabilities.”).

The order awarding trial court attorney’s fees references certain hourly rates and total amounts of fees to which the parties apparently stipulated during a November 24, 2020, hearing. The transcript of this hearing is not in the record on appeal. However, because the order does not make the specific findings required by Fla. Patient’s Comp. Fund v. Rowe, 472 So. 2d 1145, 1151–52 (Fla. 1985), including the hourly rate, the number of hours reasonably expended, and any appropriate reduction or enhancement factors, we reverse. Additionally, the trial court must reconsider the appropriateness of an attorney’s fees award after it reconsiders equitable distribution and alimony and considers any changes to the parties’ relative financial circumstances. Because the purpose of awarding attorney’s fees is to ensure that the parties have a similar ability to obtain competent counsel, if equitable distribution places the parties in substantially similar financial positions, it is an abuse of discretion to award attorney’s fees to one party. See Stewart v. Stewart, 290 So. 3d 607, 609 (Fla. 1st DCA 2020). If the court again awards Appellee attorney’s fees, it must make written findings that after the equitable distribution, Appellee remains in need of assistance to obtain competent counsel. See id.

Appellant also argues on appeal that the trial court did not make adequate findings supporting its determination of
retroactive alimony. A panel of this Court recently found in Iarussi v. Iarussi that “[r]etroactive alimony is a creation of the courts” prohibited by the separation of powers set forth in article II, section 3 of the Florida Constitution. 2022 WL 6890716, at *6-7 (Fla. 1st DCA Oct. 12, 2022) (Long, J., concurring) (concurrence joined by the other two panel judges); see Greene v. Massey, 384 So. 2d 24, 27 (Fla. 1980) (explaining that a concurring opinion is precedent if concurred in by a majority of the court). Accordingly, the Court reverses the trial court’s award of retroactive alimony in the final judgment in this case.

M.K. THOMAS, J., concurs; MAKAR, J., concurs in part and dissents in part with opinion.

Not final until disposition of any timely and authorized motion under Fla. R. App. P. 9.330 or 9.331.

MAKAR, J., concurring in part and dissenting in part.

I concur with the majority’s disposition of this case except for that portion addressing the retroactive alimony issue. Retroactive alimony has been an accepted part of Florida’s marital dissolution jurisprudence for forty years. For decades, trial courts have granted, and appellate courts have routinely reviewed, retroactive alimony awards, which are simply an accepted way of ensuring that a spouse entitled to alimony is awarded what is due for the period dating back to the filing of the petition for dissolution. For instance, if a final judgment awards $1000 of monthly alimony prospectively, and the trial judge determines this amount was due during the pendency of the case (say for 12 months), an award of $12,000 is included in the final judgment.

Every district court of appeal has recognized and upheld the concept.

An award of retroactive alimony is simply a nunc pro tunc award (“now for then”) of the type recognized in American and
English courts for centuries. Mitchell v. Overman, 103 U.S. 62, 63–65 (1880) (noting that “the rule established by the general concurrence of the American and English courts is, that where the delay in rendering a judgment or a decree arises from the act of the court . . . or of any other cause not attributable to the laches of the parties, the judgment or the decree may be entered retrospectively, as of a time when it should or might have been entered up”); Fla. Dev. Co. v. Polk Cnty. Nat’l Bank, 80 So. 560, 562 (Fla. 1919) (“The power of the court to enter judgments nunc pro tunc is universally conceded. It is one which has been recognized and exercised from ancient times and as a part of the court’s common-law jurisdiction.”). Indeed, it is a court’s responsibility to ensure that parties are not disadvantaged by the passage of time. Mitchell, 103 U.S. at 65. (“[I]t is the duty of the court to see that the parties shall not suffer by the delay. A nunc pro tunc order should be granted or refused, as justice may require in view of the circumstances of the particular case.”).

In this case, docketed on August 21, 2020, the former husband contends that the trial court erred by failing to make factual
findings “regarding the wife’s need or the husband’s ability to pay during the relevant time period.” As this Court recently held, a “trial court may award retroactive alimony when appropriate, but it must be based on the receiving spouse’s need and the paying spouse’s ability to pay.” Abbott v. Abbott, 187 So. 3d 326, 328 (Fla. 1st DCA 2016). Even more recently, this Court ruled that an award of retroactive alimony “must be based on the receiving spouse’s need during the retroactive period and the payor spouse’s ability to pay during the retroactive period.” Kurtanovic v. Kurtanovic, 248 So. 3d 247, 252 (Fla. 1st DCA 2018). Here, because the trial court failed to make specific findings required by these precedents, the award of retroactive alimony should be reversed and remanded to make the proper findings of past need and ability to pay and to recalculate the amount of retroactive support owed.

The majority, however, annuls the retroactive alimony award, concluding that retroactive alimony is now prohibited by
separation of powers principles, relying on Iarussi v. Iarussi, 47 Fla. L. Weekly D2079 (Fla. 1st DCA Oct. 12, 2022), 2022 WL 6890716.

In Iarussi, neither of the parties argued that retroactive alimony was impermissible; why would they when it has been
accepted law for decades? Instead, the former husband merely quibbled over whether the award of retroactive alimony was factually supportable, saying his former wife “has no need for durational or retroactive alimony.” The panel reversed the award, not because retroactive alimony is legally impermissible in Florida, but because the trial court erred by failing to “impute any investment income and did not give sufficient reason for its action.” Id. at *4.

In a footnote, the panel majority signaled its desire to revisit and reverse the long-standing principle that trial judges may enter alimony awards retroactively to the date a dissolution petition is filed. The footnote states:

Judge Long’s concurring opinion, with which all judges on the panel agree, concludes that retroactive alimony is not a legal form of alimony. Former Husband does not argue that a retroactive alimony award is unauthorized, and so we do not address it in the opinion of the Court. However, because we must reverse both the durational and retroactive alimony awards, the parties and the trial court are free to address the issue on remand. Id. at *5 (emphases added). The emphasized language makes clear that the per curiam majority specifically decided the case solely on the issue presented in the parties’ briefs. It did not, on its own, overturn the long-standing statewide and district wide availability of retroactive awards of alimony; indeed, it lacked the authority to do so because the judicial power to overturn district precedent requires an en banc proceeding

That all three judges joined a concurring opinion does not make it binding precedent, particularly when the panel itself
indicates that the concurrence is not the basis for its decision and is thereby purely dicta, i.e., a judicial commentary “that is unnecessary to the decision in the case and therefore not precedential.” Bryan A. Garner et al., The Law of Judicial
Precedent 792 (2016) (definition of dictum). The panel in Iarussi should be taken at its word: “we do not address [retroactive alimony] in the opinion of the Court.” Iarussi, 2022 WL 6890716, at (emphasis added). The “opinion of the Court” is the per curiam opinion, not the concurrence. The concurrence simply offers up a framework for attorneys to seek to overturn the validity of retroactive alimony; indeed, it encouraged the parties and the trial court to do so (“the parties and the trial court are free to address the issue on remand.”). Every indication is that the concurrence is not precedent, but merely a hope that the issue will be taken up for the full court’s consideration at a later time.

In any event, the reasoning of the concurrence is difficult to understand; if adopted, it would cause disruptive changes in
marital dissolution law, creating conflict with every district court of appeal and overturning what has been justifiable and workable
precedent. The concept of retroactive alimony is a simple one: a trial court may award alimony retroactively back to the date a
dissolution petition was filed, provided the requisite findings of need and ability to pay are met. Kurtanovic, 248 So. 3d at 252;
Abbott, 187 So. 3d at 328. The concurrence recognizes that retroactive alimony simply “means awarding alimony in lump sum
in a final judgment, for alimony purportedly owed from the date of the dissolution petition.” Iarussi, 2022 WL 6890716, at *7 (Long, J., concurring). Yet it ignores that the legislature has clearly provided for alimony awards, has not said such awards cannot be made retroactively, and has acquiesced over the past forty years of what has been to date a non-controversial and accepted concept.

Remember, no party in this Court has sought to overturn the use of retroactive alimony awards; none.

Plus, the legislature knows, as is universally recognized, that courts may make retroactive awards nunc pro tunc in many
contexts to ensure that parties are fully and fairly accorded relief in final judgments. It bears repeating what our supreme court said
a hundred years ago: “The power of the court to enter judgments nunc pro tunc is universally conceded. It is one which has been
recognized and exercised from ancient times and as a part of the court’s common-law jurisdiction.” Fla. Dev. Co., 80 So. at 562.
Imagine if a final judgment gets delayed for three years— depriving a spouse of alimony that should have been paid during
that period. Couldn’t a trial court’s final judgment enter an award of alimony retroactively to ensure the delay didn’t unjustly deprive one spouse of necessary alimony? Without the power to impose awards retroactively, the paying spouse has an incentive to
prolong proceedings and pocket the unpaid alimony. The legislature surely understands, and has acquiesced in, the
uncontroversial nature of nunc pro tunc awards to further the interests of justice.

Moreover, it isn’t fair for a court to spontaneously issue an opinion on an unraised/unbriefed issue and tell the parties they
are free to litigate the issue on remand in the trial court, thereby imposing additional costs and burdens on the actual litigants who have made clear they have no disagreement with existing law. For instance, the parties in Iarussi agreed in their partial marital settlement agreement (“PMSA”) that the trial court would reserve jurisdiction to award retroactive alimony if the need and ability to pay were proven for the retroactive period. Yet they are now told to litigate an issue they have no disagreement about; when asked at oral argument, they each agreed that an award of retroactive alimony is permissible in Florida. The former wife in Iarussi justifiably notes that the concurring opinion “will create confusion on remand in the trial court and inevitably force these parties to endure years of more litigation and incur more expenses to flesh out whether retroactive alimony is permitted in Florida and in this case, specifically.” She asks that this Court “wait to determine the issue in a case where the issue is properly before the Court.” Amen.

In conclusion, the concurrence in Iarussi did not change— indeed, could not have changed—this Court’s precedents on the
validity of alimony awards applied retroactively to the filing date of a dissolution petition. As in Iarussi, the parties in this case do not seek to change the law; the former husband simply wants appellate review of the retroactive alimony award to ensure it falls in line with precedent. It does not because the trial court failed to make adequate findings in support of its award of alimony during this period, as the former husband argued. As such, I would reverse the award of retroactive alimony with instruction that the trial court make specific findings of the amount of the former wife’s need for alimony during the retroactive period and the former husband’s ability to pay during the retroactive period.

Bradley G. Johnson of Bradley G. Johnson, P.A., Milton, for Appellant.
J. Rod Cameron of J.Rod. Cameron, PLLC, Pace, for Appellee.

One thought on “Did the First DCA Eliminate Retroactive Alimony?

Add yours

  1. OMG!!! A 2nd horrible 1st DCA case of the day… I’m sure you saw the one where they decided that need for atty fees in paternity cases is different than in dissolution of marriage actions… eg, if you are able to borrow the money to get them paid you don’t have a need for them, smh

    Thank you,

    Robin J. Scher, Esq.

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