NOT FINAL UNTIL TIME EXPIRES
TO FILE REHEARING MOTION
AND, IF FILED, DISPOSED OF.
IN THE DISTRICT COURT OF APPEAL
JULY TERM, A.D. 2005
MIGUEL ANGEL RODRIGUEZ,
CASE NO. 3D04-2398
TRIBUNAL NO. 01-30911
Opinion filed September 28, 2005.
An Appeal from the Circuit Court for Miami-Dade County,
Judith L. Kreeger, Judge.
John G. Crabtree, for appellant.
Perez-Abreu & Martin-Lavielle and Andy W. Acosta and Javier
Perez-Abreu, for appellee.
Before RAMIREZ, WELLS, and CORTIÑAS, JJ.
Marina Esteva appeals from that portion of a final judgment
believed that such an award was precluded as a matter of law.
Because we cannot discern from the record or the final judgment
whether denial of the award was predicated on an exercise of
discretion or on a mistaken view of the law, we reverse as to
should be granted.
The parties were married for sixteen years and have one son
who has now attained majority.
The former wife is a long-time
school teacher currently earning approximately $71,000 a year,
Although she was diagnosed with fibromyalgia in
1996, she has continued to work full time without interruption.
The former husband, the former wife’s junior by nine years,
During the marriage, the former husband, with a number
businesses which, in recent years, generated between $78,000 and
consequence of both parties’ earnings and efforts, the parties
were able to accumulate a marital estate valued at almost $1
The trial judge questioned whether an award of nominal
modification in the future should her medical condition worsen,
might be appropriate.
The former husband opposed this, arguing
that the wife’s income adequately covered her needs and that no
such award was appropriate where there was no evidence that such
an award would be necessary in the foreseeable future.
end of the proceedings, the trial court indicated a desire to
award nominal alimony because of the wife’s medical condition
We have a woman who is in her mid 50’s who has various
infirmities which allow her this minute as we sit here
She’s seven years older than her husband.
That’s a long-term marriage. They’ve had a nice
It’s not a super affluent lifestyle, but
it’s a comfortable lifestyle that enabled Rolex
watches, diamonds rings, fine antique jewelry, tacking
personal vacation time onto convention trips, private
school for their child from day one, so we can
describe this—they lived in that gracious home—you can
describe this lifestyle not as affluent, but certainly
She sits in the position in my judgment because of her
medical condition of being royally shafted, and I’m
being very blunt, and that’s my concern in this case,
and so what I want to see is if the law allows me to
protect that, and there’s hard ball being played here
and I’m very much aware of it. I’m very much aware of
In Roy v. Roy,
522 So. 2d 75, 76 (Fla. 4th DCA 1988), the
the rule, generally, is that where there is a
likelihood of a change in circumstances in the future
that would warrant an award of alimony, the court
should retain jurisdiction, Brown v. Brown, 440 So. 2d
16 (Fla. 1st DCA 1983). Otherwise, the court should
not retain jurisdiction. In other words, there must
circumstances to take place in the future as would at
that time support an award of alimony.
In Burdick v. Burdick, 601 So. 2d 632 (Fla. 4th DCA 1992),
the court affirmed an order denying nominal alimony to a wife
who suffered from lupus, a degenerative disease, observing:
The wife argues that the trial court abused its
discretion when it denied her prayer for an award of
permanent alimony of $1.00 per year and failed to
reserve jurisdiction to modify the alimony in the
future. She contends that her medical condition
creates the likelihood that there will be a change in
circumstances in the future which will necessitate an
increase in her alimony. Had the trial court opted to
reserve jurisdiction to modify the alimony award in
the future, we would have had no difficulty affirming
such a decision. Nevertheless, the question of whether
to reserve jurisdiction in the final judgment lies
within the trial court's sound discretion. Roy v. Roy,
522 So. 2d 75 (Fla. 4th DCA 1988). Reasonable persons
could differ as to the propriety of the court's
action. We hold that the court did not abuse its
discretion. Canakaris v. Canakaris, 382 So. 2d 1197,
1203 (Fla. 1980).
Burdick, 601 So. 2d at 634 (emphasis added).
In the instant case, the trial court found that the former
wife had "several debilitating health problems" that were "long
standing and chronic."
As Burdick confirms, while these facts
may have been sufficient to support a nominal, permanent alimony
modifications), they do not mandate such an award.
See § 61.14,
Fla. Stat. (2004) (authorizing modification of alimony payments
upon changes in circumstances or financial ability of either
permanent periodic alimony that is capable of being modified”
medical expenses); see also Bridges v. Bridges, 842 So. 2d 983,
984 (Fla. 1st DCA 2003) (concluding that it is appropriate to
interests should that spouse experience a significant change in
The problem here is that the record suggests
that the court did not believe that it had the legal authority
to make a nominal alimony award.
Thus denial of the former
wife’s alimony request may be predicated on an error of law
rather than on an appropriate exercise of discretion.
the difference between this case and Burdick, and why we reverse
for the court's consideration of this issue.
Accordingly, we reverse that part of the final judgment
denying the former wife's request for alimony and remand for the
trial court either to exercise its discretion, if it has not
already done so, in light of the legal principles acknowledged
herein or to reconfirm its decision if it has already done so.
The remainder of the final judgment is affirmed.