NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING
MOTION AND, IF FILED, DETERMINED
IN THE DISTRICT COURT OF APPEAL
OF FLORIDA
SECOND DISTRICT
ELIZABETH J. JOHNSON, )
)
Appellant, )
)
v. ) Case No. 2D16-4890
)
MARC D. JOHNSON, )
)
Appellee. )
___________________________________)
Opinion filed June 8, 2018.
Appeal from the Circuit Court for
Hillsborough County; Richard A. Nielsen,
Judge.
David A. Maney of Maney Damsker Jones &
Kuhlman, P.A., Tampa, for Appellant.
Marc D. Johnson, pro se, and Daniel A.
Larson and Scott Anderson of Larson
Johnson, P.L., Tampa, for Appellee.
NORTHCUTT, Judge.
Elizabeth Johnson appeals the amended final judgment dissolving her
marriage to Marc Johnson. She contends that a new trial is necessary because the trial
court failed to issue a ruling in the case for over two and one-half years following the
final hearing. She also argues that under the facts found in the amended final
judgment, she should have been awarded permanent periodic alimony. We agree on
both accounts, and we reverse and remand for a new trial.
In McKenzie v. McKenzie,
672 So. 2d 48, 49 (Fla. 1st DCA 1996), a year
passed between the final hearing and the entry of the final divorce judgment. The First
District noted that two inconsistencies in the judgment suggested that the trial court may
not have recalled the evidence presented at the hearing.
Id. at 49 n.1. Because of the
unreasonable delay, the court reversed the final judgment of dissolution and remanded
for a new final hearing. The court observed:
Florida Rule of Judicial Administration 2.050(f)
provides that a judge has a duty to rule upon a matter
submitted to him or her "within a reasonable time." A
presumptively reasonable time period for the completion of a
contested domestic relations case is 180 days from filing to
final disposition. Fla. R. Jud. Admin. 2.085(d)(1)(C). The
instant case involved a delay in excess of twice what is
deemed presumptively reasonable, just in the period
between the hearing and final judgment. This requires a new
trial.
Id. at 49.
This court cited McKenzie when deciding McGoldrick v. McGoldrick,
940
So. 2d 1275 (Fla. 2d DCA 2006). There, the final judgment of dissolution was issued
eight months after the evidentiary hearing.
Id. at 1276. In that circumstance, the
McGoldrick court held that "[i]n determining whether a delayed ruling warrants reversal
and retrial, the critical determinations are: (1) the existence of conflict between the
judge's statements or findings at trial and the ultimate judgment entered and (2) the
presence of unsupported factual findings in the final judgment."
Id. Beyond that, the
court stated:
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We are also concerned that if we do not remand for a
new trial, the passage of time between the trial and this
opinion would likely have produced changed circumstances,
causing one or both of the parties to seek modification of
whatever partial result we might have affirmed. Additionally,
intervening case law may require a different result than the
law in effect when the case was tried.
Id. at 1277.
In the present case, the delay between the final hearing and the issuance
of the judgment was two and a half times that in McKenzie and almost four times longer
than in McGoldrick. As such, this case is akin to McDaniel v. McDaniel,
780 So. 2d 227,
228 (Fla. 2d DCA 2001), in which this court held that a forty-month delay between a
hearing on a motion to clarify the dissolution of marriage judgment and the order
granting the motion was "per se unreasonable and unacceptable."
Likewise, we conclude that the delay of thirty-three months in this case
was unreasonable and unacceptable. This is particularly so when we consider the
concern expressed in McGoldrick about the probability that the parties' circumstances
would have changed during the lengthy period between the trial and the issuance of the
opinion. Here, Ms. Johnson is afflicted with a significant chronic health condition.
During the extended delay between the final hearing and the judgment, she twice
unsuccessfully sought to reopen the evidentiary portion of the case due to alleged
deteriorating health, something that very likely could have had a bearing on her earning
ability.
Owing to the inherently unreasonable delay in issuing the judgment,
during which the trial court twice declined to take evidence regarding alleged significant
changes of circumstance since the final hearing, we cannot conclude that the amended
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judgment accurately or fairly addressed the equities of the case or the needs and
abilities of the parties. Therefore, we affirm only the dissolution of the parties' marriage.
We reverse on all other issues and remand for a new trial before a successor judge.
See McGoldrick,
940 So. 2d at 1277.
For purposes of the proceedings on remand, we note that the facts found
in the amended judgment did not rebut the presumption that Ms. Johnson is entitled to
permanent periodic alimony. See Fortune v. Fortune,
61 So. 3d 441, 446 (Fla. 2d DCA
2011) (holding that a long-term marriage creates a presumption in favor of permanent
periodic alimony); see also § 61.08(4), Fla. Stat. (2015) (defining a long-term marriage
as having a duration of seventeen years or longer); Dickson v. Dickson,
204 So. 3d 498,
502-03 (Fla. 4th DCA 2016). To the contrary, those findings underscored the necessity
of a permanent alimony award: Ms. Johnson spent most of the eighteen-year marriage
out of the workforce, serving as a parent and homemaker. She suffers from a "severe
case" of a chronic malady that requires her to work in a "sheltered" employment
environment; during the divorce proceedings she began working in her brother's
insurance agency. Based on evidence presented two and one-half years previously,
the court determined that Ms. Johnson has the ability to earn $31,800 per year, and
thus she "does not have the capability of being fully self-supporting or living in a lifestyle
similar to the marital lifestyle" that was based on her attorney-husband's income of over
$19,000 per month.
Yet the court awarded Ms. Johnson only durational alimony and only until
she reaches age sixty-two. Florida's alimony statute provides that durational alimony
may be awarded "if there is no ongoing need for support on a permanent basis."
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§ 61.08(7). Under the facts found by the trial court—and especially considering its
failure to identify any fact suggesting that Ms. Johnson had no ongoing need for support
on a permanent basis—its conclusory assertion that durational alimony "is the only fair
and reasonable form of alimony" in this case was contrary to law, arbitrary, and an
abuse of discretion. See, e.g., Taylor v. Taylor,
177 So. 3d 1000, 1004 (Fla. 2d DCA
2015); Dickson, 204 So. 3d at 498.
Dissolution of marriage is affirmed, final judgment reversed in all other
respects, and case remanded for a new trial before a successor judge.
CRENSHAW and SALARIO, JJ., Concur.
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