ATKINSON v. ATKINSON (2026)

The former wife appeals the circuit court's final judgment of dissolution of marriage that failed to award nominal alimony and did not retain jurisdiction to revisit alimony in the future. Former wife argues that the circuit court improperly considered the former husband's overstated expenses and failed to consider factors that indicate former husband's financial situation would improve. We agree and reverse on this issue. We affirm the final judgment in all other respects.

The parties had been married for eighteen years, a moderate-length marriage under Florida law. Former husband testified at trial that he was 58 years old and was employed as a programmer/analyst. After mediation, the only issue to be determined at trial was the type and amount of alimony. At trial, the parties stipulated to former wife's financial need for alimony. Former wife testified that she works part-time only to maintain insurance.

Former husband testified that he was employed from June 2022 through December 2024 and earned a gross income of $105,663.00 in 2023 and $117,511.00 in 2024. He testified that he left that job for new employment in January 2025 with a gross salary of $126,768.00 and gross monthly income of $10,564.00, as reflected in his third amended family law financial affidavit. Trial testimony was contradictory regarding the monthly income ranging from $9,926.00 to $11,260.34. The issue was not clarified for the circuit court. The trial evidence included testimony that former husband took a job in Florida to allow former wife to care for her parents and to avoid having to move back to Tennessee; in doing so, his salary decreased by approximately $20,000.00 annually. Former husband conceded that his financial affidavits contained errors, including a health insurance expense of $1,294.00 per month which was actually $334.31. He also failed to account for the removal of former wife and their adult daughter from his car insurance, the elimination of certain repairs and maintenance expenses, and adjustments to utilities and telephone costs. In total, the trial evidence showed former husband's expenses in the financial affidavits were overstated by $2,379.69.

Further, former husband testified that the mortgage for the four-bedroom, two-bathroom former marital home was $3,437.00 monthly, which at the time was fifty percent of his monthly income. Former husband stated that he had listed the home for sale and planned to buy a smaller home, reducing his expenses. Former husband also testified that he had a storage unit for which he paid $300.00 each month to store tools while the house was being shown to prospective buyers. The circuit court concluded that former husband functioned at a monthly deficit of $171.31. However, the final judgment indicates that the circuit court reduced former husband's allowable expenses by $1,789.69 or possibly even $2,189.69. The record does not demonstrate that any additional discrepancies in his expenses were tabulated in reaching the bottom line. Accordingly, former husband would have had a monthly surplus of approximately $20.00, not a deficit. The circuit court nonetheless found that “the Wife did not prove that the Husband has the ability to pay alimony. Therefore, neither party shall be entitled to alimony, now or in the future.”

Former wife argued at trial and on appeal that she should have received at least nominal alimony, in part, because former husband's ability to pay will likely change in the future.

Florida's courts have permitted nominal alimony only in narrow circumstances, where a spouse would be entitled to alimony but for the paying spouse's temporary inability to pay, which is reasonably foreseeable to change in the future. See Shaw v. Shaw, 273 So. 3d 1145 (Fla. 2d DCA 2019); Turcotte v. Turcotte, 122 So. 3d 954 (Fla. 2d DCA 2013); Lightcap v. Lightcap, 14 So. 3d 259 (Fla. 3d DCA 2009). “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.” O'Brien v. O'Brien, 396 So. 3d 585, 589 (Fla. 4th DCA 2024) (quoting Brown v. Brown, 440 So. 2d 16, 19 (Fla. 1st DCA 1983) and citing Reed v. Reed, 244 So. 2d 449 (Fla. 1st DCA 1971)).

“Section 61.08, Florida Statutes (2023), authorizes the award of alimony, with subsection (3) setting forth factors that the court ‘shall consider’ in determining the amount and type.” Edman v. Edman, 407 So. 3d 452, 455 (Fla. 4th DCA 2025). “In determining whether to award alimony, the trial court ‘shall first make a specific, factual determination as to whether the party seeking support, maintenance, or alimony has an actual need for it and whether the other party has the ability to pay support, maintenance, or alimony.’ ” Id. Also, “[i]n determining a proper award of alimony, the court may consider any factor necessary to do equity and justice between the parties.” Canakaris v. Canakaris, 382 So. 2d 1197, 1200 (Fla. 1980) (quoting § 61.08, Fla. Stat.).

“[W]hen one party is entitled to permanent periodic alimony but the other spouse has no current ability to pay, the trial court should award a nominal sum of permanent periodic alimony,[¹ ] which will give the court jurisdiction to reconsider the award should the parties’ financial circumstances change.”). Turcotte, 122 So. 3d at 957 (quoting Schmidt v. Schmidt, 997 So. 2d 451, 454 (Fla. 2d DCA 2008)). See Blanchard v. Blanchard, 793 So. 2d 989, 990 (Fla. 2d DCA 2001) (“the trial court abused its discretion when it failed to award the wife $1 in permanent periodic alimony to reserve her future right to alimony in light of the husband's work history during this long-term marriage”); Stock v. Stock, 693 So. 2d 1080, 1082 (Fla. 2d DCA 1997) (affirming reservation of jurisdiction to determine alimony award in the future when the evidence showed “a likelihood that there will be a change in circumstances that would enable the husband to meet his obligation to contribute to the wife's support”).

A trial court's factual findings regarding nominal alimony are reviewed for abuse of discretion. See O'Brien, 396 So. 3d at 587; Roy v. Roy, 522 So. 2d 75, 76 (Fla. 4th DCA 1988) (“[W]hether to reserve jurisdiction to award alimony in the future lies within the court's discretion”); Brown, 440 So. 2d at 18; Shaw v. Shaw, 334 So. 2d 13 (Fla. 1976); Schmidt, 997 So. 2d at 454.

We reversed a circuit court's order in O'Brien that failed to award nominal alimony and retain jurisdiction, finding that while competent substantial evidence supported the circuit court's determination that the former husband did not have the current ability to pay alimony, the circuit court erred in failing to award nominal alimony. O'Brien, 396 So. 3d at 587. In O'Brien, the evidence suggested that, while the former husband did not have the current ability to pay, he had received recent raises and would soon pay off pending debts. Id. at 589. Just as in O'Brien, the testimony here was that former husband's financial circumstances would improve when the marital home was sold, and he would have a less expensive mortgage. Former husband also would no longer need a storage unit after the home's sale.

Under the circumstances of this case and consistent with our precedent, we conclude that the circuit court erred when it denied former wife nominal alimony. Accordingly, we reverse and remand for the circuit court to award nominal alimony to former wife and to reserve jurisdiction should a future basis arise to revisit alimony. In all other respects, the final judgment is affirmed.

Affirmed in part, reversed in part, and remanded for further proceedings consistent with this opinion.

FOOTNOTES

1.   We recognize that the Florida legislature effectively eliminated permanent alimony in 2023. However, the ability of circuit courts to award nominal alimony was not affected. § 61.08(1)(a), Fla. Stat. (2023).

Shepherd, J.

Gross and Forst, JJ., concur.