2D05-2830 / Nourse v. Nourse

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State: Florida

Court: Florida Southern District Court

Docket No: 2D05-2830

Case Date: 02/09/2007

Plaintiff: 2D05-2830 / Nourse

Defendant: Nourse

Preview:NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING
MOTION AND, IF FILED, DETERMINED
IN THE DISTRICT COURT OF APPEAL
OF FLORIDA
SECOND DISTRICT
CYNTHIA A. NOURSE,                                                                          )
)
Appellant,                                                                                  )
)
v.                                                                                          )   Case No. 2D05-2830
)
DENNIS E. NOURSE,                                                                           )
)
Appellee.                                                                                   )
)
_____________________________________ )
Opinion filed February 9, 2007.
Appeal from the Circuit Court for Lee County;
G. Keith Cary, Judge.
Gary S. Dolgin, Tampa, for Appellant.
Sandra A. Sutliff, Port Charlotte, for Appellee.
CURRY, CHARLES B., Associate Judge.
Cynthia A. Nourse (“wife”) appeals the judgment of dissolution of her
twenty-three-year marriage to Dennis E. Nourse (“husband”) and challenges the trial
court’s determination of equitable distribution, alimony award, and denial of her request
for attorney’s fees.   We have carefully reviewed the record and have determined that
the trial court’s award of equitable distribution was supported by competent, substantial
evidence in the record and is not an abuse of discretion.    We affirm the equitable

distribution as well as the trial court’s award of attorney’s fees without further
discussion.   However, because we find that the trial court should have awarded at least
nominal permanent alimony, we reverse.
The Nourses were married on June 9, 1979.   They did not have any
children.   Both parties have college degrees.   The husband is employed with the State
of Florida, although he has been informed that his position will be terminated within
three to five years.   The wife worked from her home for about fifteen years assembling
goggles for an eyewear distributing company, but she is currently unemployed.   The
wife claims that she is currently permanently disabled as a result of bipolar disorder,
diagnosed approximately fifteen years before the dissolution, and can no longer obtain
meaningful work.   Her claim was supported by unrebutted testimony from her physician.
The trial court denied the wife’s request for permanent alimony, awarding
her only $9000 of bridge-the-gap alimony, i.e., $500 per month for eighteen months, “to
assist her in her transition from marriage to single life.”   The trial court further
determined that both parties were leaving the marriage in essentially comparable
financial positions, “except for the wife’s current unemployment,” and based its decision
to award bridge-the-gap alimony on its finding that the wife will be able to regain some
type of employment once the stress of the divorce is concluded.
Neither party challenges the award of bridge-the-gap alimony.   The wife
argues, however, that the trial court should have awarded her additional permanent
periodic alimony because she is permanently disabled and will never be able to return
to gainful full-time employment.   The wife’s psychiatrist testified that she suffers from
bipolar disorder and that her condition is probably life-long.   The wife’s psychiatrist did
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concede that if the wife takes her prescribed medication and follows his
recommendations such as quitting smoking, attending therapy, daily exercise, and a
proper diet and vitamin regimen, she could show some improvement and might be able
to work in the future.   However, he indicated that such work would probably be limited to
menial labor (such as “flipping burgers”), and that she would probably not be able to
work at her desired occupation or in the area in which she is trained to work currently.
Conversely, the husband presented no evidence refuting the psychiatrist’s findings or
indicating there is any reasonable probability the wife will actually be mentally or
physically able to obtain meaningful employment enabling her to become self-
supporting within eighteen months.
Based on the evidence presented, the trial court’s finding that the wife
“will be able to regain some type of employability once the stress of the divorce is
concluded” is not supported by competent, substantial evidence in the record.
Therefore, we conclude that the trial court abused its discretion by failing to award at
least nominal permanent alimony.   We understand the trial court’s concerns regarding
the husband’s future job prospects and the fact that there is a possibility that the wife
might be able to return to work.   However, we conclude that the historic incomes of the
parties, the length of the marriage, and the wife’s potential future needs require an
award of at least a nominal amount of permanent alimony.   An award of nominal
permanent alimony will accomplish two goals: first, it will permit the wife to petition the
trial court to pursue a future increase in permanent alimony should she continue to be
unable to work, and second, it will preserve the jurisdiction of the trial court to revisit the
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matter as the parties go on with their new lives.   See Blanchard v. Blanchard, 793 So.
2d 989, 992 (Fla. 2d DCA 2001).
We do not strike the trial court’s award of bridge-the-gap alimony;
however, we reverse and remand with directions for the trial court to make an additional
award of at least nominal permanent alimony.   All other aspects of the trial court’s order
are affirmed.
Affirmed in part, reversed in part and remanded with instructions.
ALTENBERND and WHATLEY, JJ, Concur.
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