01/25/2023
Is Retroactive Alimony allowed under Florida law - yes/no/maybe? Please someone tell me ;)
Recall that in Iarussi v. Iarussi (see https://hi.switchy.io/BZQI), the First DCA (in a concurring opinion) indicated that retroactive alimony was a creation of the courts prohibited by the separation of powers set forth in article II, section 3 of the Florida Constitution. As such, the First DCA reversed the trial court's award of retroactive alimony.
On December 22, 2022, the First DCA released the Guimbellot opinion (see https://hi.switchy.io/C24f), which also rejected retroactive alimony and as part of the opinion cited 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).
Ok, here is the "twist"...
As part of a dissenting opinion in Guimbellot, Judge Makar opines in part (referring to Iarussi)...`
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and is thereby purely dicta, i.e., a judicial commentary "that is unnecessary to the decision in the case and therefore not precedential."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 *5 (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.
Judge Makar concludes with...
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.
Comment #1 from Steve: Any lawyers (appellate or otherwise) wish to chime in on where things stand with regard to the retroactive alimony in the First DCA or other DCA's?
Comment #2 from Steve: "Twist #2" - As of January 1, 2023, the Fourth Judicial Circuit (Duval, Clay, and Nassau Counties) is no longer part of the First DCA and is now part of the 5th DCA.
Case: Guimbellot v. Guimbellot
Opinion filed: December 22, 2022
1st DCA
Case No. 1D2-2444
Link: https://hi.switchy.io/C24f
Posted by Steven A. Leitman
Steven A. Leitman, P.A.
Office: Duval County, Florida
(904) 348-6723
