PAULA F. LEVY v. ROBERT I. LEVY , 268 So. 3d 811 ( 2019 )

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
PAULA F. LEVY,
Appellant,
v.
ROBERT I. LEVY,
Appellee.
No. 4D18-3535
[April 17, 2019]
Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm
Beach County; Samantha Schosberg Feuer, Judge; L.T. Case No. 50-2018-
DR-010336-XXXX-SB.
Ellen S. Morris of Elder Law Associates PA, Boca Raton, for appellant.
Ilene Nodarse, agent for the appellee under Durable Power of Attorney.
DAMOORGIAN, J.
Paula Levy (“Wife”) appeals the trial court’s order denying her petition
for non-dissolution alimony from Robert Levy (“Husband”). We reverse
because the court incorrectly determined that it did not have legal
authority to grant Wife’s petition because of Husband’s potential
incapacity.
Wife petitioned the court for alimony unconnected with dissolution
pursuant to section 61.09, Florida Statutes. 1 The petition alleged that
Husband was ill and would soon be placed in a skilled nursing facility and
that Wife consequently needed monthly alimony to pay their expenses.
1 Section 61.09, Florida Statutes (2018), provides:
If a person having the ability to contribute to the maintenance of
his or her spouse and support of his or her minor child fails to do
so, the spouse who is not receiving support may apply to the court
for alimony and for support for the child without seeking dissolution
of marriage, and the court shall enter an order as it deems just and
proper.
Wife attached a marital property settlement agreement providing that
Husband agreed to pay Wife the requested amount of monthly alimony.
The settlement agreement was signed on behalf of Husband by his agent
as designated in Husband’s durable power of attorney. The durable power
of attorney, which was also attached to the petition, specifically provided
that Husband authorized the agent to, amongst other things, “support
and/or continue to support any person whom I have taken to support or
to whom I may owe an obligation of support, in the same manner and in
accordance with the same standard of living as I may have provided in the
past.” It further provided that the durable power of attorney would not be
terminated by Husband’s subsequent incapacity.
The record reflects that the petition was addressed during a uniform
motion calendar hearing. The court ultimately denied the petition,
reasoning that it was unable to legally order alimony due to concerns
regarding Husband’s potential incapacity. Although the court
acknowledged the durable power of attorney in its order, it did not make
any findings regarding the validity of the instrument or the agent’s
authority to act thereunder. This appeal follows.
Ordinarily, we review a court’s decision to award or deny alimony for
abuse of discretion. Addie v. Coale, 120 So. 3d 44, 46 (Fla. 4th DCA 2013).
However, because the issue of whether a court has legal authority to act
is a pure issue of law, we apply the de novo standard of review. See Metro-
Dade Invs., Co. v. Granada Lakes Villas Condo., Inc., 74 So. 3d 593, 594
(Fla. 2d DCA 2011).
The sole issue in this case is whether Husband’s potential incapacity
legally precluded the court from awarding otherwise uncontested alimony.
Wife argues that it did not because, regardless of Husband’s incapacity,
the durable power of attorney specifically authorized the agent to act on
his behalf. We agree.
The entire purpose of a durable power of attorney, as opposed to a
regular power of attorney, is to “show the principal’s intent that the
authority conferred is exercisable notwithstanding the principal’s
subsequent incapacity.” § 709.2104, Fla. Stat. (2017); see also
§ 709.2102(4), Fla. Stat. (2017) (defining the word “durable,” with respect
to a power of attorney, as meaning “not terminated by the principal’s
incapacity”). By denying alimony based on Husband’s potential
incapacity, the court failed to give effect to Husband’s intent under the
durable power of attorney to designate an agent to act on his behalf
notwithstanding his subsequent incapacity. As neither the validity of the
durable power of attorney nor the agent’s authority to act thereunder
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appear to be in dispute, the court was authorized to award alimony despite
Husband’s potential incapacity.
Accordingly, we reverse and remand for further proceedings consistent
with this opinion.
Reversed and remanded.
CONNER and FORST, JJ., concur.
* * *
Not final until disposition of timely filed motion for rehearing.
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