JOHN THOMAS NOTT, APPELLANT,
v.
BENITA KAY NOTT, APPELLEE
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A Florida appellate court reversed a trial court's award of $800/month permanent alimony to a wife in a dissolution of marriage case, finding that rehabilitative alimony was appropriate given the wife's education, prior work experience, and earning capacity. The court also remanded for reconsideration of the $10,000 attorney's fee award in light of the reduced alimony recovery.
The appellate court held that permanent alimony was not appropriate; instead, only rehabilitative alimony should have been awarded given the wife's capacity for self-support through her education and earning potential. The custody award was affirmed as supported by the record. The attorney's fee award was remanded for reconsideration because it was calculated based on the greater permanent alimony recovery that is no longer justified.
[1] An award of permanent alimony is improper when the recipient spouse is found to be capable of rehabilitation and possesses the ability to obtain employment.
[2] Rehabilitative alimony is appropriate when a spouse is found to be mentally competent and physically able to obtain employment, with the goal of enabling them to become s…
Previewing 2 of 4 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“Under the present award, he will have to pay $17,400.00 per year in alimony and child support. He has expenses of about $1,200.00 per month over and above these payments.”
Establishes the financial burden on the husband and the basis for the court's determination that permanent alimony was unsustainable.
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceThe parties married in 1962 and had two daughters (ages 8 and 10 at trial). The husband, age 40, is a dentist earning approximately $40,000 gross annu…
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BARKDULL, Judge.
The husband appeals a final judgment of dissolution of his marriage, particularly the award of alimony, custody, and attorney’s fees.
The marriage began in 1962, produced two daughters, and was dissolved by the trial court in 1977. The trial court referred the matter of the fitness of the parents to the Department of Health and Rehabilitative Services, which ultimately recommended that the children would be better off with the mother, with visitation rights to the father. The trial court then entered an order awarding custody to the wife, $800.00 monthly permanent alimony, $75.00 weekly for child support, and requiring the home (valued from $100,000.00 to $300,-000.00) to be held as tenants in common with use to the wife during the minority of the children. The trial court entered a later order, giving the wife’s attorney $10,-000.00 in fees.
The husband is a dentist, 40 years of age, who grosses about $40,000.00 per year ($28,-000.00 net). Under the present award, he will have to pay $17,400.00 per year in alimony and child support. He has expenses of about $1,200.00 per month over and above these payments. The husband shows the court that his wife is in excellent health, has previously taught school (during the first two years of marriage, earning $5,300.00 per year); she has a college degree and a broker’s license. During the marriage, she worked part time at a real estate office, earning $3,500.00 from such part time employment in 1975. The two children are 8 and 10 years of age; the wife is 36.
The appellant contends that the testimony regarding the husband’s financial situation and the wife’s earning capacity does not support an award of $800.00 monthly permanent alimony. See: Rosenberg v. Rosenberg, 352 So. 2d 867 (Fla. 3d DCA 1977) where, under similar facts, this court rejected an award of $300.00 per month alimony. We agree. Alimony, under the facts as found, should only have been rehabilitative.1 Therefore, this cause will be remanded to the trial court to ascertain the length of time the rehabilitative alimony should continue.
Secondly, appellant contends the wife should not have custody of the children. We find no merit in this contention. See: Dinkel v. Dinkel, 322 So. 2d 22 (Fla.1975); Brock v. Brock, 349 So. 2d 782 (Fla. 1st DCA 1977).
Lastly, appellant contends the award of $10,000.00 in attorney’s fees was excessive. In view of the fact that this matter will be returned to the trial court and that this opinion reverses as to permanent alimony, the trial judge may consider the amount of fees in this case because, obviously, the amount awarded was based on a recovery for the wife of permanent alimony, whereas now she will receive rehabilitative alimony. An essential ingredient of an award of attorney’s fees is the benefit to the client. The original award having been based on a greater recovery for the wife than she will ultimately receive, the trial judge may be desirous of reconsidering his award.
Therefore, for the reasons above stated, the final judgment here under review be and the same is hereby reversed and remanded, with directions.
Reversed and remanded, with directions.
KEHOE, J., dissents.
. The trial judge made several findings during the course of these proceedings that indicated the wife was capable of rehabilitation. See: Beard v. Beard, 262 So. 2d 269 (Fla. 1st DCA 1972); Thigpen v. Thigpen, 277 So. 2d 583 (Fla. 1st DCA 1973); Rosenberg v. Rosenberg, supra. He also, by his final judgment, attempted to make an award of permanent alimony in the nature of rehabilitative alimony, wherein he said:
* * * * * Hi
“1. The Court finds the Wife to be mentally competent and physically able to obtain employment and the award of $800.00 monthly Alimony, made permanent, subject to ‘revision in light of any change in circumstances which may occur in the future’ is not intended by the Court to give the Wife a vested interest in Husband’s earnings for life. It is the Court’s intention that during these next years the Wife will use her industry and skills to ultimately make her own way, if possible, while also exercising her first obligation as mother and custodian of the parties’ two minor children.”
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Moe Hirsch v. Fay Hirsch, 369 So. 2d 407 (Fla. 3d DCA 1979)…. Gardner, supra; it is obvious that the $15,000 figure was largely based on her counsel’s success below. The trial court should redetermine the amount,- if any, to be awarded in the light of our contrary decision on the merits. E. g., Nott v. Nott, 368 So. 2d 669 (Fla. 3d DCA 1979); Amend v. Amend, 341 So. 2d 1038 (Fla. 4th DCA 1977); Bradley v. Bradley, 327 So. 2d 253 (Fla. 4th DCA 1976); see Apkarian v. Apka-rian, supra. The final judgment under review is therefore reversed and the cause is remanded with…
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Griffith v. Griffith, 376 So. 2d 418 (Fla. 3d DCA 1979)…eed of permanent alimony. Cann v. Cann, 334 So. 2d 325 (Fla. 1st DCA 1976); Crees v. Crees, 342 So. 2d 1014 (Fla. 4th DCA 1977); Manning v. Manning, 353 So. 2d 103 (Fla. 1st DCA 1977); Zaugg v. Zaugg, 357 So. 2d 201 (Fla. 3d DCA 1978); Nott v. Nott, 368 So. 2d 669 (Fla. 3d DCA 1979). Therefore, so much of the final judgment as awarded the wife the husband’s interest in the residence as lump sum alimony is reversed. The final judgment awarding permanent alimony is modified by amending it to provide for rehabi…
Authorities Cited
- Dinkel v. Dinkel, 322 So. 2d 22 (Fla. 1975)
- Manly W. Thigpen v. Thigpen, 277 So. 2d 583 (Fla. 1st DCA 1973)
- State of Fla. Dep't OF Transp. v. Armer E. White, 262 So. 2d 269 (Fla. 1st DCA 1972)
- Beard v. Beard, 262 So. 2d 269 (Fla. 1st DCA 1972)
- Rosenberg v. Rosenberg, 352 So. 2d 867 (Fla. 3d DCA 1977)
- Hurd v. Hurd, 349 So. 2d 782 (Fla. 1st DCA 1977)
- Brock v. Brock, 349 So. 2d 782 (Fla. 1st DCA 1977)