MARIE L. PATIN, APPELLANT,
v.
CARL A. PATIN, APPELLEE
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Wife appeals a dissolution judgment that awarded no immediate periodic alimony but deferred permanent alimony of $25/week until the youngest child reached majority. The Fourth District reversed in part, holding that the wife was entitled to immediate alimony given the 20-year marriage, her dependent children, her lack of employment, and the husband's substantial income from military pension and VA benefits.
The wife was entitled to periodic alimony commencing immediately upon dissolution, not deferred for six years as the trial court ordered. Evidence of marital misconduct, including a homosexual relationship, may be considered in reducing alimony, but the trial court must make express findings of fact regarding any such misconduct and must reconsider the alimony award with any amount to commence immediately rather than being deferred.
[1] A spouse in a long-term marriage is entitled to permanent alimony on the day of dissolution.
[2] A trial court may consider evidence of marital misconduct, including homosexual relationships, when determining alimony awards.
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Join FLexlaw to unlock all legal intelligence“the state of the law is clear that based on the foregoing facts the wife was entitled to permanent alimony on the day of dissolution”
Establishes the controlling legal standard: a wife in a long-term marriage with economic dependence and minor children is entitled to immediate alimony upon dissolution
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Join FLexlaw to unlock all legal intelligenceThe parties were married for 20 years and have four children, three minors with the youngest aged 12. The wife has never worked during the marriage (e…
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LETTS, Judge.
The wife here appeals a final judgment of dissolution awarding no periodic alimony for the first 6 years after which, permanent alimony of $25.00 per week is to commence. We reverse in part.
This involves yet another breakup of a long-term marriage of 20 years duration with 4 children, three of them minors, the youngest aged 12. Apart from a small award of lump-sum alimony, which we conclude involved no abuse of discretion, the final judgment awarded custody and $80.00 per week child support. No immediate periodic alimony was awarded except that when the last child became of age, permanent alimony of $25.00 per week was to commence.
Both parties are in their early forties, the wife never having worked since very early on in the marriage (before that she was in the service) and the husband having recently retired from the Navy as a lieutenant commander with a take-home after tax weekly pension of $251. At the time of the final hearing he was studying for his masters degree and also receiving V.A. educational benefits of $440 per month. The wife is unemployed and has virtually no income,1 but possesses limited clerical skills. Both are in good health although the wife claims some emotional problems.
The state of the law is clear that based on the foregoing facts the wife was entitled to permanent alimony on the day of dissolution, McAllister v. McAllister, 345 So. 2d 352 (Fla. 4th DCA 1977) and McCloskey v. McCloskey, 359 So. 2d 494 (Fla. 4th DCA 1978). It also appears that the trial judge himself felt she was so entitled be cause he did award it, although not to commence until a later date. It is clear that if she is entitled to any alimony, she needs support now. The husband has the present ability to pay alimony, his wife needs it and her former position and circumstance as a lieutenant commander’s wife was considerable, Caracristi v. Caracristi, 324 So. 2d 634 (Fla. 2d DCA 1976). The husband is also preparing himself, with generous assistance from the V.A., to earn much much more.
As to the $25.00 awarded, it is admitted that the wife left the husband and went to live with another woman. The wife denies any marital infidelities with her female companion who also gratuitously assists with the wife’s support; but there is considerable circumstantial evidence of a homosexual relationship and we could not conclude that the trier of the fact was in error if he so found. We have seen that evidence of adultery may be considered in any alimony award. Pro v. Pro, 300 So. 2d 288 (Fla. 4th DCA 1974), and recognize that the applicable statute so authorizes, Section 61.08(1), Florida Statute (1977). Yet we know of no prior case applying this to a homosexual relationship. Notwithstanding, we find no substantial distinction, because both involve extra-marital sex and therefore marital misconduct.
We note in the case at bar, however, that the trial judge made some findings of fact but made no mention of any such marital misconduct. Accordingly, this cause is remanded in order to determine if the low alimony award was predicated on such a finding even though it is not expressed. If no such finding was intended, then we consider the award of $25.00 to be inadequate and direct the trial court to consider a more appropriate award. On the other hand, if a finding of marital misconduct is confirmed and was a predicate, the trial judge shall be free to reconsider the issue of alimony and the amount thereof (except that if any amount shall be deemed appropriate, it shall commence immediately).
REVERSED IN PART AND REMANDED.
DOWNEY, C. J., and MOORE, J., concur. . She does receive $100 per year from her mother’s estate.
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Kaylor v. Kaylor, 390 So. 2d 752 (Fla. 4th DCA 1980)…in an entitlement to permanent rather than rehabilitative alimony. Wagner v. Wagner, 383 So. 2d 987 (Fla 4th DCA 1980); Bashaw v. Bashaw, 382 So. 2d 1352 (Fla. 4th DCA 1980); Garrison v. Garrison, 380 So. 2d 473 (Fla. 4th DCA 1980); Patin v. Patin, 371 So. 2d 682 (Fla. 4th DCA 1979); Kvittem v. Kvittem, 365 So. 2d 791 (Fla. 4th DCA 1978); Langstaff v. Langstaff, 363 So. 2d 399 (Fla. 4th DCA [*755] 1978); West v. West, 345 So. 2d 756 (Fla. 4th DCA 1977); McAllister v. McAllister, 345 So. 2d 352 (Fla. 4th DCA…
Authorities Cited
- McALLISTER v. McALLISTER, 345 So. 2d 352 (Fla. 4th DCA 1977)
- McCLOSKEY v. McCLOSKEY, 359 So. 2d 494 (Fla. 4th DCA 1978)
- PRO v. PRO, 300 So. 2d 288 (Fla. 4th DCA 1974)
- Heinecke Instruments Co. v. Webber, 324 So. 2d 634 (Fla. 3d DCA 1976)