JEAN B. WAGNER, APPELLANT,
v.
L. REGINALD WAGNER, APPELLEE
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In a divorce case spanning nearly twenty years of marriage with two children, the trial court awarded the ex-wife $500 per month for five years as rehabilitative alimony. The appellate court reversed, holding that the award must be characterized as permanent alimony because the wife, who works as a teacher earning $12,000 annually with no realistic prospects of substantial income increases, has no opportunity for meaningful rehabilitation to greater financial success.
The alimony award must be characterized as permanent alimony, not rehabilitative alimony, because the record shows no genuine opportunity for rehabilitation or habilitation to greater financial success. The trial court's characterization of the award as rehabilitative was erroneous as a matter of law, even though the amount of the award itself was not an abuse of discretion.
[1] Rehabilitative alimony is inappropriate when the record does not support a reasonable expectation of future financial improvement or "habilitation" to greater financial s…
[2] An alimony award characterized as rehabilitative is erroneous as a matter of law if the facts do not support the possibility of rehabilitation.
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Join FLexlaw to unlock all legal intelligence“Under these circumstances there is no "rehabilitation" possible nor "habilitation" to greater financial success reasonably to be anticipated.”
Establishes that the trial court's factual findings about the wife's earning capacity precluded characterization of the award as rehabilitative.
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Join FLexlaw to unlock all legal intelligenceThe parties were married for nearly twenty years and had two minor children. The wife works as a teacher earning $12,000 per annum with modest, period…
The full statement of facts, procedural history, and disposition for this case are member content.
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HERSEY, Judge.
Upon termination of a marriage that spanned nearly twenty years and produced two children, still minors, appellant was awarded $500.00 a month for five years as rehabilitative alimony. She appeals. We reverse that award.
The allowance for child support and provisions pertaining to property interests are within the ambit of reasonable discretion and we do not concern ourselves with those.
Nor do we find the amount of the alimony award such that reasonable men could not differ as to its reasonableness.
We are, however, troubled by, and we therefore address, the legal question of the characterization of the alimony award as rehabilitative.
The record discloses that while the wife has obtained a real estate license and has some slight experience in modeling, neither of those fields offers any promise of a significant yield of income. She is primarily a teacher currently employed at a salary of $12,000.00 per annum with every expectation of modest, periodic, incremental increases. There is no evidence that she ever earned more nor any indication that an expectation of substantial increases would be justified. Under these circumstances there is no “rehabilitation” possible nor “habilitation” to greater financial success reasonably to be anticipated.
The award should have been for permanent alimony. McAllister v. McAllister, 345 So. 2d 352 (Fla. 4th DCA 1977); Kvittem v. Kvittem, 365 So. 2d 791 (Fla. 4th DCA 1978).
Application of the correct legal rule is not a matter of discretion; consequently, characterizing the alimony award as rehabilitative is erroneous as a matter of law. Canakaris v. Canakaris, 382 So. 2d 1197, 1980 FLW 59 (Fla. Jan. 31, 1980). We reverse on that basis.
We do not detail the financial comparison between the parties as that goes more to the amount than to the character of the alimony award. As indicated previously, the amount of the award, while not so unreasonable as to be an abuse of discretion, was low under the circumstances revealed by the record before us. Since the amount was established in the context of a rehabilitative setting it will necessarily have to be revisited by the trial judge on remand and brought into focus as a permanent, periodic award of alimony, subject to being tested by the standards ample precedent supplies for that purpose.
The judgment appealed from is reversed and the cause remanded for further proceedings in accordance with our holding.
REVERSED AND REMANDED.
BERANEK, J., concurs.
AN STEAD, J., concurs specially with opinion.
ANSTEAD, Judge,
specially concurring:
I concur in the result announced in the majority opinion, but I do not agree with the majority’s characterization of the amount of the award as “low.”
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DE Cenzo v. de Cenzo, 433 So. 2d 1316 (Fla. 3d DCA 1983)…ilitative rather than permanent presents a question of law, and the application of the correct legal rule is not a matter of discretion. Quick v. Quick, 400 So. 2d 1297 (Fla. 1st DCA 1981) (Went-worth, J., concurring & dissenting); Wagner v. Wagner, 383 So. 2d 987 (Fla. 4th DCA 1980). Our review, therefore, is not restricted to the abuse of discretion or reasonableness standard of Canakaris v. Canakaris, 382 So. 2d 1197 (Fla.1980). In determining whether permanent alimony is a more appropriate award than reh…
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Campbell v. Chalermsri V. Campbell, 432 So. 2d 666 (Fla. 5th DCA 1983)…has applied an incorrect principle of law when he awards permanent periodic alimony under circumstances where such award has no legal justification. See, Canakaris, supra; cf., Patrick v. Patrick, 399 So. 2d 72 (Fla. 5th DCA 1981); Wagner v. Wagner, 383 So. 2d 987 (Fla. 4th DCA 1980). The final judgment is affirmed in all respects except as to the award of permanent periodic alimony, as to which award the judgment is reversed and the cause is remanded to the trial court for further proceedings consistent her…
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Hair v. Hair, 402 So. 2d 1201 (Fla. 5th DCA 1981)…whether or not determination as to whether periodic alimony should be rehabilitative or permanent is a question of law or a matter of discretion for the trial court. See Canakaris 382 So. 2d at 1202. According to the recent case of Wagner v. Wagner, 383 So. 2d 987 (Fla. 4th DCA 1980), the characterization of alimony as rehabilitative rather than permanent is a legal question and not a matter of discretion. As authority for this statement, the Fourth District cited Canakaris, but did not specify any particular…
Previewing 3 of 15 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Canakaris v. Canakaris, 382 So. 2d 1197 (Fla. 1980)
- McALLISTER v. McALLISTER, 345 So. 2d 352 (Fla. 4th DCA 1977)
- Kvittem v. Kvittem, 365 So. 2d 791 (Fla. 4th DCA 1978)