BETTY JUNE PATRICK, APPELLANT/CROSS APPELLEE,
v.
J. M. PATRICK, APPELLEE/CROSS APPELLANT
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In a dissolution of marriage case, the former wife appealed a rehabilitative alimony award, and the former husband cross-appealed regarding property division. The appellate court reversed the alimony designation from rehabilitative to permanent, finding the wife had no capacity for self-support within the 36-month rehabilitative period, while affirming the property division and amount of the monthly award.
The rehabilitative alimony designation was reversed and directed to be made permanent because the wife demonstrated no capacity for self-support within the 36-month period. The monthly amount of the alimony award and the division of marital property were affirmed, as no abuse of discretion was demonstrated.
[1] Rehabilitative alimony is improper in the absence of evidence demonstrating the capacity for self-support, where a spouse's prior education, skills, or training do not th…
[2] A trial court errs by applying an incorrect rule of law when awarding rehabilitative alimony instead of permanent alimony, despite finding a need for and entitlement to a…
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Join FLexlaw to unlock all legal intelligence“where the prior education, skills or training of the wife do not of themselves demonstrate the actual or potential capacity for self support, rehabilitative alimony is improper in the absence of other evidence showing such capacity”
Establishes the legal standard for when rehabilitative alimony is inappropriate
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Join FLexlaw to unlock all legal intelligenceThe trial court dissolved a 36-year marriage, dividing marital assets and awarding the marital home to the wife as lump sum alimony. The court require…
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ORFINGER, Judge.
The former wife appeals portions of a final judgment of dissolution of marriage, and the former husband cross appeals. We affirm in part and reverse in part.
The final judgment dissolving this 36 year marriage divided certain marital assets between the parties, awarded the marital home to the wife as lump sum alimony, and required the husband to pay to the wife rehabilitative alimony for 36 months. The wife contends that the alimony award is insufficient, and should have been made permanent. The husband contends that he established a special equity in certain of the jointly held property which the trial court failed to recognize.
On the question of alimony, the record is clear that the wife did not finish high school and had only worked for a few months during the entire marriage. She has no training for any type of work. She has been working part-time as a sales clerk. Thus there is nothing in the record to indicate that the wife can be or will be rehabilitated within the 36 month period of the “rehabilitative” award. We have previously held, as have other courts, that where the prior education, skills or training of the wife do not of themselves demonstrate the actual or potential capacity for self support, rehabilitative alimony is improper in the absence of other evidence showing such capacity. G’Sell v. G’Sell, 390 So. 2d 1196 (Fla. 5th DCA 1980). Here there was no such evidence. The trial court specifically found that the wife had proven her need of alimony and her entitlement to it, so in awarding rehabilitative instead of permanent alimony, he applied an incorrect rule of law which we have the obligation to correct. Canakaris v. Canakaris, 382 So. 2d 1197 (Fla.1980). Although the wife has the right to seek an extension of a rehabilitative alimony award, or a conversion to permanent alimony, she would have the burden of proving the change of conditions which would entitle her to any such modification. Therefore, if she is entitled to permanent alimony, it should be awarded to her now. Colucci v. Colucci, 392 So. 2d 577 (Fla. 3d DCA 1981). For these reasons, on remand, the award of rehabilitative alimony should be made permanent.
The amount of the monthly alimony award is peculiarly within the discretion of the trial court, and since no abuse of that discretion has been demonstrated, we are without authority to alter the award. Ca-nakaris, supra. Similarly, we find no abuse of discretion in the division of the marital property.
The designation of the periodic alimony award as rehabilitative is reversed with directions to make it permanent, and the final judgment is otherwise affirmed.
AFFIRMED in part, REVERSED in part and REMANDED with directions.
COBB and SHARP, JJ., concur.
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Campbell v. Chalermsri V. Campbell, 432 So. 2d 666 (Fla. 5th DCA 1983)…hat we address. Rather, we hold that the trial court 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…
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Pujals v. Pujals, 414 So. 2d 228 (Fla. 3d DCA 1982)…tion or extension of rehabilitative alimony as long as it is filed within the period of rehabilitation provided by the final judgment. Section 61.14, Fla.Stat. (1979);4 Myrick v. Myrick, 402 So. 2d 452 [*230] (Fla. 5th DCA 1981); Patrick v. Patrick, 399 So. 2d 72 (Fla. 5th DCA 1981); Reid v. Reid, 396 So. 2d 818 (Fla. 4th DCA 1981), review denied, 402 So. 2d 612 (Fla.1981); Schottenstein v. Schottenstein, 384 So. 2d 933 (Fla. 3d DCA 1980), review denied, 392 So. 2d 1378 (Fla.1980); Sima v. Sima, 337 So. 2d 8…
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Maloy v. Maloy, 431 So. 2d 743 (Fla. 2d DCA 1983)…ng to make the alimony payments permanent as requested by the wife. There was no evidence that the wife would or could be rehabilitated to greater financial success within the two-year period of the rehabilitative alimony award. Patrick v. Patrick, 399 So. 2d 72 (Fla. 5th DCA 1981); Wagner v. Wagner, 383 So. 2d 987 (Fla. 4th DCA 1980). There was no evidence that she could develop anew or redevelop a capacity for full self-support and achieve some semblance of the lifestyle she enjoyed during the marriage. H…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Canakaris v. Canakaris, 382 So. 2d 1197 (Fla. 1980)
- Colucci v. Colucci, 392 So. 2d 577 (Fla. 3d DCA 1980)
- Veroncia G'Sell v. G'Sell, 390 So. 2d 1196 (Fla. 5th DCA 1980)