CLAIRE L. BURKE, APPELLANT,
v.
ROBERT E. BURKE, APPELLEE
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Claire Burke appealed a dissolution judgment that awarded her rehabilitative alimony of $60/month for nine months instead of permanent alimony. The court held that rehabilitative alimony was inappropriate because the wife had no realistic prospect of becoming self-supporting within nine months, and reversed the judgment to require an award of permanent alimony based on her needs and her husband's ability to pay.
The trial court abused its discretion in awarding only rehabilitative alimony. Rehabilitative alimony is appropriate only when the receiving spouse has actual potential or capacity to become self-supporting within a short, measurable period. Here, no basis existed to conclude the wife would be self-supporting within nine months, so permanent alimony based on her needs and the husband's ability to pay should have been awarded.
[1] Rehabilitative alimony requires evidence that the receiving spouse has the capacity to become self-supporting within a short or measurable period of time.
[2] A trial court abuses its discretion by failing to award permanent periodic alimony when the record does not establish the receiving spouse's capacity for self-support.
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“Rehabilitative alimony should be awarded only where the record shows the spouse has actual potential or actual capacity for self-support.”
Establishes the legal standard for when rehabilitative alimony is permissible
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Join FLexlaw to unlock all legal intelligenceThe Burkes were married for 13 years. The wife did not complete high school due to the birth of their first child, but later obtained a GED and became…
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SHARP, Judge.
The wife appeals from a final judgment of dissolution which awarded her custody of three minor children (ages nine (9), eleven (11), and thirteen (13)), child support of $100.00 per child per month, and rehabilitative alimony of $60.00 per month for a period of nine months. She contends the trial court erred in denying her request for lump sum alimony and/or permanent periodic alimony. We agree that under the circumstances established by this record, the trial court abused its discretion in failing to award the wife permanent periodic alimony.1
The Burkes had been married thirteen (13) years at the time of the dissolution. The wife failed to complete her high school education due to the birth of the parties’ first child. In addition to providing the primary care of the three children and the household, the wife obtained a high school equivalency diploma, worked as a teacher’s aide at $90.00 per week, and became certified as a medical technician. She was employed in this profession until she severely injured her arm. Because of that injury, she could not work in this field. At the time of the dissolution, the wife was not employed, and her prospects for being able to support herself (particularly since she would also have the primary custody of the children for a substantial span of time) was not established. The husband was in good health and employed, earning $20,000.00 per year. Rehabilitative alimony should be awarded only where the record shows the spouse has actual potential or actual capacity for self-support.2 Its award should be premised on evidence that the receiving spouse has the capacity to develop or acquire, in a short or measurable period of time, the ability to become self-supporting.3 Here, there is no basis to conclude th'e wife will be self-supporting within nine (9) months.4
We reverse and remand this case to the trial court with directions to enter an award of permanent alimony based on the wife’s current needs and the husband’s ability to pay. The trial court may also revisit the child support provision since it was linked to the alimony award.
REVERSED AND REMANDED.
FRANK D. UPCHURCH, Jr., and CO-WART, JJ., concur. . G’Sell v. G’Sell, 390 So. 2d 1196 (Fla. 5th DCA 1980).
. Reback v. Reback, 296 So. 2d 541 (Fla.3d DCA 1974), cert. denied, 312 So. 2d 737 (Fla.1975).
. Lee v. Lee, 309 So. 2d 26 (Fla.2d DCA 1975).
. Schwartz v. Schwartz, 297 So. 2d 117 (Fla.3d DC A 1974); See Yoehm v. Yoehm, 324 So. 2d 160 (Fla.4th DCA 1975).
Cases With Similar Vibessemantic neighbors from the corpus
Citator
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Wolff v. Wolff, 576 So. 2d 852 (Fla. 1st DCA 1991)…ur times that earned by the appellant. A rehabilitative alimony award must be based upon evidence that the receiving spouse has the capacity to develop or acquire the ability to become self-supporting in a measurable period of time. Burke v. Burke, 401 So. 2d 921 (Fla. 5th DCA 1981). A person is not self-supporting, however, just because she has a job and an income, for the courts consider the receiving spouse’s ability to support herself in a life-style similar to that enjoyed during the marriage. Askegard…
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Filkins v. Filkins, 458 So. 2d 73 (Fla. 2d DCA 1984)…potential capacity for self-support within the prescribed period commensurate with the party’s accustomed standard of living. Maloy v. Maloy, 431 So. 2d 743 (Fla. 2d DCA 1983); Holland v. Holland, 406 So. 2d 496 (Fla. 5th DCA 1981); Burke v. Burke, 401 So. 2d 921 (Fla. 5th DCA 1981); Wagner v. Wagner, 383 So. 2d 987 (Fla. 4th DCA 1980); and Messer v. Messer, 342 So. 2d 1076 (Fla.2d DCA 1977). Without this capacity there is nothing to which one can be rehabilitated. See, e.g., Patterson v. Patterson, 315 So.…
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Powell v. Powell, 421 So. 2d 575 (Fla. 5th DCA 1982)…t and to protect the individual from the consequences of poor judgment, cognitive impairment, or actions based on delusions or in response to hallucinations. Id. . Id. at 189. . Weider v. Welder, 402 So. 2d 66 (Fla. 4th DCA 1981); Burke v. Burke, 401 So. 2d 921 (Fla. 5th DCA 1981); Gerber v. Gerber, 392 So. 2d 317 (Fla. 4th DCA 1980); Colucci v. Colucci, 392 So. 2d 577 (Fla. 3d DCA 1980); G’Sell v. G’Sell, 390 So. 2d 1196 (Fla. 5th DCA 1980). See O’Neal v. O’Neal, 410 So. 2d 1369 (Fla. 5th DCA 1982); Hineb…
Authorities Cited
- Ranelle M. LEE v. LEE, 309 So. 2d 26 (Fla. 2d DCA 1975)
- Reback v. Reback, 296 So. 2d 541 (Fla. 3d DCA 1974)
- Schwartz v. Schwartz, 297 So. 2d 117 (Fla. 3d DCA 1974)
- Veroncia G'Sell v. G'Sell, 390 So. 2d 1196 (Fla. 5th DCA 1980)
- Yohem v. Yohem, 324 So. 2d 160 (Fla. 4th DCA 1975)
- Sweetwater Util. Corp. v. Save OUR BAY, Inc., 312 So. 2d 737 (Fla. 1975)
- Legis. Auditing Comm. OF Legis. v. Bussey, 312 So. 2d 737 (Fla. 1975)