HELEN D. WEIDER, APPELLANT/CROSS APPELLEE,
v.
WILLIAM GRIMES WEIDER, APPELLEE/CROSS APPELLANT

Fla. 4th DCA | 1981-08-12
Nos. 80-744, 80-1318 and 80-1367
LETTS, C. J., and DOWNEY, J., concur.
402 So. 2d 66 Florida District Court of Appeal, Fourth District (1981) Positive Treatment
Cited by 9 cases

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Holding

The court held that the trial court abused its discretion by failing to award permanent alimony and by ordering partition without following statutory procedures, and exceeded its jurisdiction by granting exclusive possession pending appeal.


Headnotes

[1] Failure to award permanent alimony to a spouse who is 60 years old, in poor health, and has not been employed for 12 years, absent evidence of ability to become self-supp…

[2] The amount of alimony awarded must consider the needs of one spouse and the ability of the other spouse to satisfy those needs, including earning ability, age, health, ed…

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Facts & Procedural History

The wife, 60 years old with poor health and limited recent employment, was awarded rehabilitative alimony and a special equity in the marital home. Th…

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Opinion of the Court
MOORE, Judge.

MOORE, Judge.

This case involves consolidated appeals from a final judgment of dissolution of marriage and certain post-judgment orders. Each of the parties raises several points on appeal. In view of our holding, it is not necessary to consider each of the points. We find that the trial court abused its discretion and reverse for a new trial.

In the final judgment, the trial court, inter alia, dissolved the marriage of the parties, awarded the appellant-wife $300 biweekly as rehabilitative alimony for three years, and ordered a partition of the marital home, awarding to the wife a $6,000 special equity therein. In a post-judgment order, the trial court awarded the wife exclusive use and possession of the marital home “. . . until July 14, 1983 or a determination of the appeal of the final judgment .. . whichever occurs latest in point of time.”

The parties were married 23 years at the time of the final hearing. The wife was 60 years old. Although she had had several clerical and sales jobs, she had not been employed for the last 12 years prior to the final hearing. Her testimony indicated that she was in poor health. A vocational consultant, however, testified that she was capable of earning $150 to $160 per week.

The husband, on the other hand, was 51 years old at the time of the final hearing and was earning an annual salary of $43,-000 plus various fringe benefits as a vice president of Sensormatic Corporation. The only child of the marriage was emancipated.

The failure to award permanent alimony under these circumstances constitutes an abuse of the trial court’s discretion. It is inconceivable that the wife, 60 years old and in poor health, would have the ability to be completely self-supporting upon termination of the rehabilitative alimony. The evidence showed that at most the wife could earn $150 to $160 a week and there was no indication that this amount would increase with rehabilitation. Absent evidence showing that the wife has the ability, with rehabilitation, to become self-supporting, permanent alimony should be awarded. Gerber v. Gerber, 392 So. 2d 317 (Fla. 4th DCA 1980); accord, Colucci v. Colucci, 392 So. 2d 577 (Fla. 3rd DCA 1980). The facts here present a more compelling case for reversal than the above cases.

Next we consider the amount of the alimony. The factors to be considered in determining the amount of alimony payments are the needs of one spouse and the ability of the other spouse to satisfy those needs. The criteria to be used include the parties’ earning ability, age, health, education, the duration of the marriage, the standard of living enjoyed during the course of the marriage, and the value of the parties’ estates. Canakaris v. Canakaris, 382 So. 2d 1197 (Fla.1980). See also, McAllister v. McAllister, 345 So. 2d 352 (Fla. 4th DCA 1977); cert. denied 357 So. 2d 186 (Fla.1978). In considering these criteria, it becomes obvious that the award of rehabilitative alimony of $300 bi-weekly is inadequate. Assuming the wife obtains employment at the rate of $150 per week, she will have a total annual taxable income of $15,600 for three years. The husband’s income, on the other hand, less his deductible alimony, will be $35,200. This disparity in the relative incomes of the parties warrants alimony in excess of that awarded by the trial court.

We must also reverse that portion of the final judgment ordering partition. In order to justify an award of partition, the pleadings must conform to the requirements of Section 64.041, Florida Statutes (1979). Niemann v. Niemann, 294 So. 2d 415 (Fla. 4th DCA 1974), cert. dismissed, 312 So. 2d 733 (Fla.1975). Also, the final judgment must provide for partition in accordance with the procedures set forth in Chapter 64, Florida Statutes (1979). Sanders v. Sanders, 351 So. 2d 1126 (Fla. 2nd DCA 1977); Rankin v. Rankin, 258 So. 2d 489 (Fla. 2nd DCA 1972). The failure of the pleadings in this case to satisfy the statutory requirements and the failure of the final judgment to provide for partition in accordance with the statutory procedures mandates reversal. We, therefore, remand this case to the trial court so that appropriate supplemental pleadings may be filed. See, Sanders, supra.

We must also reverse that portion of the post-judgment orde'r granting the wife exclusive use and possession of the marital home “until July 14, 1983 or a determination of the appeal of the final judgment ... whichever occurs latest in point of time.” Fla.R.App.P. 9.600 allows the trial court to enter and enforce orders necessary for the protection of a party pending appeal. By awarding the wife the exclusive use and possession of the marital home until July 14, 1983 in the event this appeal is decided prior to that time, the trial court has exceeded its jurisdiction. The trial court losses jurisdiction upon the filing of a notice of appeal except for those matters specifically enumerated in Rule 9.600, and the rule does not provide for such jurisdiction beyond the pendency of the appeal.

Because of the changes required by this opinion and the interrelationship of the financial aspects, the trial court, on remand, should reconsider all the provisions of the final judgment relating to support and division of the parties’ assets in order to do equity and justice between the parties. Goss v. Goss, 400 So. 2d 518 (Fla. 4th DCA 1981). In reconsidering the final judgment the trial court may receive new evidence.

Except for the granting of a dissolution of the marriage between the parties, the final judgment is reversed and this cause is remanded for further proceedings.

LETTS, C. J., and DOWNEY, J., concur.


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Citator

Cited By

  • Beecham v. Beecham, 407 So. 2d 237 (Fla. 3d DCA 1981)
    …000. Where we are convinced, as we are here, that there is a severe disparity in the effective incomes of the parties that warrants more alimony than awarded by the trial court, Lewis v. Lewis, 402 So. 2d 1306 (Fla. 3d DCA 1981); Weider v. Weider, 402 So. 2d 66 (Fla. 4th DCA 1981); Hamblen v. Hamblen, 380 So. 2d 1074 (Fla. 2d DCA 1980), and that the alimony award should be permanent, Colucci v. Colucci, supra; Gerber v. Gerber, 392 So. 2d 317 (Fla. 4th DCA 1980), we will not hesitate to declare that the tr…
  • Powell v. Powell, 421 So. 2d 575 (Fla. 5th DCA 1982)
    …able. Holland v. Holland, 406 So. 2d 496 (Fla. 5th DCA 1981); Cowan v. Cowan, 389 So. 2d 1187 (Fla. 5th DCA 1980); Aguiar v. Aguiar, 386 So. 2d 280 (Fla. 4th DCA 1980); Bradley v. Bradley, 385 So. 2d 101 (Fla. 5th DCA 1980). . See Weider v. Weider, 402 So. 2d 66 (Fla. 4th DCA 1981); Aguiar v. Aguiar, 386 So. 2d 280 (Fla. 4th DCA 1980). . The majority opinion says the United business was begun with the husband’s assets owned prior to the marriage. I dispute that is a fair statement of what the record shows,…
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  • Campbell v. Chalermsri V. Campbell, 436 So. 2d 374 (Fla. 5th DCA 1983)
    …ley were decided under former Rule 3.8(b), Florida Appellate Rules, 1962 Revision, which rule was somewhat narrower in scope than the present Rule 9.600(c), the Fourth District has reached the same result under the present rule. In Weider v. Welder, 402 So. 2d 66 (Fla. 4th DCA 1981), the court held that a post-judgment order by the trial court pending appeal of the judgment, awarding to the wife exclusive use and possession of the marital home “. .. until July 14, 1983, or a determination of the appeal of th…

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