BOBBIE SUE MARLOW, APPELLANT,
v.
JOHN LEWIS MARLOW, APPELLEE

Fla. 2d DCA | 1985-03-13
No. 84-1736
GRIMES, A.C.J., FRANK, J., and BOARDMAN, EDWARD F. (Ret.), J., concur.
464 So. 2d 717 Florida District Court of Appeal, Second District (1985) Positive Treatment
Cited by 6 cases

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Holding

The court held that the trial court did not abuse its discretion in awarding rehabilitative alimony, as there was competent substantial evidence to support the decision.


Headnotes

[1] An appellate court will not substitute its judgment for that of the trial court regarding alimony awards absent a clear abuse of discretion.

[2] An award of alimony is reviewed under the reasonableness test, and if competent substantial evidence supports the award, there is no abuse of discretion.

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Facts & Procedural History

The wife appealed a final judgment of dissolution of marriage, arguing the trial court erred in awarding rehabilitative alimony, failing to require th…

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Opinion of the Court
PER CURIAM.

PER CURIAM.

In this appeal from a final judgment of dissolution of marriage, the wife argues that the trial court erred in: (1) awarding her rehabilitative alimony of $152.00 per week for two years rather than permanent periodic alimony; (2) failing to require the husband to make mortgage payments on the marital home which was awarded to the wife; and (3) failing to require the husband to pay her $12,605.00 representing insurance proceeds received for damages to an automobile.

We affirm without comment the wife’s second and third contentions but we deem it necessary briefly to comment upon her first point on appeal.

The parties were married in 1961 and separated in 1983. They have two children each of whom was an adult at the time of the final hearing. The husband is the owner-operator of two service stations and a convenience store. In addition to the business assets held by the husband, the parties accumulated various assets including the marital home, rental property, two lots and a mobile home, two automobiles, IRA accounts, an insurance policy and other items of personal property. According to his financial statement and certain testimony at the hearing, the husband’s net income is approximately $724.00 per week. At the time of the final hearing the thirty-nine-year-old wife, who had received a tenth grade education, was employed at a figure salon for a net income of approximately $35.00 per week. According to the wife’s testimony at the dissolution proceeding, she intended to secure a “better job if the divorce goes through.” She also testified that she needed $250.00 per week in permanent alimony. However, on cross examination she indicated she needed $250.00 per week for a period sufficient to allow her to become qualified for self-supporting employment.

In the final judgment the wife was awarded as lump sum alimony jewelry, an automobile, and the marital residence with the requirement that the husband pay the mortgage, taxes and insurance on the home for two years. The court further awarded the wife $152.00 per week in rehabilitation alimony for a like period. The court indicated in the final judgment that “in view of the awards herein made, the wife does not have the need, nor is she entitled to, an award of permanent alimony.” We find the award of rehabilitative alimony was within the bounds of the trial court’s discretion.

The nature and amount of an award of alimony is a matter for determination by the trial court. In Canakaris v. Canakaris, 382 So. 2d 1197 (Fla.1980), the Florida Supreme Court stated:

The judge possesses broad discretionary authority to do equity between the parties and has available various remedies to accomplish this purpose, including lump sum alimony, periodic permanent alimony, rehabilitative alimony, child support, a vested special equity in property, and an award of exclusive possession of property. As considered by the trial court, these remedies are interrelated; to the extent of their eventual use, the remedies are a part of the overall scheme. It is extremely important that they also be reviewed by appellate courts as a whole, rather than independently.

Id. at 1202.

Absent a clear abuse of discretion, an appellate court is not justified in substituting its judgment for the final judgment of the trial court. Shaw v. Shaw, 334 So. 2d 13 (Fla.1976); Courington v. Courington, 120 So. 2d 64 (Fla. 2d DCA 1960). When called upon to review an award of alimony, the appellate court should apply “the reasonableness test” recognized by the supreme court in Canakaris and more recently in Marcoux v. Marcoux, 464 So. 2d 642 (Fla.1985). As stated in Marcoux:

If a reviewing court finds that there is competent substantial evidence in the record to support a particular award then there is logic and justification for the result and it is unlikely that no reasonable person would adopt the view taken by the trial court. Under these circumstances, there is no abuse of discretion.

At 544.

Following an examination of the record in the case before us, we find there is competent substantial evidence to support the award of rehabilitative, rather than permanent, alimony to the wife; thus, the trial court did not abuse its discretion.

We hasten to add that rehabilitative alimony is subject to modification upon a substantial change of circumstances. See Canakaris v. Canakaris, 382 So. 2d at 1202. Thus, if warranted, the rehabilitative alimony awarded in this case can be revisited and be converted to permanent alimony if the lower court finds such modification justified.

Affirmed.

GRIMES, A.C.J., FRANK, J., and BOARDMAN, EDWARD F. (Ret.), J., concur.


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Citator

Cited By

  • Moore v. Moore, 543 So. 2d 252 (Fla. 5th DCA 1989)
    …la.1986); [*254] Marcoux v. Marcoux, 464 So. 2d 542 (Fla.1985); Manto v. Manto, 509 So. 2d 981 (Fla. 2d DCA 1987); Murphy v. Murphy, 475 So. 2d 1253, 1254 (Fla. 5th DCA 1985); Brown v. Brown, 472 So. 2d 873, 875 (Fla. 2d DCA 1985); Marlow v. Marlow, 464 So. 2d 717, 719 (Fla. 2d DCA 1985). The trial court has a very broad ambit of discretion in resolving issues raised in dissolution cases. Canakaris v. Canakaris, 382 So. 2d 1197 (Fla.1980); Szemborski v. Szemborski, 530 So. 2d 361 (Fla. 5th DCA 1988). The rec…
  • Fulks v. Fulks, 558 So. 2d 205 (Fla. 2d DCA 1990)
    …scretion to determine if permanent periodic alimony is appropriate under the circumstances of each case, and absent a clear abuse of discretion, we are not justified in substituting our judgment for the judgment of the trial court. Marlow v. Marlow, 464 So. 2d 717 (Fla. 2d DCA 1985). It is our responsibility, however, to determine if the trial court abused its discretion in making that determination. Lang v. Lang, 459 So. 2d 402 (Fla. 4th DCA 1984). The record presented to us is without any basis to justify a…
  • Scotchel v. Scotchel, 524 So. 2d 1045 (Fla. 4th DCA 1988)
    …99 So. 2d 1126 (Fla. 4th DCA 1981). The record also supports a conclusion that the wife can be self supporting, and, therefore, no abuse of discretion occurred by failing to make the alimony award permanent. Canakaris v. Canakaris; Marlow v. Marlow, 464 So. 2d 717 (Fla. 2d DCA 1985); Campbell v. Campbell, 432 So. 2d 666 (Fla. 5th DCA 1983), rev. dismissed, 453 So. 2d 1364 (Fla.1984). As to the equitable distribution, although the wife does not dispute that the total assets were evenly divided, she does argue…

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