NANCY C. SWEN, APPELLANT,
v.
HENRY J. SWEN, APPELLEE,
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The appellate court affirmed the trial court's asset distribution but reversed the denial of permanent periodic alimony and attorney's fees, remanding for recalculation. The court found the wife, who had not worked significantly during the marriage, was unlikely to increase her income and thus deserved permanent support.
The appellate court held that the trial court erred in awarding only rehabilitative alimony and in denying attorney's fees. The court found that the wife's limited earning capacity warranted permanent periodic alimony.
[1] A trial court abuses its discretion by awarding rehabilitative alimony when the record supports an award of permanent periodic alimony for a spouse who has not worked dur…
[2] A spouse seeking modification of an alimony award should not be burdened with proving significantly changed circumstances at the end of a rehabilitative period.
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“From this record we see no indication of a likelihood that this fifty-five year old woman will experience any significant increase in her income at any time in the foreseeable future.”
Establishes the court's reasoning for awarding permanent alimony based on the appellant's limited future earning potential.
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceThe parties were married for twenty-nine years and had three adult children. The wife, who had a college education and a real estate license, had earn…
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PER CURIAM.
This appeal concerns a marriage of twenty-nine years. The parties had three children, all of whom have reached majority.
We find no error in the trial court’s distribution of the parties’ assets.
However, we conclude that the trial court should have awarded appellant permanent periodic alimony rather than rehabilitative alimony for a period of three years. Appellant did not work during most of the marriage. She had a college education and received a real estate license in 1980.
However her annual net income has never exceeded $2,200. From this record we see no indication of a likelihood that this fifty-five year old woman will experience any significant increase in her income at any time in the foreseeable future.
We find no merit in appellee’s argument that appellant can petition for modification of the alimony award prior to expiration of the rehabilitative alimony. To approve such an argument would place the burden on appellant to prove significantly changed circumstances at the end of the rehabilitative period.
The record supports an award of permanent periodic alimony; therefore we hold the trial judge erred in failing to grant her such relief. See Wagner v. Wagner, 383 So. 2d 987 (Fla. 4th DCA 1980); DeCenzo v. DeCenzo, 433 So. 2d 1316 (Fla. 3d DCA 1983). We also hold that the trial court abused its discretion in failing to award appellant reasonable attorney’s fees. See Sloman v. Sloman, 418 So. 2d 1249 (Fla. 4th DCA 1982).
Accordingly, we reverse that part of the final judgment which awarded appellant rehabilitative alimony and denied her request for attorney’s fees. We remand this cause with directions to determine the amount of and to award appellant permanent periodic alimony. We also direct the trial court to award appellant those reasonable attorney’s fees and taxable costs incurred in the trial court and in this appeal. The final judgment is otherwise affirmed in all respects.
AFFIRMED IN PART; REVERSED IN PART and REMANDED.
HERSEY, C.J., and ANSTEAD and DELL, JJ., concur.
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Mundy v. Madison Lee Mundy, Jr., 498 So. 2d 538 (Fla. 1st DCA 1986)…ay have the care of minor children. Allison v. Allison, supra, citing Colucci v. Colucci, 392 So. 2d 577 (Fla. 3d DCA 1981); Harrell v. Harrell, 403 So. 2d 589 (Fla. 1st DCA 1981); Golden v. Golden, 395 So. 2d 1255 (Fla. 1st DCA 1981); Swen v. Swen, 488 So. 2d 921 (Fla. 4th DCA 1986); Green v. Green, 484 So. 2d 1269 (Fla. 3d DCA 1986); Condren v. Condren, 475 So. 2d 268 (Fla. 2d DCA 1985). The wife in this case presents just such a profile. She was forty-four at the time of the dissolution, the parties had b…
Authorities Cited
- DE Cenzo v. de Cenzo, 433 So. 2d 1316 (Fla. 3d DCA 1983)
- Wagner v. Wagner, 383 So. 2d 987 (Fla. 4th DCA 1980)
- Adelaide v. Sloman, 418 So. 2d 1249 (Fla. 4th DCA 1982)