GENE ROSEN, APPELLANT,
v.
EILEEN ROSEN, APPELLEE
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The court modified alimony and child support, imputed interest on a $100,000 gift to the former wife, reversed lump sum alimony for house repairs and a car, and reversed reimbursement for a psychologist's bill due to lack of evidence on reasonableness.
The court imputed interest on a $100,000 gift to the former wife, reversed lump sum alimony for house repairs and a new car, and reversed reimbursement for a psychologist's bill due to a failure to present evidence of its reasonableness.
[1] Interest should be imputed on a gifted amount returned by a party, at the rate of annual return on a 30-year U.S. …
[2] Retroactive interest awards are improper prior to the filing of a petition to enforce a mandate.
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Join FLexlaw to unlock all legal intelligenceFollowing a lengthy marriage dissolution and continuous litigation, the former wife petitioned to enforce a prior mandate, seeking various relief incl…
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PER CURIAM.
After a nine-year marriage, which produced two children and was dissolved in 1979, the parties hereto have engaged in continuous litigation. Rosen v. Rosen, 576 So. 2d 308 (Fla. 3d DCA 1990); Rosen v. Rosen, 528 So. 2d 42 (Fla. 3d DCA 1988); reh’g denied, 537 So. 2d 569 (Fla.1988); Rosen v. Rosen, 426 So. 2d 1052 (Fla. 3d DCA 1983); Rosen v. Rosen, 386 So. 2d 1268 (Fla. 3d DCA 1980) reh’g denied, 392 So. 2d 1378 (Fla.1981).1 Following these opinions, the former wife, on May 6, 1991, filed a petition to enforce this court’s mandate on the opinion and decision found in Rosen v. Rosen, 528 So. 2d 42 (Fla. 3d DCA 1988), sought an award of attorney’s fees and costs, an increase in alimony and child support, reimbursement of payment of psychologist’s bill and certain other relief, including interest on the arrearage. The former husband sought a reduction in alimony, a reduction in child support and a change in the alimony from permanent to rehabilitative. After several hearings the trial court entered an order which is the subject matter of this appeal, which, among other things, granted or denied the following relief:
1. Modified the alimony award to the amount of $2,750 per month.
2. Failed to impute interest to the wife for the $100,000 gift she returned.
3. Awarded lump sum alimony for repairs to the house and a new car. 4. Awarded prejudgment interest.
5. Increased child support from $1,300 a month to $2,724 a month.
6. Ordered reimbursement of a psychologist’s bill.
7. Failed to convert the alimony from permanent to rehabilitative, and,
8. Awarded attorney’s fees to the wife.
We find no error in items 1 and 5, however, we are of the view, following a review of the record, that the wife voluntarily divested herself of the $100,000.00 gift from her father. She therefore lost its interest earning power and that interest should be imputed to her on this divested amount at the rate of the annual return received by the owner of a 30 year U.S. government bond as of the date of our mandate in the decision reported in Rosen v. Rosen, 528 So. 2d 42 (Fla. 3d DCA 1988). We also reverse the award of retroactive interest prior to the wife filing the petition to enforce the mandate in May, 1991.2 The awards of lump sum alimony as to repairs to the house, and the purchase of a new automobile are hereby reversed and vacated. (The cash sums that wife will receive in accrued alimony and child support should be used for these purposes). The award of reimbursement for the psychologist bill is reversed because of a failure of the trial court to receive evidence as to its reasonableness as directed in Rosen v. Rosen, 576 So. 2d 308 (Fla. 3d DCA 1991). Morris Kirschman & Co. Inc., and Continental Ins. Co. v. Thomas and Willie Mae Garrett, 308 So. 2d 575 (Fla. 1st DCA 1975).
The former wife has a master’s degree in education, the children will both be in college by the fall of 1995, and there is no justifiable reason why the former wife should not enter the work force. We find error in the award of permanent alimony rather than rehabilitative under the reasoning and dictates found in Canakaris v. Canakaris, 382 So. 2d 1197 (Fla.1980); Rojas v. Rojas, 656 So. 2d 563 (Fla. 3d DCA 1995); Siegel v. Siegel, 564 So. 2d 226 (Fla. 5th DCA 1990); Contogeorgos v. Contogeorgos, 482 So. 2d 590 (Fla. 4th DCA 1986); Perry v. Perry, 448 So. 2d 588 (Fla. 5th DCA 1984); Campbell v. Campbell, 432 So. 2d 666 (Fla. 5th DCA 1983); James v. James, 443 So. 2d 1029 (Fla. 5th DCA 1983); Crees v. Crees, 342 So. 2d 1014 (Fla. 4th DCA 1977); Reback v. Reback, 296 So. 2d 541 (Fla. 3d DCA 1974). We therefore convert the permanent alimony to rehabilitative alimony to terminate on September 30, 1998, which should give the former wife ample time for retraining, and re turn the matter to the trial court to recompute the alimony award, taking into account the imputed interest per year, then enter an award of rehabilitative alimony for such amount and interest thereon, on any accrued amount from May 20,1991, to the date of the entry of the award. Such monthly amount as ultimately determined after deduction of the imputed earnings shall continue as periodic rehabilitative alimony through September 30, 1998. The attorney’s fee award is reversed and should be reconsidered in light of the reversal of many of the benefits originally received by the former wife and the trial court should take evidence to determine the reasonableness of the psychologist’s bill for which the former wife seeks reimbursement.
Reversed and remanded with directions.
. For background, these decisions should be reviewed.
. Delay in enforcement of mandate waived interest. See and Compare Bass v. State Farm Life Ins. Co., 649 So. 2d 924 (Fla. 3d DCA 1995).
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Rosen v. Rosen, 696 So. 2d 697 (Fla. 1997)…PER CURIAM. We have for review Rosen v. Rosen, 659 So. 2d 368 (Fla. 3d DCA 1995)(Rosen VI), in which the district court used a “results obtained” standard to reverse an award of attorney’s fees in this proceeding under chapter 61, Florida Statutes (1995), and converted the alimony award from permanent to rehab…
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Jamilette Hallac v. Hallac, 88 So. 3d 253 (Fla. 4th DCA 2012)…ment statute.” Id. Just after Aue, our supreme court decided Rosen, approving the Third District’s reversal of an attorney’s fee award to reconsider attorney’s fees in a modification proceeding based upon the “results obtained.” See Rosen v. Rosen, 659 So. 2d 368 (Fla. 3d DCA 1995), quashed in part on other grounds, 696 So. 2d at 703. The trial court had awarded attorney’s fees in a modification proceeding where the parties had been in litigation over various aspects of their divorce for sixteen years. In it…
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Taylor v. Taylor, 746 So. 2d 577 (Fla. 1st DCA 1999)…nal visitation as well as an attorney’s fee award of $21,292 against the mother. The lower court has misapplied Rosen to the facts at bar. In Rosen, the parties had divorced in 1979 and thereafter “engaged in continuous litigation.” Rosen v. Rosen, 659 So. 2d 368, 369 (Fla. 3d DCA 1995). In their latest appeal, the former husband challenged a number of awards, one of which granted fees to the former wife, which the district court reversed and directed the trial court to reconsider “in light of ... [its] reve…
Authorities Cited (17 total)
- Canakaris v. Canakaris, 382 So. 2d 1197 (Fla. 1980)
- Reback v. Reback, 296 So. 2d 541 (Fla. 3d DCA 1974)
- Rosen v. Rosen, 386 So. 2d 1268 (Fla. 3d DCA 1980)
- Campbell v. Chalermsri V. Campbell, 432 So. 2d 666 (Fla. 5th DCA 1983)
- Rojas v. Rojas, 656 So. 2d 563 (Fla. 3d DCA 1995)
- Silas Ray Crees v. Mara King Crees, 342 So. 2d 1014 (Fla. 4th DCA 1977)
- Siegel v. Siegel, 564 So. 2d 226 (Fla. 5th DCA 1990)
- Bass v. State Farm Life Ins. Co., 649 So. 2d 924 (Fla. 3d DCA 1995)
- Baker v. State, 482 So. 2d 590 (Fla. 1st DCA 1986)
- Rosen v. Rosen, 528 So. 2d 42 (Fla. 3d DCA 1988)