LINDA GAIL BROOKS, APPELLANT,
v.
ROY BROOKS, APPELLEE

Fla. 1st DCA | 1996-08-23
No. 95-4287
BOOTH and BENTON, JJ., concur.
678 So. 2d 1368 Florida District Court of Appeal, First District (1996) Positive Treatment
Cited by 12 cases

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Synopsis

In this Florida dissolution of marriage case, the appellate court reversed the trial court's award of three years of rehabilitative alimony to a long-term homemaker wife and remanded for entry of permanent periodic alimony instead. The court found the trial court abused its discretion by failing to make specific findings supporting rehabilitative alimony and by ignoring uncontradicted evidence that the wife could not achieve a standard of living commensurate with the marital standard through her own efforts.


Holding

The court reversed the rehabilitative alimony award and remanded for entry of permanent periodic alimony. The trial court abused its discretion by awarding rehabilitative alimony without explicit findings addressing the rehabilitation plan, objective, cost, and projected period for rehabilitation as required by Florida law. Where, as here, there is uncontradicted evidence that the requesting spouse cannot attain a level of self-support reasonably commensurate with the marital standard of living and no evidence that rehabilitation will enable such support, permanent alimony is required.


Headnotes

[1] An award of rehabilitative alimony is improper when the requesting spouse cannot attain a standard of living commensurate with the marital standard of living, absent evid…

[2] A trial court must make specific findings of fact supporting an award or denial of alimony, including factors enumerated in section 61.08(2), Florida Statutes.

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Key Quotes

“It is improper to deny permanent alimony 'unless there is some evidence that the appellant can attain a level of self support reasonably commensurate with the standard of living established during the marriage.'”

Establishes the standard for when permanent alimony must be awarded—the burden is on the trial court to find evidence of self-support capability before denying it.

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Facts & Procedural History

Linda and Roy Brooks were married for twenty years. Throughout the marriage, Linda served as homemaker and mother while Roy was the primary earner. Li…

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Opinion of the Court
JOANOS, Judge.

JOANOS, Judge.

The sole issue raised in this appeal from a final judgment of dissolution of the parties’ twenty-year marriage concerns the trial court’s decision to award to the wife rehabilitative, rather than permanent periodic alimony. We reverse and remand for entry of an award of permanent periodic alimony.

Throughout the parties’ marriage, the wife’s contribution was that of homemaker and mother. The wife’s lack of outside employment seems to have been either a matter of mutual consent, or the husband’s preference.1 The record indicates that during the wife’s brief periods of employment as a waitress and as a cosmetologist, her earnings were at the minimum wage level. In 1974, the wife completed a cosmetology course. In 1975, after completing the one-year work requirement, the wife became licensed as a master cosmetologist. It appears this year of work experience, somewhat akin to an apprenticeship, was the wife’s most recent, and perhaps most continuous, period of paid employment during the course of the parties’ marriage.

The wife’s unrefuted testimony established that she is unable to support herself at a level commensurate with the marital standard of living. Indeed, the husband corroborated the wife’s testimony, by stating that the wife will be unable to earn an income sufficient to maintain the lifestyle the parties enjoyed during the marriage. The wife requested permanent periodic alimony in the amount of $800.00 per month. In the final judgment, the trial court found the wife “is in good health and employable,” had worked, during the marriage as a waitress, bookkeeper, and cosmetologist, and possessed a master cosmetologist’s license. The trial court then awarded the wife rehabilitative alimony in the amount of $350.00 per month for a period of thirty-six months.2

The wife filed a motion for rehearing of the trial court’s award of rehabilitative alimony. As grounds therefor, the wife alleged the evidence presented before the trial court established her need for permanent periodic alimony, and the trial court failed to include a rehabilitation plan and goal, as required by Florida law. The trial court summarily denied the wife’s motion for rehearing.

The applicable provisions of section 61.08, Florida Statutes (1993), state:

(1) In a proceeding for dissolution of marriage, the court may grant alimony to either party,’which alimony’may be rehabilitative or permanent in nature. In any award of alimony, the court may order periodic payments or payments in lump sum or both. The court may consider the adultery of either spouse and the circumstances thereof in determining the amount of alimony, if any, to be awarded. In all dissolution actions, the court shall include findings of fact relative to the factors enumerated in subsection (2) supporting an award or denial of alimony.

(2) In determining a proper award of alimony or maintenance, the court shall consider all relevant economic factors, including but not limited to:

(a) The standard of living established during the marriage.

(b) The duration of the marriage. (e)The age and the physical and emotional condition of each party.

(d) The financial resources of each party, the nonmarital and the marital assets and liabilities distributed to each.

(e) When applicable, the time necessary for either party to acquire sufficient education or training to enable such party to find appropriate employment.

(f) The contribution of each party to the marriage, including, but not limited to, services rendered in homemaking, child care, education, and career building of the other party.

(g) All sources of income available to either party.

The court may consider any other factor necessary to do equity and justice between the parties.

The statutory requirement of specific “findings of fact ... supporting an award or denial of alimony,” is to facilitate meaningful appellate review. Wetzel v. Wetzel, 671 So. 2d 234, 235 (Fla. 1st DCA 1996). In determining whether to award permanent periodic alimony, the trial court should consider the needs and necessities of the requesting spouse in accordance with the marital standard of living. Canakaris v. Canakaris, 382 So. 2d 1197 (Fla.1980); Crowley v. Crowley, 672 So. 2d 597 (Fla. 1st DCA 1996); Zeigler v. Zeigler, 635 So. 2d 50, 53 (Fla. 1st DCA 1994). It is improper to deny permanent alimony “unless there is some evidence that the appellant can attain a level of self support reasonably commensurate with the standard of living established during the marriage.” Zeigler, 635 So. 2d at 54.

The disparate earning power of the parties is a significant factor in determining whether permanent or temporary support is appropriate. Zeigler, 635 So. 2d at 54. Further, “[i]n situations where the superior earning power of one spouse is achieved during a period when the other spouse is out of the job market as a result of an agreement that the nonworking spouse will care for the children, the courts of this state have reversed awards of temporary support in lieu of permanent alimony.” Id. The relative youth of the spouse seeking permanent alimony “does not justify the total denial of permanent alimony unless there is some evidence that the appellant can attain a level of self support reasonably commensurate with the standard of living established during the marriage.” Id. at 54.

In Zeigler, because there was nothing in the record to indicate the wife would ever be able to support herself in a manner reasonably equal to the marital standard of living, and no evidence of the husband’s inability to provide some level of permanent support, this court held the trial court abused its discretion in deciding to award temporary support in lieu of permanent alimony. 635 So. 2d at 55.

An award of rehabilitative alimony should be supported by explicit findings, which “address the rehabilitative plan, the objective of rehabilitation, the cost of the plan and the projected period necessary for the wife to complete her rehabilitation.” Wetzel, 671 So. 2d at 235-236; Collinsworth v. Collinsworth, 624 So. 2d 287, 291 (Fla. 1st DCA 1993). Where permanent alimony is due, an award of rehabilitative alimony cannot be considered harmless error. Such an award “must be reversed because it places the burden on the wife to come in at the end of the rehabilitative period to prove a significant change in circumstances before modification will be allowed.” Steinberg v. Steinberg, 614 So. 2d 1127, 1129 (Fla. 4th DCA), review denied, 626 So. 2d 208 (Fla.1993); Bible v. Bible, 597 So. 2d 359, 361 (Fla. 3d DCA 1992).

In this ease, the trial court failed to make specific findings to support either the amount of alimony awarded, or the decision to make that alimony rehabilitative. In this regard, the final judgment fails to comply with section 61.08(1), Florida Statutes. Moreover, the record does not support the trial court’s finding that the wife did not seek employment during the pendency of the dissolution action. The wife’s uncontradicted testimony established that she looked for work in the classified ads, and sought information about employment opportunities from friends and acquaintances. In the relatively small community in which these parties re side, the wife’s efforts seem to constitute an appropriate starting point for a job search. The wife also testified that she could not work as a cosmetologist without the appropriate equipment and supplies. There is no indication, either in the final judgment, or elsewhere in the record, that there is a fund available which the wife might use to purchase the equipment and supplies associated with work as a cosmetologist.

Accordingly, we reverse the award of rehabilitative alimony, and remand this cause with directions to convert the award to permanent periodic alimony. In all other respects, the trial court’s rulings are affirmed.

BOOTH and BENTON, JJ., concur. . The wife testified to one instance in which the husband insisted she quit her employment with a Jacksonville jewelry store.

. Primary residential custody of the parties' daughter, who was then fifteen years of age, was placed with the wife. The trial court noted the husband was current on his child support payment of $526.00 per month, which is the amount specified by the child support guidelines. Under the final judgment initially entered in this cause, both the wife’s temporary alimony and the child support will terminate in three years.


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Citator

Cited By

  • Williams v. Williams, 923 So. 2d 606 (Fla. 2d DCA 2006)
    …A 2003). The requirement that the final judgment contain specific findings of fact is to facilitate meaningful appellate .review of the trial court’s award or denial of alimony. Milo v. Milo, 718 So. 2d 343, 344 (Fla. 2d DCA 1998); Brooks v. Brooks, 678 So. 2d 1368, 1370 (Fla. 1st DCA 1996). In this case, the parties’ marriage falls in the upper range of “gray area” marriages where [*608] there is no presumption for or against an award of alimony. See Walker v. Walker, 818 So. 2d 711, 713 (Fla. 2d DCA 2002); N…
  • McCARTY v. McCARTY, 710 So. 2d 713 (Fla. 1st DCA 1998)
    …arties stipulate to entitlement to permanent alimony, and litigate only the question of amount. In Brooks v. Brooks, the sole issue raised on appeal concerned the trial court’s decision to award rehabilitative rather than permanent periodic alimony. 678 So. 2d 1368 (Fla. 1st DCA 1996). This court observed that the statutory requirement of specific findings of fact is “to facilitate meaningful appellate review.” Id. at 1370. The court then noted that the trial judge “failed to make specific findings to support…
  • Geoghegan v. Geoghegan, 969 So. 2d 482 (Fla. 5th DCA 2007)
    …regarding the factors enumerated in section 61.08(2)(a)-(g). Williams v. Williams, 923 So. 2d 606, 607 (Fla. 2d DCA 2006); Jain v. Jain, 915 So. 2d 711, 712 (Fla. 4th DCA 2005); Milo v. Milo, 718 So. 2d 343, 344 (Fla. 2d DCA 1998); Brooks v. Brooks, 678 So. 2d 1368, 1370 (Fla. 1st DCA 1996). The failure to provide these required findings may, therefore, constitute reversible error. Fulmer v. Fulmer, 961 So. 2d 1081 (Fla. 1st DCA 2007); Vitalis v. Vitalis, 799 So. 2d 1127, 1130-31 (Fla. 5th DCA 2001); Hill v. H…

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