VALERIE JOAN POLLOCK, APPELLANT,
v.
RAYMOND L. POLLOCK, APPELLEE
AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.
The appellate court affirmed the trial court's decision to convert rehabilitative alimony to permanent alimony, finding no abuse of discretion in the amount awarded.
[1] A trial court does not abuse its discretion in setting the amount of permanent alimony when it considers statutory requirements and applies them to the facts, including t…
[2] A marital settlement agreement can be modified to award permanent alimony upon a showing of a substantial change in circumstances, even if the original agreement stipulat…
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 intelligenceThe former wife appealed a post-dissolution order converting her rehabilitative alimony to permanent alimony, arguing the amount was insufficient. The…
The full statement of facts, procedural history, and disposition for this case are member content.
Join FLexlaw to unlock all legal intelligence© FLexlaw, Inc. — AI-generated enrichments are proprietary. All rights reserved.
Explore caselaw by topic → Browse Reasonableness Test For Abuse Of Discretion cases and more on FLexlaw
THOMPSON, J.
Valerie Joan Pollock, the former wife, appeals a post-dissolution order which converted her $600 per month rehabilitative alimony to $794 per month permanent alimony. The former wife argues on appeal that the permanent alimony amount is insufficient, and that $3,000 to $5,000 is more appropriate considering a marriage which lasted six years and during which she enjoyed an excellent lifestyle. Since the husband did not cross-appeal the award of permanent alimony, the only issue in the case is whether the trial court abused its discretion when it set the amount of permanent alimony. We think it did not, and affirm.
The marriage of the parties was dissolved by a judgment that incorporated the parties’ marital settlement agreement. The wife unsuccessfully attempted to have the judgment set aside on the ground that she was incompetent when she signed the agreement. Part of the agreement concerning alimony stated: “The husband agrees to pay to the wife, as and for rehabilitative alimony, the sum of $600.00 until the sale [and] closing of their home.” After a hearing, the trial court found that the former wife was competent at the time she signed the agreement. In Pollock v. Pollock, 643 So. 2d 1200 (Fla. 5th DCA 1994), we affirmed the denial of relief, but we also pointed out that the affirmance was without prejudice to the former wife to petition for modification to extend or increase the rehabilitative alimony, or to convert it to permanent alimony. Thereafter, the former wife filed a supplemental petition for modification seeking, among other things, permanent alimony. This appeal is taken from the modification judgment.
The record supports the allegation that the former wife suffers from mental health problems. Her total income is the support from her former husband, contributions of approximately $100 to $800 per month from her son by a prior marriage, and approximately $381 she receives from Social Security. She has a high school diploma and has been employed sporadically. The testimony before the trial court was that she is very involved in religious matters and lives alone after a failed attempt to live with her son. Currently, she lives frugally in a one bedroom apartment, which she considers very nice, in a complex with a jogging path, a pool, a Jacuzzi, and a club house.
In setting the amount of permanent alimony, the trial court considered the statutory requirements and applied them to the facts. See § 61.08(2), Fla. Stat.
The trial court found that the marriage was of a short duration — approximately six years — but that the wife was entitled to $749 per month permanent alimony because of her mental health problems, which could not have been contemplated at the time of the marital settlement agreement and the final judgment.
The court considered the income and need of the former wife, the former husband’s income, expenses, and financial reversals, and the fact that the former husband would remain the sole provider for the parties’ child. The court also considered the catastrophic termite damage to the former marital home, where the former husband was residing, and determined that the damage constituted another change in circumstances. The court determined that the former husband had a cash flow problem, but that he could pay alimony. Further, the trial court ordered the former husband to pay the former wife’s attorney’s fees of $22,153, and costs of $3,535.
The former wife was awarded permanent alimony even though arguably, this marriage fell into the grey area between a long-term and a short-term marriage. There is no presumption for or against permanent alimony where the marriage falls into the grey area. See Young v. Young, 677 So. 2d 1301 (Fla. 5th DCA 1996); Zeigler v. Zeigler, 635 So. 2d 50 (Fla. 1st DCA 1994).
Cf. Hann v. Hann, 629 So. 2d 918 (Fla. 2d DCA 1993); Gregoire v. Gregoire, 615 So. 2d 694 (Fla. 2d DCA 1992).
By analogy, then, where a marriage is in the grey area, even where permanent alimony is justified and awarded, the amount of the award can also be in a grey area. That is, the general rule, that the payee spouse should be afforded a lifestyle commensurate to that of the marriage, would not necessarily apply. Indeed, although the purpose of permanent alimony is to provide the needs and the necessities of life as they have been established by the marriage of the parties, and although the two primary elements to be considered when determining permanent periodic alimony are need and ability to pay, Canakaris v. Canakaris, 382 So. 2d 1197 (Fla.1980), in establishing the need, the factors to be considered include the parties’ earning ability, age, health, education, the duration of the marriage, the standard of living enjoyed during its course, and the value of the parties’ estates, id .
It is clear from the record that the trial court considered the marital settlement agreement in which the former wife agreed to rehabilitative alimony of $600 per month which has been increased and changed to permanent alimony. The lower court found a substantial change in circumstances which allowed the court to modify the settlement agreement finding the former wife had met her heavier than usual burden of proof to modify the agreement of the parties. Pimm v. Pimm, 601 So. 2d 534 (Fla.1992). Thus, the only question is whether the trial court had a basis for the award. We find there is a basis for the trial court’s decision and that it did not abuse its discretion, although reasonable persons could differ. As the Supreme Court has stated:
In reviewing a true discretionary act, the appellate court must fully recognize the superior vantage point of the trial judge and should apply the “reasonableness” test to determine whether the trial judge abused his discretion. If reasonable men could differ as to the propriety of the action taken by the trial court, then the action is not unreasonable and there can be no finding of an abuse of discretion. The discretionary ruling of the trial judge should be disturbed only when his decision fails to satisfy this test of reasonableness.
Canakaris at 1203. We find no error in the lower court’s ruling.
AFFIRMED.
PETERSON, J., concur. ANTOON, J., concurs in result only.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
-
Doyle v. Doyle, 789 So. 2d 499 (Fla. 5th DCA 2001)…presumption either for or against permanent alimony exists, but instead the trial court must utilize its discretion, in light of all the applicable statutory factors, in determining whether an award of alimony is appropriate. See Pollock v. Pollock, 722 So. 2d 283 (Fla. 5th DCA 1998).…
-
Escudero v. Escudero, 739 So. 2d 688 (Fla. 5th DCA 1999)…age); Young v. Young, 677 So. 2d 1301 (Fla. 5th DCA 1996) (15 year marriage); Gregoire v. Gregoire, 615 So. 2d 694 (Fla. 2d DCA 1992) (11 year marriage). This court has held that a six year marriage also falls into the gray area. Pollock v. Pollock, 722 So. 2d 283 (Fla. 5th DCA 1998). But see, Green v. Green, 672 So. 2d 49 (Fla. 4th DCA 1996) (6 year marriage is a short-term marriage). . § 61.08, Fla. Stat.…
-
Engesser v. Engesser, 42 So. 3d 249 (Fla. 5th DCA 2010)…an award of alimony. See Canakaris v. Canakaris, 382 So. 2d 1197 (Fla.1980).1 The parties’ seven-year marriage is classified as a gray-area marriage, with no presumption in favor of or against an award of permanent alimony.2 See Pollock v. Pollock, 722 So. 2d 283 (Fla. 5th DCA 1998); Nelson v. Nelson, 721 So. 2d 388, 388 (Fla. 4th DCA 1998); Reynolds v. Reynolds, 668 So. 2d 245, 248 (Fla. 1st DCA 1996). When a marriage falls within the “gray area,” a determination of entitlement to permanent alimony is based…
Previewing 3 of 10 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Canakaris v. Canakaris, 382 So. 2d 1197 (Fla. 1980)
- Pimm v. Pimm, 601 So. 2d 534 (Fla. 1992)
- Young v. Martine Denn Young, 677 So. 2d 1301 (Fla. 5th DCA 1996)
- Gregoire v. Gregoire, 615 So. 2d 694 (Fla. 2d DCA 1992)
- Ogden Aviation Servs. & Alexsis, Inc. v. Khalid DAR, 635 So. 2d 50 (Fla. 1st DCA 1994)
- Zeigler v. Zeigler, 635 So. 2d 50 (Fla. 1st DCA 1994)
- Fenner v. Fenner, 629 So. 2d 918 (Fla. 4th DCA 1993)
- Hann v. Hann, 629 So. 2d 918 (Fla. 2d DCA 1993)
- Rahman v. Rahman, 643 So. 2d 1200 (Fla. 5th DCA 1994)