KATHY LOUISE CLAVET SPENCELEY, APPELLANT,
v.
ROBERT SPENCELEY, APPELLEE

Fla. 4th DCA | 1999-11-24
No. 98-4188
STONE, J., and COX, CYNTHIA L„ Associate Judge, concur.
746 So. 2d 505 Florida District Court of Appeal, Fourth District (1999) Positive Treatment
Cited by 2 cases

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.

Synopsis

In this divorce appeal, the Florida Fourth District Court of Appeal affirmed the trial court's award of primary physical custody to the husband, rehabilitative alimony of $600 to the wife for obtaining a mammography license, child support obligations from the wife with prospective income imputation, and denial of the wife's request for attorney's fees.


Holding

The court affirmed all determinations. The $600 rehabilitative alimony award was proper as it matched the wife's documented certification costs and she failed to request living expenses. The prospective child support modification was sustainable because the wife was underemployed and the imputed income was based on a virtually certain future change in circumstances. The denial of attorney's fees was appropriate given the wife's voluntary underemployment, prior receipt of $15,000 for legal fees, and the burden her multiple attorneys imposed on the litigation.


Headnotes

[1] Rehabilitative alimony is intended to establish the receiving spouse's capacity for self-support through skill redevelopment or training.

[2] A rehabilitative alimony award is not erroneous when it precisely covers the cost of necessary certification for the receiving spouse to obtain full-time employment.

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Key Quotes

“The principal purpose of rehabilitative alimony is to establish the capacity for self-support of the receiving spouse, either through the redevelopment of previous skills or provision of the training necessary to develop potential supportive skills.”

Establishes the legal standard for rehabilitative alimony and supports the adequacy of the $600 award for the wife's certification.

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Facts & Procedural History

The parties were married for ten years and had two children. Both were gainfully employed; the husband earned approximately twice the wife's income. T…

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Opinion of the Court
WARNER, C.J.

WARNER, C.J.

The wife makes multiple claims of error as to the trial court’s final judgment of dissolution in which the husband was awarded primary physical custody of the children and child support from the wife. The wife also asserts that the court erred in only ordering the husband to pay $600 in rehabilitative alimony, and denying her request for attorney’s fees. We affirm as to all issues raised.

After a ten-year marriage which produced two children, the parties sought a divorce. Both parties were gainfully employed, the husband as a service technician for Bell South and the wife as an x-ray technician. At the time of the final hearing, the husband earned about twice the amount earned by the wife. The wife was employed only part-time, and she testified that without a mammography license, which costs $600, she could not obtain full-time employment. In the final judgment, the court awarded rehabilitative alimony to the wife in the amount of $600 to obtain her mammography license and ordered her to pay child support, first at the level of her present earnings and then to be increased in six months to an amount based upon the income she could earn as a certified mammographer. The parties’ remaining assets were equally divided and the court ordered each party to bear his or her own attorney’s fees.

The wife first challenges the award of rehabilitative alimony as inadequate. “The principal purpose of rehabilitative alimony is to establish the capacity for self-support of the receiving spouse, either through the redevelopment of previous skills or provision of the training necessary to develop potential supportive skills.” Canakaris v. Canakaris, 382 So. 2d 1197, 1202 (Fla.1980) (citation omitted).

Here the wife had a skill and could develop her full capacity for support by obtaining a mammographer’s license. The award of $600 in rehabilitative alimony was not error because the wife testified that it would cost her $600 to obtain certification. The wife never requested day-to-day living expenses for the three months it would take her to get the certification, and from the evidence the court could conclude that she was not in need of additional living expenses.

As to the child support, the trial court ordered that the amount the wife should pay would increase after six months based on the assumption that she would become a certified mammographer and attain full-time employment. While the wife contends that judgments which provide for automatic changes in support payments upon the occurrence of future events are disfavored in Florida, see, e.g., Hitt v. Hitt, 571 So. 2d 79 (Fla. 4th DCA 1990), we conclude that this award may be sustained on the ground that the wife is currently underemployed and the trial court merely imputed income that the wife should be expected to make once certification is accomplished.

Moreover, the trial court could have concluded from the evidence that mammography jobs were available and that the wife could easily obtain the certification.

Thus, the prospect of obtaining certification and subsequent employment was fairly certain.

We conclude that this prospective modification was based “upon specifically articulated changes in circumstances which would virtually preclude the possibility of unfairness to either party.” Kangas v. Kangas, 420 So. 2d 115, 116 (Fla. 2d DCA 1982) (citations omitted).

Furthermore, we find no error in the trial court’s requirement that each party bear their own attorney’s fees. Although the husband’s income is approximately twice that of the wife’s, the wife is voluntarily underemployed and was not actively seeking work, as almost all of her expenses were being paid by her boyfriend or members of her family. In addition, she received $15,000 pursuant to a court order from the liquidation of the husband’s retirement account to pay for her attorney’s fees. Finally, the trial court could take into consideration the fact that the wife retained five separate attorneys over the course of the litigation, which caused frequent repetitive work. Given all of the factors under Rosen v. Rosen, 696 So. 2d 697, 700 (Fla.1997), we find no abuse of discretion.

As to all other issues raised but not specifically discussed, we also affirm.

STONE, J., and COX, CYNTHIA L„ Associate Judge, concur.


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Citator

Cited By

  • Marcia L. Arena v. John F. Arena, 103 So. 3d 1044 (Fla. 2d DCA 2013)
    …wife should be responsible for a portion of her own fees and costs where the husband’s disposable income was $10,927, the wife’s disposable income was $6273, but each spouse left the marriage with $700,000 in marital assets); Spenceley v. Spenceley, 746 So. 2d 505, 506-07 (Fla. 4th DCA 1999) (affirming trial court’s denial of a fee award to the wife even though the husband earned twice as much, where she was voluntarily underemployed and not actively seeking work, almost all her expenses were paid by family m…
  • Perez v. Perez, 882 So. 2d 537 (Fla. 3d DCA 2004)
    …rth District has said that a prospective modification may be permissible where it is based “upon specifically articulated changes in circumstances which would virtually preclude the possibility of unfairness to either party.” Spenceley v. Spenceley, 746 So. 2d 505, 506 (Fla. 4th DCA 1999) (citation and internal quotation [*540] marks omitted). In that case the court approved an automatic child support adjustment which would occur upon the wife’s receiving of an anticipated employment certification within six…

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