MANLY W. THIGPEN, APPELLANT,
v.
MARGARET R. THIGPEN, APPELLEE

Fla. 1st DCA | 1973-05-10
No. R-471
CARROLL, DONALD K., Acting C. J., and RAWLS, J., concur.
277 So. 2d 583 Florida District Court of Appeal, First District (1973) Negative Treatment
Cited by 72 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 no-fault divorce appeal, the First District Court of Appeal reversed an alimony award of $450/month to the former wife, holding that under Florida's new no-fault divorce law, alimony requires a showing of need and inability to be self-sustaining. The court rejected permanent alimony where the wife was in good health, had proven employment capacity, and received a fair share of marital assets.


Holding

The court held that the alimony award constitutes an abuse of discretion and cannot be sustained. Under the no-fault divorce law, alimony requires a showing of the demanding spouse's need for support and the other spouse's ability to pay. Where the former wife is in good health, has proven capacity for employment, and received a fair share of marital assets, permanent alimony is not justified.


Headnotes

[1] Alimony awards are based on the need of the demanding spouse and the ability of the other spouse to pay.

[2] The "no fault" divorce law places both parties on a basis of complete equality as partners in the marriage relationship.

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Key Quotes

“The very heart of an alimony award is and always has been the need of the demanding spouse for support and the ability of the other spouse to respond.”

Establishes the foundational test for alimony entitlement

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Facts & Procedural History

Manly and Margaret Thigpen were married for approximately 24 years (from 1947). Margaret was a high school graduate who worked before marriage, then w…

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Opinion of the Court
WIGGINTON, Judge.

WIGGINTON, Judge.

This' appeal is from a final judgment dissolving the marriage heretofore existing between the parties herein. The sole point in issue challenges the correctness of the alimony award made to appellee-wife by the judgment appealed.

The facts are not in material dispute. The parties herein were married to each other on August 23, 1947, and lived together as husband and wife for approximately 24 years except for a one-year separation which occurred about five years before the final separation in 1971. Appellee is a high school graduate who was working regularly at gainful employment at the time of the marriage. She continued to work- regularly for approximately eight months thereafter when she resigned in order to birth their baby. After the child was old enough to attend kindergarten, ap-pellee resumed employment in an automobile sales business owned and operated by appellant-husband where she worked regularly for the next ensuing 15 years. During the period of this employment appel-lee became proficient as an office manager and worker in the automobile sales business.

At the time of judgment appellee was 49 years of age and appellant 48. Although appellee testified that she had no health problems, she did say she was then suffering from an allergy caused by use of cosmetics which affected her feet and prevented her from wearing dress shoes but not sandals or slides. At the time of trial she was being treated" by a physician for this allergy as well as for nervousness induced by the pending dissolution proceeding.

During the period of this marriage the parties accumulated an estate consisting of cash, real estate, personal property, shares of corporate stock, and undivided interests in a dormant corporation. By the final judgment the estate was divided equally between the parties, appellee’s portion consisting of the marital home and furnishings having an equity value of $22,000.00 subject to an outstanding mortgage of $16,000.00; the sum of $8,750.00 cash; automobile valued at $2,000.00; corporate stock valued at $13,300.00; and, the sole beneficial interest in life insurance policies on appellant’s life having a face value of $40,000.00, the premiums on which appellant was ordered to pay and maintain in a current status.

*585The undisputed evidence reveals that at the time of judgment appellant-husband was and had been for some months prior thereto employed as an automobile salesman earning an average net take-home pay of approximately $750.00 monthly. During the same period of time appellee-wife was unemployed although on two separate occasions she had declined the opportunity of employment because of the allergy from which she was suffering. At final hearing appellant testified that since bringing this action he had concluded that it was a mistake to have done so because the marriage of the parties was not irretrievably broken and he felt that the differences which had arisen could be reconciled. Appellee, who had counterclaimed for dissolution of the marriage, disputed appellant’s conclusion and insisted that the marriage was indeed irretrievably broken and could not be repaired. The only child of the parties is a married adult not dependent on her parents for support. Upon consideration of the foregoing facts, the trial court dissolved the marriage and awarded permanent alimony to appellee-wife in the amount of $450.00 monthly. It is this award which forms the focal point of this appeal.

We have carefully considered the pertinent evidence contained in the record but fail to find any reasonable basis on which the alimony award made to appellee can be sustained. The very heart of an alimony award is and always has been the need of the demanding spouse for support and the ability of the other spouse to respond. The new concept of the marriage relation implicit in the so-called “no fault” divorce law enacted by the legislature in 19711 places both parties to the marriage on a basis of complete equality as partners sharing equal rights and obligations in the marriage relationship and sharing equal burdens in the event of dissolution. In speaking of the wife’s place in this new social order emanating from the generally accepted concept of equal rights for all regardless of sex, this court in the case of Beard v. Beard 2 said:

“ . . .In this day and time, women are as well educated and trained in the arts, sciences, and professions as are their male counterparts. The law properly protects them in their right to independently acquire, encumber, accumulate, and alienate property at will. They now occupy a position of equal partners in the family relationship resulting from marriage, and more often than not contribute a full measure to the economic well-being of the family unit. Whether the marriage continues to exist or is severed through the device of judicial decree, the woman continues to be as fully equipped as the man to earn a living and provide for her essential needs. The fortuitous circumstance created by recitation of the marriage vows neither diminishes her capacity for self-support nor does it give her a vested right in her husband’s earnings for the remainder of her life.”

The foregoing pronouncement conforms to the philosophy previously expressed by the Supreme Court in Kahn v. Kahn3 in which it is held:

“ . . . Thus, in an era where the opportunities for self-support by the wife are so abundant, the fact that the marriage has been brought to an end because of the fault of the husband does not necessarily entitle the wife to be forever supported by a former husband who has little, if any, more economic advantages than she has. We do not construe the marriage status, once achieved, as conferring on the former wife of a ship-wrecked marriage the right to live a *586life of veritable ease with no effort and little incentive on her part to apply such talent as she may possess to making her own way. . . . ”

In Lefler v. Lefler 4 the Fourth District Court of Appeal pointed out that the new “no fault” divorce law made certain drastic changes in the heretofore established law of this jurisdiction by furnishing the basis for the husband to seek and obtain an award of alimony from his wife upon the dissolution of their marriage. In commenting upon the nature and purpose of alimony, the court said:

“ . . . We have the view, however, that no matter which direction the flow of alimony may take, its basic nature and purpose remains the same as heretofore, i. e., to provide nourishment, sustenance and the necessities of life to a former spouse who has neither the resources nor ability to be self-sustaining. We expressly hold that just as heretofore the wife’s entitlement to alimony depended upon a showing of her need and the husband’s ability to pay,

In the case sub judice appellee-wife is in good health and has a proven capacity to engage in responsible and gainful employment sufficient to provide for her own needs. The trial court has made a fair and equitable division of the assets accumulated by the parties during their marriage. From this apportionment appellee possesses sufficient funds to enable her to overcome the allergy from which she was suffering at the time of judgment and to reenter the employment market in some acceptable position. It is our conclusion, and we so hold, that the award of permanent alimony made to appellee constitutes an abuse of discretion under the facts and circumstances of this case and cannot be supported by applicable principles of law. The judgment appealed is reversed and the cause remanded with directions that an amended judgment be rendered consistent with the holding and views expressed herein.

Reversed.

CARROLL, DONALD K., Acting C. J., and RAWLS, J., concur.


Cases With Similar Vibessemantic neighbors from the corpus


Citator

Cited By (36 total)

  • Cummings v. Cummings, 330 So. 2d 134 (Fla. 1976)
    …ents with an opinion. OVERTON, C. J., and SUNDBERG, J., dissent and concur with ENGLAND, J. . Article V, Section 3(b)(3), Florida Constitution. . 192 So. 2d 514 (Fla.App.1966). . 252 So. 2d 825 (Fla.App.1971). . 263 So.2a 588 (Fla.App.1972). . 277 So. 2d 583 (Fla.App.1973). . Id. at 585. . Naf v. Wahlberg, 288 So. 2d 576 (Fla.App. 1974) ; Steinhmer, supra, see Note 4. . Gordon v. Gordon, supra, see Note 2., . 287 So. 2d 691 (Fla.App.1973). . 262 So. 2d 269, 272 (Fla.App.1972).…
  • Brown v. Brown, 300 So. 2d 719 (Fla. 1st DCA 1974)
    …wife for the remainder of her life by contributing more than he would have remaining from the fruits of his labor to support himself and his minor daughter, does not appear to us as a decision that virtually eliminates alimony. Thigpen v. Thigpen, 277 So. 2d 583 (Fla.App. 1st 1973), is next. There, the parties had lived together for approximately 24 years. The wife had demonstrated her ability as an able office manager for some 15 years prior to the dissolvement of the marriage. The substantial material ass…
  • Tedford J. Cann v. Margery M. Cann, 334 So. 2d 325 (Fla. 1st DCA 1976)
    …he courts cannot require him to pay alimony other than for rehabilitative purposes.” (Roberts v. Roberts, Fla. App. 1st 1973, 283 So. 2d 396, 397; see also Beard v. Beard, Fla.App. 1st 1972, 262 So. 2d 269; and Thigpen v. Thigpen, Fla.App. 1st 1973, 277 So. 2d 583) The public policy of the State would be utterly frustrated by an award of permanent alimony where it affirmatively appears that the wife has not only the capacity but also the desire to be self-supporting. In considering the amount and duration of…

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