ROBERT B. MERTZ, APPELLANT,
v.
ANNETTE H. MERTZ, APPELLEE
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In a dissolution of marriage case, the Florida District Court of Appeal reversed the trial court's award of rehabilitative alimony and attorney's fees to the wife, finding that the wife's substantial separate assets and financial position did not justify either award, while the husband, a 64-year-old physician with limited earning years remaining and responsibility for two daughters, could not bear these burdens.
The court reversed both the award of rehabilitative alimony and the award of one-half of the wife's attorney's fees, holding that rehabilitative alimony was inappropriate absent a showing of necessity for vocational or therapeutic retraining, and that attorney's fees should only be awarded when necessary to ensure both parties have reasonably equal ability to secure competent legal counsel, which was not the case here given the wife's superior financial position.
[1] Rehabilitative alimony requires a showing of facts sufficient to establish a need for vocational or therapeutic training or retraining, or to prevent financial hardship d…
[2] A party with substantial separate intangible assets is not entitled to rehabilitative alimony.
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 intelligence“The term "rehabilitative" alimony contemplates sums necessary to assist a divorced person in regaining a useful and constructive role in society through vocational or therapeutic training or retraining, and for the further purpose of preventing financial hardship on society or the individual during the rehabilitative process.”
Establishes the legal definition and purpose of rehabilitative alimony under Florida law
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Join FLexlaw to unlock all legal intelligenceThe wife had accumulated approximately $163,000 in stocks and bonds, $1,800 in savings, and a one-third interest in a $28,000 mortgage, plus received …
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McNULTY, Judge.
Appellant-husband in this dissolution of marriage proceeding presents four points on appeal, only two of which are meritorious and require reversal. Appellee’s cross-appeal is without merit.
First, we think the trial court .erred in awarding appellee-wife rehabilitative alimony in the absence of a showing of facts sufficient to establish a need therefor. The term “rehabilitative” alimony contemplates sums necessary to assist a divorced person in regaining a useful and constructive role in society through vocational or therapeutic training or retraining, and for the further purpose of preventing financial hardship on society or the individual during the rehabilitative process.1 Here, no such rehabilitation process is shown to be necessary nor, indeed, is it contemplated according to the testimony of the wife. At the time of trial, she had a separate intangible estate consisting of approximately $163,000 in stocks and bonds, $1,800 in savings, a one-third interest in a $28,000 mortgage, and received appellant’s interest in the marital home as lump sum alimony, there being no grounds for special equity.2
Appellant, on the other hand, had accumulated about $37,000 in stocks and other investments, had approximately $10,000 equity in his office building and $3,000 in savings. Furthermore, while he is a physician who had a net income of about $25,000 the previous year (his best year), he was then 64 years old with only a few working years left to attain financial security, and by the terms of the judgment will continue to bear the burden of support and college educations for the couple’s two teenage daughters. Rehabilitative alimony was inappropriate.
Concerning the second reversible point on appeal, appellant complains of the order requiring him to pay a portion of appellee’s attorney’s fees. We think he is right. The purpose of awarding attorney fees under the new dissolution of marriage law3 has not changed, in our view, from the purposes contemplated by its predecessors; that purpose is to ensure that both parties will have reasonably the same ability to secure competent legal counsel. Here, the wife is clearly on equal if not superior footing with the husband to secure such counsel. It was error to award her one-half of her reasonable attorney’s fees.
Accordingly, the judgment appealed from should be, and it is hereby, affirmed in part and reversed in part; and the cause is remanded to the trial court for action not inconsistent herewith.
LILES, Acting C. J., and HOBSON, J., concur. . Cf. Stamm v. Stamm (Fla.App.1972), 266 So. 2d 413, and Beard v. Beard (Fla.App.1972), 262 So. 2d 269.
. See, e. g., Steinhauer v. Steinhauer (Fla.App.1971), 252 So. 2d 825.
. See, Ch. 61, Fla.Stat.1971, F.S.A.
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Citator
Cited By (40 total)
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Canakaris v. Canakaris, 382 So. 2d 1197 (Fla. 1980)…abuse of discretion. The final issue presented to us is whether the award of the wife’s attor [*1205] ney’s fees, to be determined at a subsequent hearing, was error. In Cummings v. Cummings, 330 So. 2d 134, 136 (Fla.1976), we cited Mertz v. Mertz, 287 So. 2d 691 (Fla. 2d DCA 1973), as correctly stating that the purpose of section 61.16, Florida Statutes, was to ensure that both parties will have similar ability to secure competent legal counsel. Without question, the financial positions of the parties in th…
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Rosen v. Rosen, 696 So. 2d 697 (Fla. 1997)…aris, 382 So. 2d 1197, 1205 (Fla.1980)(purpose of section 61.16 is “to ensure that both parties will have similar ability to secure competent legal counsel”); Cummings v. Cummings, 330 So. 2d 134, 136 (Fla.1976)(quoting with approval Mertz v. Mertz, 287 So. 2d 691, 692-93 (Fla. 2d DCA 1973))(“[T]he purpose of awarding attorney fees under the new dissolution of marriage law has not changed, in our view, from the purposes contemplated by its predecessors; that purpose is to ensure that both parties will have re…
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Cummings v. Cummings, 330 So. 2d 134 (Fla. 1976)…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).…
Previewing 3 of 40 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Emil Rossodivita v. The King's Surf Ltd., 252 So. 2d 825 (Fla. 4th DCA 1971)
- Steinhauer v. Lossie S. Steinhauer, 252 So. 2d 825 (Fla. 4th DCA 1971)
- State of Fla. Dep't OF Transp. v. Armer E. White, 262 So. 2d 269 (Fla. 1st DCA 1972)
- Beard v. Beard, 262 So. 2d 269 (Fla. 1st DCA 1972)
- Thoburn Stamm, Jr. v. Stamm, 266 So. 2d 413 (Fla. 3d DCA 1972)