SYLVIA G. HERBERT, APPELLANT,
v.
CHARLES W. HERBERT, APPELLEE
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In this family law appeal, the Florida District Court of Appeal reversed a trial court's order terminating the husband's alimony obligation while affirming the reduction of child support, holding that permanent alimony cannot be eliminated based solely on the wife's ability to support herself without specific pleadings and proof supporting termination.
The court held that permanent alimony cannot be terminated merely because the wife is able to support herself; termination of alimony requires specific pleadings and proof supporting such termination. The court affirmed the reduction of child support but reversed and remanded the portion terminating alimony, directing the trial court to determine an appropriate reduction consistent with the pleadings and proof.
[1] An appellate court cannot evaluate allegations of error in a trial judge's findings without a transcript of the proceedings, and such findings must be presumed correct.
[2] A trial court abuses its discretion when it terminates an alimony obligation when the pleadings only prayed for a reduction.
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Join FLexlaw to unlock all legal intelligence“a substantial change in the circumstances of the husband's ability to pay or the wife's need may necessitate modification”
Establishes the legal standard for modifying alimony and support obligations
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Join FLexlaw to unlock all legal intelligenceThe parties were divorced and the final judgment established the husband's obligation to pay permanent periodic alimony and child support. The husband…
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MAGER, Judge.
The wife appeals an order modifying the final judgment of dissolution in which order alimony payments were terminated and child support payments reduced.
We are of the opinion that no reversible error has been demonstrated insofar as it pertains to the trial court’s finding that a substantial change in circumstances has occurred (since the rendering of the final decree) in the husband’s ability to provide alimony and support. A transcript of the testimony of the modification proceedings was not presented to this court apparently because such proceedings were not stenographically recorded. In the absence thereof an appellate court cannot evaluate allegations of error in the findings of a trial judge; such. findings must be presumed to be correct and will not be disturbed. Pryor v. Pryor, Fla.App.1973, 274 So. 2d 242; Purvis v. Carver, Fourth District Court of Appeal 1974.
However, the appellate record is adequate to the extent that an examination thereof reflects an abuse of discretion in the determination that the husband’s obligation to pay permanent periodic alimony “shall cease with the payment due on January 15, 1974”. The final judgment of dissolution and the order denying rehearing thereof clearly establish the husband’s ability and the wife’s need for permanent periodic alimony and child support. That is not to suggest that these are iron-clad determinations ; on the contrary, a substantial change in the circumstances of the husband’s ability to pay or the wife’s need may necessitate modification. But, here, the husband’s petition for modification alleging matters bearing upon a substantial change in his financial circumstances and resulting in the order under review merely prayed for “an order reducing child support and alimony”. The pleadings do not reflect any suggestion or intimation that the husband’s obligation to pay alimony should cease because of a substantial changes in his circumstances or those of his wife.
Nevertheless, the trial court proceeded to terminate the husband’s alimony obligation rather than reduce the same during his period of financial inability as prayed for in his petition. The trial court predicated this cessation upon its finding that there was “no justification in extending the husband’s obligation for alimony to a woman who is well capable of supporting herself”. This gratuitous determination was inconsistent with the husband’s petition for modification and for that matter with every other pleading and prayer for relief filed by the husband in the dissolution proceedings. Cf. Purvis v. Carver, supra.
Moreover, the mere fact that the court finds that “the wife is able to support herself” does not mandate a ritualistic incantation and application of the “rehabilitative alimony principle. See Brown v. Brown, Fla.App.1974, 300 So. 2d 719; Reback v. Reback, Fla.App.1974, 296 So. 2d 541. The “birth” of rehabilitative alimony (under the new dissolution of marriage law) does not spell the “death” of permanent alimony.
To the extent that the final judgment declares that the husband’s obligation to pay alimony shall cease, it is erroneous; that portion of the final judgment is vacated and the cause remanded to the trial court for the purpose of determining an appropriate reduction of the husband’s alimony obligation consistent with the pleadings and proof. Nothing contained herein shall be construed as precluding the trial court from considering terminating the husband’s obligation to pay alimony upon appropriate pleadings and proof.
Affirmed, in part; reversed, in part.
OWEN, C. J., and WALDEN, J., concur.
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Smithwick v. Smithwick, 343 So. 2d 945 (Fla. 3d DCA 1977)…So. 2d 334 (Fla.1957); Taylor v. Taylor, 143 So. 2d 516 (Fla.2d DCA 1962); Goff v. Goff, 151 So. 2d 294 (Fla.3d DCA 1963); Lourcey v. Lourcey, 256 So. 2d 25 (Fla.1st DCA 1971); Purvis v. Carver, 303 So. 2d 681 (Fla.4th DCA 1974); Herbert v. Herbert, 304 So. 2d 465 (Fla.4th DCA 1974). Accordingly, those provisions of the judgment terminating alimony and reducing the child support are set aside, and the alimony and child support payments provided in the settlement agreement are reinstated without prejudice to…
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Hirsch v. Hirsch, 642 So. 2d 20 (Fla. 5th DCA 1994)…v. Casella, 569 So. 2d 848, 849 (Fla. 4th DCA 1990). Accord Applegate v. Barnett Bank of Tallahassee, 377 So. 2d 1150, 1152 (Fla.1979); Fenner v. Fenner, 599 So. 2d 1843, 1345 (Fla. 4th DCA), rev. denied, 613 So. 2d 3 (Fla.1992); Herbert v. Herbert, 304 So. 2d 465, 466 (Fla. 4th DCA 1974). Nevertheless, the appellate court is authorized to reverse a judgment as a matter of law where an error of law is apparent on the face of the judgment. See Casella, 569 So. 2d at 849.1 Here, because an error of law is appar…
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Johnson v. Johnson, 386 So. 2d 14 (Fla. 5th DCA 1980)…rded permanent alimony should not be faced with the prospect of losing her right to alimony if she becomes better educated, or if she earns a modest income as in this case. Mosher v. Mosher, 321 So. 2d 450 (Fla. 2d DCA 1975); see Herbert v. Herbert, 304 So. 2d 465 (Fla. 4th DCA 1974); McAllister v. McAllister, 345 So. 2d 352 (Fla. 4th DCA 1977). This premise is even stronger where the parties agreed to the permanent alimony award initially,5 and where both contemplated it would be necessary for the former wif…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Brown v. Brown, 300 So. 2d 719 (Fla. 1st DCA 1974)
- Reback v. Reback, 296 So. 2d 541 (Fla. 3d DCA 1974)
- Pryor v. Pryor, 274 So. 2d 242 (Fla. 1st DCA 1973)