EVELYN M. MOSHER, APPELLANT,
v.
DONALD M. MOSHER, 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.
In this divorce modification case, the trial court retroactively applied the 'no-fault divorce' law's rehabilitative alimony concept to reduce and ultimately terminate permanent alimony awarded before the no-fault law took effect. The appellate court reversed, holding that the rehabilitative thrust of no-fault divorce cannot be applied retrospectively to pre-existing alimony awards, and that wife's rehabilitation alone does not constitute a sufficient change of circumstances to modify alimony.
The court held that the rehabilitative thrust of no-fault divorce law may not be retrospectively applied to modification petitions concerning alimony awarded in decrees entered prior to the law's effective date. Additionally, the court held that rehabilitation of the wife, standing alone, is an insufficient change of circumstances to warrant modification or reduction of alimony. Permanent alimony remains viable to assist a wife maintain her accustomed standard of living, particularly after a long marriage.
[1] The rehabilitative thrust of no-fault divorce law may not be retrospectively applied to petitions for modification of alimony awarded in decrees entered prior to the no-f…
[2] A trial court must consider whether there has been a change of circumstances sufficient to warrant modification of alimony under the law existing prior to the no-fault di…
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 'no-fault' concept required the giving of primary concern to rehabilitation of a wife rather than to the general rule prior thereto of awarding her permanent alimony to assist in maintaining her accustomed lifestyle”
Describes the trial court's erroneous interpretation of how no-fault divorce altered the alimony standard
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceA final divorce judgment entered October 9, 1968 awarded appellant-wife permanent alimony of $750 per month. In August 1973, appellee-husband, a physi…
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 No-Fault Divorce cases and more on FLexlaw
McNULTY, Chief Judge.
A final judgment in this divorce action was entered on October 9, 1968 and appellant-wife was therein awarded permanent alimony in the sum of $750 a month. Subsequently, on or about August 22, 1973, appellee-husband, a physician, filed and served a petition for modification of that alimony. A hearing was held thereon on November 26, 1973 and, on December 3, 1973, the court ordered a “deescalation” of the alimony payments and reduced them to $500 per month. At the same time, the court ordered that he would “entertain a further Petition to deescalate in this matter on September 1, 1974.” On September 30, 1974, such other “deescalation” hearing was indeed held at which time the court, considering it as a continuation of the previous proceeding, terminated all alimony. This appeal ensued.
It is patent from the record that at the time of the modification hearings the court was of the view that the “no-fault divorce” concept changed the law with respect to alimony. That is to say, he considered that the “no-fault” concept required the giving of primary concern to rehabilitation of a wife rather than to the general rule prior thereto of awarding her permanent alimony to assist in maintaining her accustomed lifestyle until such time as a sufficient change of circumstances occurred so as to render such alimony inequitable or unduly burdensome. In doing so, however, the court necessarily gave retrospective effect to such view.1 This was error. We think it’s now well settled that the “rehabilitative” thrust of the no-fault divorce law may not be retrospectively applied in the consideration of a petition for modification of alimony awarded in a decree entered prior thereto.2
Additionally, the trial court never did reach the question of whether there was a change of circumstances sufficient to warrant modification of alimony under the law as it existed prior to the “no-fault” concept. Had he gone that far, though, a careful review of the record reveals that, as a matter of law, there was not a sufficient showing of such a change to support an affirmative finding on that issue. So we cannot affirm on either theory.
Before concluding, and in fairness to the trial judge, we feel compelled to observe that he was without the benefit of our decision in Lash v. Lash,
handed down subsequent to the September 1974 hearing herein, in which this court held that even in cases clearly subsequent to and governed by the “no-fault divorce” law the “rehabilitative alimony” concept did not change the law with respect to permanent alimony in those cases in which it would be recognized as appropriate prior thereto. Permanent alimony is still viable to assist a wife to maintain a set standard of living, particularly one attained after 23 years of marriage such as here, notwithstanding a certain degree of “rehabilitation” on the part of the wife.4 Furthermore, revisited in this light, such “rehabilitation” would be, of itself, an insufficient “change of circumstances” to warrant modification or reduction of alimony.5
In view whereof, the order appealed from should be, and it is hereby, reversed. Subsequent proceedings for modification should, of course, be predicated on future petitions for modifications and decided on principles not inconsistent herewith.
BOARDMAN and GRIMES, JJ., concur. . The effective date of the “no-fault divorce” law, Ch. 61, F.S.1973, was July 1, 1971, more than two years after the final judgment herein.
. See Friedly v. Friedly (Fla.App.2d, 1974), 303 So. 2d 50; Carmel v. Carmel (Fla.App.3d, 1973), 282 So. 2d 6.
. (Fla.App.2d, 1975), 307 So. 2d 241.
. Cf. Hagen v. Hagen (Fla.App.3d, 1975), 308 So. 2d 41.
. Cf. Osman v. Osman (Fla.App.3d, 1973), 280 So. 2d 67.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
-
Johnson v. Johnson, 386 So. 2d 14 (Fla. 5th DCA 1980)…vel.”4 The divorced wife of a long term marriage who is awarded 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…
-
Gratton v. Gratton, 358 So. 2d 262 (Fla. 3d DCA 1978)…fact that the legislature authorized rehabilitative alimony did not do away with permanent alimony, and in a proper case permanent alimony is still desirable and lawful. Messer v. Messer, supra, 342 So. 2d 1076 (Fla. 4th DCA 1977); Mosher v. Mosher, 321 So. 2d 450 (Fla. 2d DCA 1975); Lash v. Lash, 307 So. 2d 241 (Fla. 2d DCA 1975). In Messer the court said “Concerning the rehabilitative alimony, we note that the whole concept thereof presupposes the potential for self-support; and, without this capacity, the…
-
Taplin v. Sol Taplin, 341 So. 2d 1064 (Fla. 3d DCA 1977)…ative thrust of the no-fault divorce law may not be retrospectively applied in the consideration of a petition for modification of alimony awarded in a decree entered prior thereto. Carmel v. Carmel, 282 So. 2d 6 (Fla.3d DCA 1973); Mosher v. Mosher, 321 So. 2d 450 (Fla.2nd DCA 1975). In his cross-petition for modification, Sol pled as the sole ground therefor the rehabilitative concept of the new no-fault divorce law and failed to allege the prerequisite substantial change in the circumstances of the parties.…
Previewing 3 of 6 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Lash v. Lash, 307 So. 2d 241 (Fla. 2d DCA 1975)
- Carmel v. Carmel, 282 So. 2d 6 (Fla. 3d DCA 1973)
- Hagen v. Hagen, 308 So. 2d 41 (Fla. 3d DCA 1975)
- Osman v. Osman, 280 So. 2d 67 (Fla. 3d DCA 1973)
- Jeanine E. Friedly v. Friedly, 303 So. 2d 50 (Fla. 2d DCA 1974)