FRANCES J. YOHEM, APPELLANT,
v.
IRVIN L. YOHEM, APPELLEE
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In a divorce case, the Florida appellate court reversed the trial court's award of rehabilitative alimony to a 47-year-old homemaker with no marketable skills or employment experience, finding permanent alimony was appropriate, and also reversed an interest award calculation on jointly owned savings account funds. The court affirmed the judgment in all other respects.
The trial court erred in awarding rehabilitative alimony because the wife lacked the capacity for self-support; permanent alimony was appropriate. The trial court erred in computing the interest award at $2,000; on remand, interest must be recomputed at the legal rate for the period the husband was withheld his share of the joint account.
[1] Rehabilitative alimony is proper only when there is a potential or actual capacity for self-support; absent such capacity, there is nothing to which a spouse can be rehab…
[2] A spouse who has devoted herself primarily to being a housewife and raising children, and who lacks marketable skills or employment experience, may not be awarded rehabil…
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Join FLexlaw to unlock all legal intelligence“rehabilitative alimony presupposes, and is therefore only proper in those cases in which there is, the potential or actual capacity for self-support”
Establishes the key legal standard for when rehabilitative alimony is appropriate
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Join FLexlaw to unlock all legal intelligenceThe parties divorced after a 25-year marriage. The wife is 47 years old with a chronic bladder condition, a high school education, no marketable skill…
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OWEN, Judge.
Upon appellant/wife’s petition, final judgment dissolving the parties’ twenty-five year marriage was entered. By way of this appeal, the wife questions the propriety of the trial court’s adjudication of certain property rights and alimony provisions in the final judgment, and certain provisions of a postjudgment order on petition for rehearing. The husband cross-appeals from that part of the final judgment awarding the wife attorney’s fees.
Of the five issues urged on appeal by the wife, we find merit in only those two which we shall discuss here: (1) the award of rehabilitative, rather than permanent, alimony in the amount of $50 per week for one year; and (2) the amount of interest awarded the husband upon monies from a joint savings account, withdrawn by the wife and placed in her sole name shortly before filing the instant action.
The facts of this case do not warrant an award of rehabilitative alimony. Appellant/wife is forty-seven years old and suffers from a chronic bladder condition. She is a high school graduate, but is possessed of no marketable skills nor employment experience. Although she did work for approximately three years prior to the marriage, thereafter she devoted herself primarily to being a housewife and to raising the parties’ five children, a task in which she is still engaged, having been awarded custody, as a result of the divorce, of the parties’ youngest child, a thirteen year old daughter. The appellate courts of this state have been confronted with situations analogous to this one in cases now too numerous for citation. E.g., Patterson v. Patterson, 315 So. 2d 104 (4th DCA Fla.1975); Hernan dez v. Hernandez, 312 So. 2d 466 (4th DCA Fla.1975); Goldstein v. Goldstein, 310 So. 2d 361 (3rd DCA Fla.1975); Lash v. Lash, 307 So. 2d 241 (2nd DCA Fla.1975); Schwartz v. Schwartz, 297 So. 2d 117 (3rd DCA Fla.1974); Reback v. Reback, 296 So. 2d 541 (3rd DCA Fla.1974); Wilson v. Wilson, 279 So. 2d 893 (4th DCA Fla.1973).
As has been consistently iterated in those cases, rehabilitative alimony presupposes, and is therefore only proper in those cases in which there is, the potential or actual capacity for self-support. Reback v. Reback, supra; Lash v. Lash, supra. Absent such capacity, there is nothing to which the spouse can be rehabilitated. Schwartz v. Schwartz, supra.
The record before us shows such capacity to be utterly lacking here. We therefore reverse the award of rehabilitative alimony and remand the cause to the trial court with instructions to enter an award for permanent alimony in such amount as the court shall determine to be appropriate based upon the current needs of the wife and the husband’s ability to pay. Wilson v. Wilson, supra. Such permanent alimony award shall remain subject, of course, to the right of either party, under the appropriate circumstances, to seek modification pursuant to Fla.Stat. § 61.14 (1973). Wilson v. Wilson, supra; Schwartz v. Schwartz, supra.
We further find that it was error to award the husband interest in the amount of $2,000 on his share of a jointly owned savings account which the wife had wrongfully withheld from him. While the decision to award interest was within the trial court’s discretion, see, Welsh v. Welsh, 160 Fla. 380, 35 So. 2d 6 (1948), it is manifest that the computation thereof was in error. That part of the order of February 24, 1975 awarding, appellee $2,000 as interest is reversed, and upon remand the award shall be computed on the legal rate of interest for the period that the appellant withheld from appellee his share of the joint savings account.
Finding no merit in the wife’s remaining contentions, nor in those presented in the husband’s cross-appeal, we affirm the judgment in all other respects. The cause is remanded to the trial court for further proceedings consistent herewith.
Affirmed in part; reversed in part.
MAGER, J., and STRAWN, DAVID U., Associate Judge, concur.
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Colucci v. Colucci, 392 So. 2d 577 (Fla. 3d DCA 1980)…, 355 So. 2d 514 (Fla.1978); McAllister v. McAllister, 345 So. 2d 352 (Fla. 4th DCA 1977), cert. denied, 357 So. 2d 186 (Fla.1978); McNaughton v. McNaughton, 332 So. 2d 673 (Fla. 3d DCA 1976), cert. denied, 345 So. 2d 424 (Fla.1977); Yohem v. Yohem, 324 So. 2d 160 (Fla. 4th DCA 1975); King v. King, 316 So. 2d 322 (Fla. 4th DCA 1975); Blass v. Blass, 316 So. 2d 308 (Fla. 3d DCA 1975); Lash v. Lash, 307 So. 2d 241 (Fla. 2d DCA 1975); Reback v. Reback, 296 So. 2d 541 (Fla. 3d DCA 1974), cert. denied, 312 So. 2d…
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Tedford J. Cann v. Margery M. Cann, 334 So. 2d 325 (Fla. 1st DCA 1976)…ically terminates by expiration of the period fixed in the final judgment or by such subsequent order as may modify the period. {Lee v. Lee, supra) Rehabilitative alimony presupposes the capacity for self-support. (Yohem v. Yohem, Fla.App. 4th 1975, 324 So. 2d 160) If the spouse to whom the order of rehabilitative alimony was made can demonstrate a diminished capacity for self-support, then (everything else being equal) a petition for modification should be granted. In contrast, permanent alimony may be termi…
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McCLOSKEY v. McCLOSKEY, 359 So. 2d 494 (Fla. 4th DCA 1978)…g the 35 year marriage between the parties. There is no evidence in the record which demonstrates the potential or actual capacity for self support by the wife. On authority of Reback v. Reback, 296 So. 2d 541 (Fla. 3d DCA 1974); and Yohem v. Yohem, 324 So. 2d 160 (Fla. 4th DCA 1975), we reverse the final judgment insofar as the award of rehabilitative alimony is concerned and remand the cause with directions that the trial court enter an award for permanent alimony in such amount as the court shall determine…
Previewing 3 of 10 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Reback v. Reback, 296 So. 2d 541 (Fla. 3d DCA 1974)
- Lash v. Lash, 307 So. 2d 241 (Fla. 2d DCA 1975)
- Welsh v. Welsh, 160 Fla. 380 (Fla. 1948)
- Mazel & Broche, Inc. v. First Fed. Sav. & Loan Ass'n OF Miami, 279 So. 2d 893 (Fla. 3d DCA 1973)
- Schwartz v. Schwartz, 297 So. 2d 117 (Fla. 3d DCA 1974)
- Patterson v. Patterson, 315 So. 2d 104 (Fla. 4th DCA 1975)
- Goldstein v. Goldstein, 310 So. 2d 361 (Fla. 3d DCA 1975)
- Hernandez v. Delfin Antonio Hernandez, 312 So. 2d 466 (Fla. 4th DCA 1975)