LOYDEAN SMITHWICK, APPELLANT,
v.
WALTER SMITHWICK, III, APPELLEE

Fla. 1st DCA | 1977-12-06
No. EE-56
SMITH and MELVIN, JJ., concur.
353 So. 2d 572 Florida District Court of Appeal, First District (1977) Caution
Cited by 10 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 dissolution of marriage appeal, the court affirmed the trial court's award of rehabilitative alimony to the former wife but reversed the provision requiring an automatic one-year review. The court held that while rehabilitative alimony was appropriate, the former husband's substantial income and the wife's commitment to childcare justified protection from reduction until the youngest child reached majority plus reasonable rehabilitation time.


Holding

The court affirmed the classification of alimony as rehabilitative rather than permanent but reversed the one-year automatic review provision. The alimony should not be reduced prior to the youngest child reaching majority plus reasonable rehabilitation time thereafter, absent a future petition showing changed circumstances or the husband's inability to pay.


Headnotes

[1] Rehabilitative alimony may be awarded when a spouse requires retraining or education to become employable.

[2] A trial court abuses its discretion by ordering a review of rehabilitative alimony within one year of the final judgment, absent a petition for modification.

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Key Quotes

“appellant should not now be forced to dilute her attention to the children by finding employment”

Establishes that the wife's childcare responsibilities justified protection from immediate employment requirements despite her theoretical employability.

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Facts & Procedural History

The parties married in 1961 when the husband began medical school. The wife, an x-ray technician, contributed her full salary to support the family du…

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Opinion of the Court
McCORD, Chief Judge.

McCORD, Chief Judge.

This appeal is from a final judgment of dissolution of marriage. The parties were married in 1961, the year when appellee began medical school. He graduated four years later, and during that time, appellant contributed all of her salary as an x-ray technician to their support. After medical school, appellee interned and then served in the Army until 1974. By then, the parties had three children. During this period, after the birth of their first child, appellant devoted her full time to being a wife and mother while appellee pursued his career. In 1974, appellee entered private practice with a Jacksonville firm of doctors as a thoracic and cardiovascular surgeon where his net income from the firm for his first year was $236,890.

In addition to property settlement, the trial court awarded appellant rehabilitative alimony in the amount of $1,200 per month to be reviewed by the court after one year to determine whether or not it should be continued, and if so, whether it should be increased, reduced, or should remain the same. The court also awarded child support for the three minor children. No question is raised on appeal as to child support or as to the amount of alimony, but appellant contends that the alimony awarded should have been permanent alimony rather than rehabilitative alimony. She testified below that since she had been in the home for over 10 years, it would be necessary that she be retrained before she would be employable and even then that she would make only $9,000 a year. She testified that she preferred to devote full time to the role of mother and homemaker for the three children as she had done since the birth of the first child.

Appellee contended that she was fully employable and should seek employment.

We find no error in the trial court categorizing the alimony award as rehabilitative rather than permanent. It appears from the evidence that appellant would be émployable as an x-ray technician after a period of refresher training.

However, appellee now has very high earnings and earning capacity as a cardiovascular surgeon, a status which he has attained through the joint efforts of himself and appellant; and since the birth of their first child, appellant’s full time has been devoted to being a mother to the three children and a wife to appellee. In view of these facts, appellant should not now be forced to dilute her attention to the children by finding employment. Compare Brown v. Brown, 300 So. 2d 719 (Fla. 1 DCA 1974).

Appellee unquestionably has the financial ability to pay the alimony awarded without any degree of strain. On the other hand, at appellant’s present age (approximately 38 years), appellee should not be required to support her for the balance of her life. She should, however, be adequately supported by him during the period of the minority of the children and during a reasonable rehabilitative period thereafter, and she should not live under the uncertainty of an automatic reappraisal of the alimony during such period. As aforesaid, we find no error in categorizing the alimony as rehabilitative, but we do find it was an abuse of discretion under the facts shown by the record for the trial court to order a review of the alimony one year after the final judgment. The final judgment should direct that the alimony will not be reduced prior to the youngest child reaching the age of his majority and such reasonable time thereafter as may be necessary for appellant to rehabilitate herself for employment, in the absence of a future showing by appellee on a petition for modification filed by him that he is unable to make alimony payments in the amount awarded or upon a showing of a change of circumstances which would justify a reduction in alimony.

We have considered the other points raised by appellant and find them to be without merit.

Affirmed in part and reversed in part and remanded with directions to modify the final judgment consistent with this opinion.

SMITH and MELVIN, JJ., concur.


Cases With Similar Vibessemantic neighbors from the corpus


Citator

Cited By

  • Dominik v. Rolla E, 390 So. 2d 81 (Fla. 3d DCA 1980)
    …ive alimony in such situations is well recognized, and the courts generally agree that the period for payment of this type of alimony may encompass a protracted length of time. Hall v. Hall, 363 So. 2d 137 (Fla. 2d DCA 1978); Smithwick v. Smithwick, 353 So. 2d 572 (Fla. 1st DCA 1977); and Manning v. Manning, 353 So. 2d 103 (Fla. 1st DCA 1977). See Robinson v. Robinson, 366 So. 2d 1210 (Fla. 1st DCA 1979). The husband belatedly asserts that the awards of alimony and child support exceed the amount listed as n…
  • Stoler v. Stoler, 376 So. 2d 253 (Fla. 3d DCA 1979)
    …career. See: Cann v. Cann, 334 So. 2d 325 (Fla. 1st DCA 1976); Collins v. Collins, 323 So. 2d 583 (Fla. 3d DCA 1975); Zaugg v. Zaugg, 357 So. 2d 201 (Fla. 3d DCA 1978); Manning v. Manning, 353 So. 2d 103 (Fla. 1st DCA 1977); Smithwick v. Smithwick, 353 So. 2d 572 (Fla. 1st DCA 1977). In Cann v. Cann, supra, the First District Court of Appeal held that the trial judge erred in awarding permanent alimony rather than rehabilitative alimony in view of the wife’s capacity and desire to be self-supporting. The co…
  • Robinson v. Robinson, 366 So. 2d 1210 (Fla. 1st DCA 1979)
    …nal role, and provided she is in good health, she should make every effort to rehabilitate herself within a reasonable [*1212] time thereafter, and when she has done so, rehabilitative alimony is to be discontinued. Again, in Smithwick v. Smithwick, 353 So. 2d 572, 574 (Fla. 1st DCA 1978), we permitted the continuation of rehabilitative alimony to a wife, aged 38, in good health, during the minority of the youngest child and — for “such reasonable time thereafter as may be necessary for [her] to rehabilitate…

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