MARJORIE L. HALL, APPELLANT,
v.
MICHAEL G. HALL, APPELLEE

Fla. 2d DCA | 1978-09-08
No. 77-626
BOARDMAN, Acting C. J., and OTT, J., concur.
363 So. 2d 137 Florida District Court of Appeal, Second District (1978) Caution
Cited by 14 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 a dissolution of marriage case, the Florida appellate court reversed and remanded the trial court's awards of child support and alimony as inadequate, finding they constituted an abuse of discretion. The court held that the combined monthly awards must be no less than the $1,700 the husband contributed during the marriage and that the three-year limit on rehabilitative alimony was unreasonable.


Holding

The court held that the combined child support and alimony awards were inadequate and constituted an abuse of discretion, requiring a minimum combined amount of $1,700 per month plus mortgage payments, taxes, and insurance. The court also held that while rehabilitative alimony was appropriate given the wife's potential for self-support, the three-year fixed period was an abuse of discretion and rehabilitative alimony should continue during the children's minority and for a reasonable rehabilitation period thereafter.


Headnotes

[1] An award of child support and alimony is an abuse of discretion when it is so inadequate as to fail to maintain a standard of living reasonably commensurate with that est…

[2] Rehabilitative alimony is appropriate when a spouse has the potential for self-support, but requires a period of retraining or education to achieve that potential.

Previewing 2 of 5 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

Key Quotes

“When considering the question of alimony, the primary criteria to be used by the trial judge in his determination of the award are the husband's ability to pay and the needs of the wife, taking into consideration their shared standard of living during the marriage.”

Establishes the legal standard for determining alimony awards that the court applied in this case.

Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.

Join FLexlaw to unlock all legal intelligence

Facts & Procedural History

The parties married in 1962 when the husband was in medical school. The wife worked as a physical education teacher to support the family until their …

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.


Opinion of the Court
DANAHY, Judge.

DANAHY, Judge.

In this dissolution of marriage proceeding initiated by the husband, the wife contends that the awards of child support and alimony were so inadequate as to constitute an abuse of discretion. We agree.

The parties were married in 1962 when the husband was still in medical school in New Jersey. Until their first child was born, the wife worked in that state as a physical education teacher helping to put the husband through medical school. She has not worked since then, the parties having chosen to have her keep up their home and rear their two children, now 13 and 11 years of age. Her desire is to continue fulltime in her primary responsibilities of homemaking and child guidance until the children reach their majority. She is 38 years of age and holds a college degree in physical education. She is, however, not certified to teach in Florida and to secure such a certificate would have to be away from the children and commute from Brooksville to either Gainesville or Tampa for retraining at a university in one of those communities. She has no outside income and her assets are insignificant.

The husband has'been a medical doctor for eight years and has a successful medical practice in Brooksville. He and two other physicians own Brooksville Medical Center in that community. Although the wife holds no interest in that property, she remains jointly liable with the husband on notes and mortgages totaling the sum of $155,000.

In the final judgment, the trial court divided a small amount of jointly owned real property and stock between the parties; granted the wife possession of the parties’ modest home and ordered the husband to pay monthly home mortgage payments, taxes and insurance in the amount of $176.10 during the minority of the children while they are in the custody of the wife; ordered the husband to pay some of the wife’s attorneys’ fees; awarded the wife $600 per month child support; and awarded her $300 per month rehabilitative alimony for three years, presumably to enable the wife to obtain a Florida teaching certificate so as to try to obtain employment in the Hernando County school system.

The wife’s detailed financial affidavit introduced into evidence, without objection or refutation, establishes combined expenses for herself and the children of $2,419 per month to maintain the standard of living enjoyed by them during the marriage of the parties. During the last few years the parties lived together, the husband provided $1,700 per month to run the household and in addition paid various other expenses including house repairs, family vacations, country club expenses, and mortgage, taxes and insurance on the house. After the husband left home and during the one-year pendency of this action, he contributed $1,400 per month toward household expenses and also paid the house mortgage, taxes and insurance and certain other bills which totaled about $250 per month.

At trial the husband professed a general inability to pay a combined amount of alimony and child support in excess of $1,000 per month. The evidence submitted to the trial judge shows that the husband’s taxable income from his medical practice over the past three years ranged from $60,000 to $70,000 per year. His financial affidavit lists only common personal expenses and he testified to no other significant expenses. He has been paying generous sums into his Keough retirement plan and in the year prior to the final judgment, his contribution to that account was between $6,500 and $7,500. There is nothing in this record to indicate he is not able to pay substantially more child support and alimony than that ordered by the trial court.

When considering the question of alimony, the primary criteria to be used by the trial judge in his determination of the award are the husband’s ability to pay and the needs of the wife, taking into consideration their shared standard of living during the marriage. Sisson v. Sisson, 336 So. 2d 1129 (Fla.1976).1 Under the final judgment in the case at bar, the wife and children are compelled to live on an amount which is less than one-half the amount shown by the wife to be necessary to maintain the shared standard of living of the family which was established by the husband. The amount she will receive under the judgment does not even include any additional expenses which she would incur in travel and educational expenses should she attempt to attain a Florida teaching certificate. Because of her demonstrated need for more money to maintain a standard of living reasonably commensurate with that established by him and shared by the parties during the marriage, and his clear ability to pay more, her income from alimony, when combined with the award of child support, is so inadequate as to constitute a clear showing of abuse of discretion.

While we do not purport to tell the trial court what amount the husband should reasonably pay or how that amount should reasonably be distributed between child support and alimony, we do say that when the trial court refashions the awards hereafter, the combined amount should be no less than the $1,700 per month which the husband has contributed over the past several years of this marriage, in addition to the mortgage payments, taxes and insurance on the home of the parties.

The wife also contends that she should continue to remain at home with the children, particularly as they enter the important and formative years of their teens. She argues that this would continue the custom and plan established by the parties after the birth of their first child. Because this is so, she argues that the form of alimony should be permanent rather than rehabilitative and that in any event, a period of three years is unreasonable. Had the trial judge who heard the parties’ testimony and who considered all aspects of this case granted permanent alimony, we do not believe he would have been unreasonable in doing so. Walton v. Walton, 354 So. 2d 464 (Fla. 1st DCA 1978). And had any one of us been sitting as a trier of fact, we may well have granted permanent alimony. But that is not the test on appeal and we may not substitute our judgment for that of the trial judge, absent a clear showing of abuse of his discretion.

An award of rehabilitative as opposed to permanent alimony, of course, presupposes a potential for self-support. Reback v. Reback, 296 So. 2d 541 (Fla. 3d DCA 1974). The wife here is 38 years of age, in good health and, though not certified in Florida, holds a teaching degree which she utilized for a brief period prior to the birth of the parties’ first child. The trial judge correctly perceived the potential for her attaining a Florida teaching certificate through further educational effort and subsequent employment at some future time. After a period of retraining, then, her capacity for employment supports the use of the rehabilitative form of alimony to sustain her until that time when she can contribute toward providing a part if not all of the sums necessary to maintain a standard of living reasonably commensurate with that established by the husband during the marriage.

Having decided that the use of rehabilitative alimony was appropriate in this case, we do agree with the wife that a fixed period of three years at which time the door will slam shut constitutes an abuse of discretion under the facts on this record. The final judgment should direct that rehabilitative alimony will continue during the minority of the children and during a reasonable rehabilitation period thereafter. Thirteen years ago the parties felt it important that the wife remain at home to rear and guide these children. While there is no reason for the husband to support her for the rest of her life, we think the decision of these parents to provide these children with their mother’s full attention over the years should not be changed solely because their father now decides he wants to dissolve his marriage to their mother. Smithwick v. Smithwick, 353 So. 2d 572 (Fla. 1st DCA 1977).

Finally, the wife asks us to reverse because the judgment failed to award her the husband’s interest in their home as lump sum alimony and because the judgment awarded her an insufficient amount of attorneys’ fees and costs. On the latter point, the husband says it was error to order him to pay any of the wife’s attorneys’ fees. We reject these arguments and find no abuse of discretion by the trial judge in his treatment of these provisions of the final judgment. Reversed in part, affirmed in part, and remanded for further proceedings consistent with this opinion.

BOARDMAN, Acting C. J., and OTT, J., concur. . We note that, although not applicable to this case, Ch. 78-339, Laws of Florida, which became effective June 19, 1978, lists specific factors which must be considered in determining an award of alimony. All of these factors have been taken into consideration in this case in applying the criteria set forth in Sisson v. Sisson.


Cases With Similar Vibessemantic neighbors from the corpus


Citator

Cited By

  • Dartha Killingsworth Thompson v. Thompson, 402 So. 2d 1220 (Fla. 5th DCA 1981)
    …ant, and I submit, they should not be. Under these circumstances, [*1222] I would remand to the trial judge to reconsider the alimony award to the wife, without regard to “fault.” . Alford v. Alford, 364 So. 2d 1255 (Fla.2d DCA 1978); Hall v. Hall, 363 So. 2d 137 (Fla.2d DCA 1978), cert. denied, 370 So. 2d 459 (Fla.1979). . She did receive a $10,000 lump sum amount. . Fodor v. Fodor, 379 So. 2d 466 (Fla. 4th DCA 1980); Shaw v. Shaw, 369 So. 2d 81 (Fla.3d DCA 1979).…
  • Dominik v. Rolla E, 390 So. 2d 81 (Fla. 3d DCA 1980)
    …eking employment outside the home. The need for rehabilitative 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…
  • Pfaffko v. Pfaffko, 559 So. 2d 1204 (Fla. 2d DCA 1990)
    …gnize that there is case law to the effect that the prior standard of living to be used as a guide in fixing the amount of support payments is that last shared by the spouses. See Sokol v. Sokol, 441 So. 2d 682, 684 (Fla. 2d DCA 1983); Hall v. Hall, 363 So. 2d 137, 139 (Fla. 2d DCA 1978), cert. denied, 370 So. 2d 459 (Fla.1979). However, we conclude that that case law is materially distinguishable and that there was no abuse of discretion in the making of those awards in this case, as we will explain. Under…

Previewing 3 of 7 citing cases — full citator treatment, depth of discussion, and citing context are member features.

Join FLexlaw to unlock all legal intelligence

Authorities Cited

Full citator, related cases, and AI research tools

Open in FLexlaw