Adams v. Adams

• Decision Date: 02 June 1992
• Docket Number: No. 91-944,91-944
• Citation: 604 So.2d 494
• Parties: Carolyn Idell Wade ADAMS, Appellant, v. John C. ADAMS, Appellee. 604 So.2d 494, 17 Fla. L. Week. D1398
• Court: Florida District Court of Appeals

Page 494

604 So.2d 494

Carolyn Idell Wade ADAMS, Appellant, v. John C. ADAMS, Appellee.

No. 91-944.

604 So.2d 494, 17 Fla. L. Week. D1398

District Court of Appeal of Florida,

Third District.

June 2, 1992.

Rehearing Denied Oct. 6, 1992.

Joe N. Unger, Miami, for appellant.

Melvyn B. Frumkes, Elser, Greene & Hodor and Cynthia L. Greene, Miami, for appellee.

Before SCHWARTZ, C.J., and BASKIN and LEVY, JJ.

PER CURIAM.

In this appeal from a final dissolution of marriage, Carolyn Idell Wade Adams, the wife, argues that the trial court erred in refusing to grant her either rehabilitative or permanent alimony, and in refusing to distribute a one-half value of a securities investment account. We reverse in part and affirm in part.

The pertinent facts reflect that the husband and wife were married for 20 years and had two children. During the marriage, the husband obtained a law degree and an advanced degree in taxation, while the wife obtained a bachelor's degree in education and a master's degree in English. At the time of the final judgment, the wife was working as a part-time professor as well as a proof-reader for a law firm. The wife expressed an interest in returning to school to obtain a Ph.D. in the hopes of gaining greater job security and a tenured position at the university level. The husband had been working as a bank trust officer, but was unemployed at the time of trial.

With respect to the alimony issue, rehabilitative alimony is proper in those cases where the receiving spouse can be rehabilitated to a self-supporting financial stature commensurate with the standard established during the marriage. Akers v. Akers, 582 So.2d 1212 (Fla. 1st DCA 1991), review denied 592 So.2d 679 (Fla.1991); Meachum v. Meachum, 580 So.2d 331 (Fla. 2d DCA 1991); Clance v. Clance, 576 So.2d 746 (Fla. 1st DCA 1991); Lash v. Lash, 307 So.2d 241 (Fla. 2d DCA 1975). As stated in O'Neal v. O'Neal, 410 So.2d 1369, 1371 (Fla. 5th DCA 1982) (citations omitted):

A divorced wife is entitled to live in a manner reasonably commensurate with the standard established by the husband during the course of a long-term marriage. A court must base an award of alimony to a wife upon the ability of her husband to pay that award and her financial needs in light of the standard of living she enjoyed during the marriage.

See also Royal v. Royal, 263 So.2d 277 (Fla. 3d DCA 1972) (alimony award to be based upon need, ability, and standards established during the marriage).

Because rehabilitative alimony is premised upon the assumption that the receiving spouse is capable of self-support, in those cases where there is no such capacity, there is nothing to which the receiving spouse can be rehabilitated, and therefore an award of rehabilitative alimony would be inappropriate. Lash v. Lash, 307 So.2d at 243; Schwartz v. Schwartz, 297 So.2d 117, 119 (Fla. 3d DCA 1974); Reback v. Reback, 296 So.2d 541 (Fla. 3d DCA 1974), cert. denied, 312 So.2d 737 (Fla.1975). In the present case, even if the wife were awarded rehabilitative alimony to pursue a higher degree in teaching, no showing has been made that such a rehabilitative plan would enable her to support herself in a reasonable manner commensurate with the standard of living established during the marriage. Accordingly, we find that the trial court correctly denied the wife's request for rehabilitative alimony, ¹ but erred in denying the wife an award of permanent alimony. See Bible v. Bible, 597 So.2d 359 (Fla. 3d DCA 1992); Lanier v. Lanier, 594 So.2d 809 (Fla. 1st DCA 1992); Meachum v. Meachum, 580 So.2d at 333; Akers v. Akers, 582 So.2d at 1219.

In determining whether to award permanent periodic alimony, the two main criteria to be considered are the needs of the spouse requesting the alimony, and the ability of the other spouse to pay. Canakaris v. Canakaris, 382 So.2d 1197 (Fla.1980). Those factors which the trial court must focus upon to determine the need of the requesting spouse include "the parties' earning ability, age, health, education, the duration of the marriage, the standard of living enjoyed during its course, and the value of the parties' estates." Canakaris v. Canakaris, 382 So.2d at 1201. A review of the record reveals that the wife is not capable of maintaining herself or her child in a manner commensurate with the standard of living established during this long term marriage, and that the husband occupies a superior financial position. In light of the wife's needs and the husband's ability to pay, it was an abuse of discretion for the trial judge to deny the wife's request for permanent alimony. See Canakaris v. Canakaris, 382 So.2d at 1197; Akers v. Akers, 582 So.2d at 1218; Teague v. Teague, 551 So.2d 1242 (Fla. 1st DCA 1989), cert....