Anderson v. Anderson
|07 May 1993
|Florida District Court of Appeals
|18 Fla. L. Week. D1183 Deanna Joyce ANDERSON, Appellant, v. Ray Alfred ANDERSON, Appellee.
Raymond E. Makowski, Jacksonville, for appellant.
Marlin M. Feagle, Lake City, for appellee.
Wife, Deanna Joyce Anderson, appeals from a final judgment of dissolution of marriage. The husband, Ray Alfred Anderson, files a cross appeal. Both parties raise several issues on appeal. We find that the only issue which has any merit and will be discussed herein is wife's assertion that the trial court erred in determining the amount and type of alimony due to the wife.
In her petition for dissolution of marriage the wife alleged that she was in need of both rehabilitative and permanent alimony. The husband denied she needed any support. At trial the wife contended that only permanent alimony would satisfy her support needs. The husband, while conceding Deanna Anderson and Ray Anderson were married in Tennessee in 1968 while the husband was in the navy. Two children were born of the marriage: Raymond in 1969, and Bradley in 1974.
some support was needed by the wife, contended that only rehabilitative support was required. The trial judge awarded 23 years of alimony, most of which terminated at the end of 5 years. The award does not equate to permanent alimony and does not conform to any actual or implied basis for rehabilitative alimony that we can discern from the record.
The husband was attending college at the time of the marriage. He graduated with a bachelor of science degree in physical therapy in 1972. While he was in college, the wife worked as a secretary, helping with living expenses. College costs were paid by various grants, the GI Bill, and an inheritance received from the husband's father.
The husband worked in various jobs during the marriage. The wife testified that they were required to make at least eight major moves during the marriage as a result of the husband's employment. In 1976, the family moved to Lake City, Florida, where the husband obtained a job as a physical therapist. With the exception of a brief move back to Tennessee in 1979, the husband worked in Lake City until 1988. At that time, the family moved to South Carolina where the husband obtained a job as a health care administrator. In March 1989, the parties separated and the wife and the youngest son moved to Memphis. The wife began training for a position as a flight attendant, but before she completed the six-week training course, the parties reconciled and moved back to Lake City where the husband obtained a job as a clinical administrator. In July 1990, the husband moved to Atlanta for his present job with Healthfocus. He earns a base salary of approximately $4,700 per month, and periodically receives nonguaranteed incentive bonuses from his employer. 1 The husband testified that his actual income for 1989 was $91,000, for 1990 it was almost $77,000, and for the first six or seven months of 1991, it was $45,933. 2
In contrast, the wife, who is 44 years of age, works in a part-time position for 24 hours a week at $5.00 an hour. She testified that this is the best position she could acquire in Lake City after looking for a job for approximately one year. The record reflects that the wife worked sporadically during the marriage because she shouldered the child care responsibilities and because of the many moves necessitated by the husband's employment. Each job the wife held during the marriage was a secretarial position at or near minimum wage. While the wife indicated that she was only three hours short of an AA degree and would like to go back to school, she also indicated that she had no particular training or experience which would allow her to get a better job.
The only testimony concerning wife's potential for rehabilitation included the following excerpt:
ON DIRECT EXAMINATION OF THE WIFE
Q. Do you have any particular training or experience that would enable you to get a job better than minimum wage?
Q. How old was Mr. Anderson when you started working and supporting him to go to school?
A. Twenty, he was middle twenties.
Q. Mrs. Anderson, how old are you right now?
Q. Do you think at forty-four years of age that there's any possibility that you can start some sort of professional training course and get yourself in a position where you could make $45,000 or $50,000 a year?
A. No, sir.
Q. Is there any prospect in your future that by going to school at forty-four years old you can get in on the ground floor and rise to the top of any profession?
A. Very slim.
. . . . .
Q. Okay. Now, as to your education, you don't have a four-year college degree, I understand. Is that correct?
Q. You do almost have your--enough hours to get your Associate of Arts Degree, do you not?
A. I do.
Q. Where are you taking classes in pursuance of your AA degree? Has that been just here?
A. Mainly here.
Q. And you need about three more credit hours until you have your AA degree?
Q. What are your plans with regard to your future education? Do you plan to go on to a four-year school?
A. I'm unclear about my future plans, but I do want that to be left open as an option.
Q. Okay. Would it be fair to say that you--your plans would include either working or continuing with your education, one or the other?
The wife submitted a financial affidavit indicating that her financial needs were $1,700 per month. Testimony at trial, however, indicated that this affidavit underestimated her actual needs, and did not reflect the standard of living established during the marriage.
On August 22, 1991, the court entered a final judgment awarding the wife child support in the amount of $750 per month until Bradley, the minor son, graduates from high school and reaches 18 years of age; rehabilitative alimony in the amount of $1,500 per month until October 1995; support alimony in the amount of $500 per month beginning in October 1995 for 18 additional years. The order also distributed certain property of the parties. 3
On November 20, 1991, the court entered an order on motion for rehearing, modifying the final judgment to require husband to pay $1,000 per month rehabilitative alimony beginning November 26, 1991, until September 26, 1992; $1,750 per month rehabilitative alimony beginning October 26, 1992 until August 26, 1994; $500 per month support alimony beginning October 16, 1995 and continuing for 18 years or until the wife remarries.
In the final judgment, the trial court found as follows:
The Wife is presently working at Lake Shore Hospital earning approximately $5.00 per hour and testified she intends to complete her college education which will require approximately three years. Upon completion of [wife's] college education the parties' minor child will have reached majority age and the Wife will be capable of supporting herself in substantially the same standard of living enjoyed by her during the parties' marriage. The Wife's financial affidavit indicates that with the minor child living at home she requires approximately $1,700.00 to $2,250.00 per month living expenses.
Other than the previously recited testimony of the wife that she did not want to foreclose the possibility of continuing her college education, we find nothing in the record to support the trial judge's conclusion that the wife would complete college and be in a position to support herself in "substantially the same standard of living enjoyed by her during the party's marriage." There is nothing in this record to indicate where the wife would like to attend college, the cost of her education, her proposed area of study, any job market for such an education, or how long it would take the wife to achieve the necessary income level. It might reasonably be inferred that the nature of the support award contemplated payment for college education, but the basis for such award is not supported anywhere in the record.
This record clearly supports the need for permanent alimony. It is clear that the parties and the trial judge were conscious of the prospect of rehabilitation for the former wife. As we have said before, there is "no error in combining permanent and rehabilitative alimony, provided there is a factual basis and purpose for each." Evans v. Evans, 507 So.2d 1130, 1131 (Fla. 1st DCA 1987).
We set aside the entire award of support for the former wife, and remand the case to the trial judge to conduct such proceedings as may be necessary to fashion a proper support award for the former wife. In all other respects, the judgment is AFFIRMED.
The majority opinion recognizes that the evidence which was presented was totally insufficient to support an award of rehabilitative alimony. The majority, however, invites the trial judge to revisit the entire support award to the wife, and specifically states that "there is no error in combining permanent and rehabilitative alimony, provided there is a factual basis and purpose for each." The opinion of this court, however, should not be viewed as providing broad authority to revisit the issue of rehabilitative alimony as such an interpretation would conflict with many prior decisions of this court. I believe that the trial judge has limited discretion to revisit the rehabilitative alimony issue. This discretion should only be exercised if further evidence adduced on the issue of permanent support indicates that justice would require a more complete development of the rights of the parties as to temporary support. If this case did not involve the equitable jurisdiction of the court, no such consideration would be allowed.
In Apalachicola Northern R.R. Co. v. Tyus, 114 So.2d 33 (Fla. 1st DCA 1959), reversed on other grounds, 130 So.2d 580 (...
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