Campbell v. Campbell, 82-233

• Decision Date: 02 June 1983
• Docket Number: No. 82-233,82-233
• Parties: Gary W. CAMPBELL, Appellant/Cross Appellee, v. Chalermsri V. CAMPBELL, Appellee/Cross Appellant.
• Court: Florida District Court of Appeals

Page 666

432 So.2d 666

Gary W. CAMPBELL, Appellant/Cross Appellee, v. Chalermsri V. CAMPBELL, Appellee/Cross Appellant.

No. 82-233.

District Court of Appeal of Florida Fifth District.

June 2, 1983.

Lawrence W. Solodky of Law Office of Marvin E. Newman, Orlando, for appellant/cross appellee.

Addison E. Walker, St. Cloud, for appellee/cross appellant.

ORFINGER, Chief Judge.

In this appeal from a final judgment of dissolution of marriage, the former husband contends that the trial court erred in awarding the former wife permanent periodic alimony of $200 per month, child support of $275 per month and $400 towards the wife's attorney's fees.

In awarding the wife child support and a portion of her attorney's fees, the trial court acted well within its discretion and we will not disturb that decision. Canakaris v. Canakaris, 382 So.2d 1197 (Fla.1980). We hold, however, that the award of permanent periodic alimony is error under the evidence presented here so we reverse that award with directions to award rehabilitative alimony for such period as the trial court may deem proper.

The parties were married in Thailand in October, 1972, while the husband was stationed there in the military service. The wife is a Thai native. The ten-year marriage produced one daughter, who was approximately eight years old when the final judgment of dissolution was entered. When the parties met in Thailand, the wife was working for the United States Army as a file clerk. For the first five years of the marriage she did not work, but during the last five years she was employed as a clerk/typist for a food store, although she later requested a change of position to cook so that she could spend more time with her child. The thirty-four year old former wife speaks adequate, although not excellent, English. She speaks her native language fluently, and is also able to speak some Japanese and some French. She had three years of "college" education in Thailand, and although the record indicates that this is not the same as a college education here, it did prepare her for the type of work she did for the Army. During the marriage, the wife handled all of the family's finances. The husband is a deputy sheriff whose take-home pay is approximately $1100 per month. The wife's net earnings from her job were approximately $540 per month. Her voluntary change of positions did not materially affect her earnings.

It was in this posture that the trial court awarded the wife $200 in permanent periodic alimony, custody of the child and child support, attorney's fees and exclusive occupancy of the marital home during the minority of the child. The custody is not appealed, nor is the award of exclusive possession. As earlier indicated, we address only the question of the award of permanent periodic alimony. The husband contends that the award is too high, but also argues that if any alimony is justified, it should be rehabilitative and not permanent.

Rehabilitative alimony is best defined by reviewing its nature and purpose. In Reback v. Reback, 296 So.2d 541 (Fla. 3d DCA 1974), the court looked to the dictionary definition of the word "rehabilitative" and found that:

The dictionary definition of the word "rehabilitate" is to "restore to a former capacity ... to put on a proper basis or into a previous good state again." This word, when applied descriptively to alimony to which a husband or wife may be entitled, assumes necessarily either a previous potential or actual capacity for self-support in the person seeking alimony which has been undeveloped or completely lost during the marriage. The ordinary definition indicates that "rehabilitative" alimony is appropriate in those situations where it is possible for the person to develop anew of (sic) redevelop a capacity for self-support, and should be limited in amount and duration to what is necessary to maintain that person through his training or education, or until he or she obtains employment or otherwise becomes self-supporting. (emphasis supplied).

Id. at 543. The Supreme Court approved this definition in Canakaris, 382 So.2d at 1203.

In Kirchman v. Kirchman, 389 So.2d 327 (Fla. 5th DCA 1980), this court described rehabilitative alimony as that coming from a financially able spouse to a needy spouse "to assist the needy [one] in adjusting to a new life and to aid in obtaining new skills, education and/or other rehabilitation." We described it as the type of support whose purpose was often to assist the spouse in obtaining a skill and a return to the marketplace.

In G'Sell v. G'Sell, 390 So.2d 1196 (Fla. 5th DCA 1980), we held that the principal purpose of rehabilitative alimony is to establish the capacity for self-support of the receiving spouse, either through the redevelopment of previous skills or through providing the training necessary to develop potential supportive skills. Although the facts in G'Sell militated against the award of rehabilitative alimony, its definition and purpose are useful here. By contrast, in Hair v. Hair, 402 So.2d 1201 (Fla. 5th DCA 1981), we recognized the distinctive characteristics of rehabilitative alimony and of permanent alimony as set forth in G'Sell, but held that the facts of that case supported the award of rehabilitative alimony, not permanent.

Among the considerations which enter into the determination of whether alimony is to be awarded and, if so, the nature and amount thereof, are the age and earning ability of the parties, their health and education, the duration of the marriage, the standard of living enjoyed by them during the marriage and their estate. Canakaris, supra; O'Neal v. O'Neal, 410 So.2d 1369 (Fla. 5th DCA 1982). However, under current law, if the former wife has the capacity to make her own way unassisted by her former husband, then courts cannot require the husband to pay alimony other than for rehabilitative purposes. Crees v. Crees, 342 So.2d 1014 (Fla. 4th DCA 1977); Roberts v. Roberts, 283 So.2d 396 (Fla. 1st DCA 1973). Thus, each...