Cann v. Cann
| Citation | 334 So.2d 325 |
| Decision Date | 30 June 1976 |
| Docket Number | No. Z--254,Z--254 |
| Parties | Tedford J. CANN, Appellant, v. Margery M. CANN, Appellee. |
| Court | Court of Appeal of Florida (US) |
Roy M. Kinsey, Jr., of Kinsey, Troxel & Mann, Pensacola, for appellant.
G. Robert Barron of Smith, Grimsley, Barron & Remington, Fort Walton Beach, for appellee.
The final judgment entered in the dissolution of marriage action from whence this appeal is taken required the husband, appellant here, to pay alimony the amount of which is not in controversy. The sole issue is whether the alimony should be permanent or rehabilitative.
The final judgment required payment of alimony at the rate of $450.00 per month for a period of 12 months 'at which time said alimony shall decrease to the sum of $400.00 per month and shall continue until further order of this Court.' It is unclear as to whether the alimony was intended by the learned trial judge as rehabilitative or permanent. Were there no other relevant language in the final judgment, we would be inclined to the view that the concluding words 'until further order of this court' were intended to provide a temporary or terminable alimony award; viz: rehabilitative. However, the next paragraph in the final judgment concludes with the words: 'In addition, in the event of respondent's death while he is required to make alimony or child support payments under this Order, his estate shall be charged with the liability of such payments.' We are of the view that the imposition of liability upon appellant's estate for the payment of the periodic alimony payments requires the construction that the alimony was intended to be permanent as distinguished from rehabilitative. We are therefore presented squarely with the issue as to whether, under the facts of this case, the alimony should have been rehabilitative rather than permanent. The distinction is not without a difference.
Lump sum alimony, sometimes known as alimony in gross, is essentially payment of a definite sum and is in the nature of a final property settlement. Hence, an award of lump sum alimony creates a vested right which survives death (Morris v. Morris, Fla.App.2nd 1973, 272 So.2d 202) and is not modifiable nor terminable upon the divorced wife's remarriage (Horne v. Horne, Fla.App.2nd 1974, 289 So.2d 39). Lump sum alimony may consist not only of money, but also or in lieu thereof, real or personal property, such as a marital home. (Vandervoort v. Vandervoort, Fla.App.3rd 1974, 300 So.2d 694.) Regardless of what form it takes, * * *' (Calligarich v. Calligarich, Fla.App.4th 1971, 256 So.2d 60, 61).
Although lump sum alimony is distinguished from periodic alimony, lump sum alimony may be paid in installments. (Morris v. Morris, supra) However, in order for it to be categorized as lump sum, it must be for a definite amount and must have some reasonable relationship to the estate of the person upon which it is imposed. (Horne v. Horne, supra; Keller v. Keller, Sup.Ct.Fla.1974, 308 So.2d 106) A further element of lump sum alimony is that it be awarded only where special equities require it or make it advisable. (Jones v. Jones, Fla.App.1st 1976, 330 So.2d 536). The requirement that lump sum alimony be based upon special equities must not be confused with an award in a dissolution of marriage action to a spouse who has acquired a special equity in property accumulated during the marriage. Such an award is not alimony. (Eakin v. Eakin, Sup.Ct.Fla.1958, 99 So.2d 854)
Periodic alimony is an allowance payable at intermittent times (usually by the week or by the month) in a definite amount over a definite or indefinite period of time. An award of periodic alimony is appropriate according to the needs of the spouse requesting alimony and the corresponding ability of the other spouse to pay.
Periodic alimony may be either permanent or rehabilitative. Rehabilitative alimony has been defined as 'that amount of money or other things of value reasonably necessary to supplement means already available reasonably required during the post-marriage period to maintain the recipient until he or she is, in the exercise of reasonable efforts and endeavors, in a position of self-support.' It has also been defined to mean 'alimony paid for the purpose of rehabilitating the spouse to whom it is awarded, such as, financially supporting an ill spouse until health is restored, or financially supporting a spouse until he or she can be trained for employment, or in some circumstances, until the spouse has a reasonable time to recover from the trauma of the dissolution.' (Sisson v. Sisson, Fla.App.1st 1975, 311 So.2d 799 and cases therein cited) Although initially fixed for a specific period, an award of rehabilitative alimony may be either terminated at an earlier date or extended, depending upon a proper showing that the spouse has become rehabilitated earlier than anticipated or has not become rehabilitated through no fault of his or her own. (Lee v. Lee, Fla.App.2nd 1975, 309 So.2d 26)
Permanent alimony, on the other hand, is an allowance for the support and maintenance of a spouse during his or her lifetime. Its purpose is to provide nourishment, sustenance and the necessities of life to a former spouse who has neither the resources nor ability to be self-sustaining. (Lefler v. Lefler, Fla.App.4th 1972, 264 So.2d 112) However, 'permanent' does not necessarily mean 'forever'. (Ruhnau v. Ruhnau, Fla.App.1st 1974, 299 So.2d 61)
A significant distinction between rehabilitiative alimony and permanent alimony relates to the manner by which it may be terminated. Rehabilitative alimony automatically terminates by expiration of the period fixed in the final judgment or by such subsequent order as may modify the period. (Lee v. Lee, supra) Rehabilitative alimony presupposes the capacity for self-support. (Yohem v. Yohem, Fla.App.4th 1975, 324 So.2d 160) If the spouse to whom the order of rehabilitative alimony was made can demonstrate a diminished capacity for self-support, then (everything else being equal) a petition for modification should be granted. In contrast, permanent alimony may be terminated only upon proof of a substantial change in circumstances. (Kalmutz v. Kalmutz, Fla.App.4th 1974, 299 So.2d 30) Remarriage of the party receiving permanent alimony is such a substantial change in circumstances and requires termination of the payments upon proper application to the trial court. (Friedman v. Schneider, Sup.Ct.Fla.1951, 52 So.2d 420). Remarriage of the recipient also, of course, requires...
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Owens v. Owens, 88-1281
...has stated, in dictum, that remarriage of a recipient spouse would require termination of rehabilitative alimony, citing Cann v. Cann, 334 So.2d 325 (Fla. 1st DCA 1976). However, the appellant correctly observes that this court, in a later decision, held that the statement made in Cann that......
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Mann v. Comm'r of Internal Revenue , Docket No. 1595-77.
...award. Furthermore, lump-sum alimony may be awarded “only where special equities require it or make it advisable.” Cann v. Cann, 334 So. 2d 325, 328 (Fla. Dist. App. 1976). See also Storer v. Storer, 353 So. 2d 152 (Fla. Dist. Ct. App. 1977), rehearing denied Jan. 5, 1978. The requirement t......
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...right to the lump sum award. Storer v. Storer, 353 So.2d 152 (Fla.3d DCA 1977), cert. denied, 360 So.2d 1250 (Fla.1978); Cann v. Cann, 334 So.2d 325 (Fla.1st DCA 1976), and cases cited.4 See note 1, supra.5 The trial judge required the wife to pay a $25,000 fee to her first attorney. Cf. St......
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