Carmel v. Carmel, s. 73--39 and 73--163

• Decision Date: 26 June 1973
• Docket Number: Nos. 73--39 and 73--163,s. 73--39 and 73--163
• Citation: Carmel v. Carmel, 282 So.2d 6 (Fla. App. 1973)
• Parties: Frances CARMEL, Appellant, v. Jack CARMEL, Appellee.
• Court: Florida District Court of Appeals

Page 6

282 So.2d 6

Frances CARMEL, Appellant, v. Jack CARMEL, Appellee.

Nos. 73--39 and 73--163.

District Court of Appeal of Florida, Third District.

June 26, 1973.

Sinclair, Louis, Sand & Siegel, Miami, for appellant.

Levine, Helman & Reckson, Miami, for appellee.

Before CHARLES CARROLL, HENDRY and HAVERFIELD, JJ.

HAVERFIELD, Judge.

This interlocutory appeal is by an exwife (herein referred to as the wife) from a post decretal order granting a petition of the ex-husband (herein referred to as the husband) for modification of a final judgment of divorce.

The parties in this cause were married on June 12, 1963. Although no children were born of this union, appellant-wife has one daughter from a previous marriage and appellee-husband, a widower, has four children. Appellant participated with the appellee in raising his family and shared a social life on a standard and scale to which she had not been heretofore accustomed. On August 5, 1968, the husband and wife were divorced and the appellant-wife was awarded the sum of $1,500 per month permanent alimony. Plaintiff-appellee, Jack Carmel, on March 3, 1972 filed a petition for modification of final judgment of divorce on the grounds that with the enactment of the no-fault divorce law, alimony to the wife is to be rehabilitative and does not have to be permanent and alternatively that Mrs. Carmel is gainfully employed and capable of supporting herself. It was undisputed that appellee's earnings and net worth have continued to increase and appellee admitted that he has the ability to pay the monthly alimony pursuant to the August 1968 divorce judgment. A hearing was held on appellee's modification petition and thereafter the chancellor entered an order modifying the final judgment of divorce. This post decretal order of December 6, 1972 reads in part as follows:

'3. Petitioner also petitions this Court to declare that the Wife's alimony be considered to be rehabilitative in nature as contemplated by F.S.A. 61.08(1). The parties were married approximately five years, and it was a second marriage for both. There were no children born of the marriage. The Final Decree of Divorce clearly indicates the Court's feelings concerning the marital and financial posture of the parties. The Husband has paid over $72,000.00 in alimony payments to the Wife since the rendition of the Final Decree. Testimony demonstrates that the Wife has, in fact, rehabilitated herself and therefore, the Court finds that this is a case that merits application of a finding that alimony should be considered to be rehabilitative . . . Under these circumstances, even though the Divorce Decree was entered prior to the enactment of the 'No-Fault' Divorce Law, nevertheless the theories of the new law are applicable and alimony may be adjustable so as to be rehabilitative in nature . . . Accordingly, the alimony awarded to MRS. CARMEL is decreed to be rehabilitative in nature. It is, therefore 'ORDERED AND ADJUDGED, as follows:

'1. The alimony previously awarded at $1500.00 per month be, and the same is hereby reduced to the sum of $833.33 per month for a period of one (1) year from the date of the entry of this Order.

'2. During the second year from the date of the entry of this Order, the Wife shall receive from the Husband, the sum of $416.66 per month as alimony.

'3. At the end of two (2) years from the date of the entry of this Order, all alimony to the Wife shall cease and the Husband shall thereafter forever be relieved from any further obligation for alimony or support payments to or on behalf of the wife.

'4. All alimony payments provided herein shall be paid monthly, in advance.'

The chancellor below has committed two errors which dictates reversal of his order of December 6, 1972. First, the court incorrectly held that the 'No-Fault' Divorce Law can be applied retroactively and,...