French v. French, s. 82-696

• Decision Date: 05 July 1984
• Docket Number: Nos. 82-696,82-1195,s. 82-696
• Citation: 452 So.2d 647
• Parties: William C. FRENCH, Appellant, v. Kathryn M. FRENCH, Appellee.
• Court: Florida District Court of Appeals

Page 647

452 So.2d 647

William C. FRENCH, Appellant, v. Kathryn M. FRENCH, Appellee.

Nos. 82-696, 82-1195.

District Court of Appeal of Florida Fourth District.

July 5, 1984.

Rehearing Denied Aug. 1, 1984.

Majorie Gadarian Graham of Jones & Foster, P.A., West Palm Beach, for appellant.

Montgomery, Lytal, Reiter, Denney & Searcy, P.A., and Edna L. Caruso, West Palm Beach, for appellee.

HURLEY, Judge.

The former husband appeals from a final judgment of dissolution of marriage and a post-judgment order awarding the former wife costs and attorney fees. We affirm in part and reverse in part.

William and Kathryn French were married for twenty-one years, producing three children, aged fifteen, thirteen and eight. The husband, a stockbroker, earned a gross income of slightly over $100,000 in 1980. The wife, who was forty-two at the time final judgment entered in February, 1982, worked in the fashion industry during the first six to seven years of the marriage, but did not work outside the home after that time. She holds two college degrees and worked for six to eight months as an assistant editor for a magazine prior to the marriage.

The trial court was presented with evidence showing that the husband left the home in May, 1981 and moved onto a boat with a son, then eleven years old. The husband's girlfriend and her two children also moved onto the boat the same day. One month later, the son reported to his mother that he had frequently observed the father and his girlfriend engaged in sexual activities on the boat. The wife then filed for dissolution.

At trial the husband admitted that he and his girlfriend had sexual relations on the boat, but he maintained that with the exception of one incident, he was unaware that the children had observed them. Mr. French further testified that he and his girlfriend took every possible precaution to prevent the children from observing their sexual activities.

Upon receipt of the evidence, the trial court granted the wife;s petition for dissolution, awarded her custody of the three minor children and decreed that the husband was not entitled to any visitation with the children. The court based its denial of visitation on the ground that the husband failed to acknowledge the impropriety of his cohabitation with his girlfriend during the marriage, and appeared insensitive to the pain he caused his children by what they perceived as "a desertion, betrayal and intentional infliction of harm to their mother and themselves."

Additionally, the trial court awarded the wife: (1) full title and ownership in the marital home, valued at $250,000-$290,000, with an equity of $220,000-$260,000, as lump sum alimony; (2) the sum of $2,000 per month for twelve years as rehabilitative alimony; and (3) $2,000 per year as permanent alimony to be deposited by the husband "in an IRA or similar account, to be selected by the wife [which] account shall be in the name of or in trust for the wife at the option of the wife and consistent with IRS regulations," which sum is to be increased to $4,000 in the event the wife becomes employed.

With respect to child support, the final judgment provided that the husband must pay $400 per month per child, as well as "[a]ll medical expenses" and "[a]ll educational expenses, including college up to a bachelor's degree." In a subsequent hearing the court further ordered the husband to pay $12,610.00 for the wife's attorney's fees plus $2,209.26 as costs. It also directed the husband to pay the first installment of the daughter's $4,200 annual tuition bill to a private school in which she was enrolled after final judgment entered.

We begin by considering the trial court's absolute ban on visitation. ¹ The court, with commendable candor, set forth its rationale in a letter to the parties' trial counsel. It stated in pertinent part:

These children have been extremely hurt and disillusioned by what they perceive to be a desertion, betrayal and intentional infliction of harm to their mother and themselves. I do not know whether they ever will be willing and able to resume a proper relationship with their father. For their sake I hope so, but so long as Mr. French continues to appear completely insensitive to the hurt he has caused them, I do not think he will ever regain their confidence and respect.

... I do not believe Mr. French deliberately engaged in sexual acts in front of the children. I do, however, believe that he was more careless than he thinks he was, but even this is not what concerns me and, I think, the children the most. Children, no matter how smart and mature, are still children rather than adults. They react to things on very basic levels. The basic level here is that they perceive that their father does not care about the feelings of their mother and themselves. I hope Mr. French can comprehend this so that visitation and a proper relationship can someday be resumed.

It is important to note that the trial court did not base its decision prohibiting visitation on a finding of intentional or grossly negligent conduct with respect to the father's sexual activity. Rather, the court focused on the father's failure to acknowledge the impropriety of his extramarital affair and his seeming insensitivity to the emotional pain which it caused the wife and children. Emotional distress exists to some degree in virtually every dissolution and is not a factor which will justify a complete ban on child visitation. Indeed, visitation is essential to allay such feelings and to reinforce the parent-child relationship. Under Florida law, a parent may not be deprived of the right to visit his child merely because he has engaged in conduct which a trial court deems morally reprehensible or otherwise objectionable. A restriction against visitation may stand only if supported by competent substantial evidence showing that the alleged misconduct will have an adverse effect on the morals or welfare of the children. Yandell v. Yandell, 39 So.2d 554 (Fla.1949); Trylko v. Trylko, 392 So.2d 1034 (Fla. 2d DCA 1981).

We are cognizant of the psychological harm which can result from children observing a parent engaged in sexual intercourse. Had the trial court found that such occurred in the case at bar due to intentional conduct or gross negligence on the part of the father, our evaluation of the visitation ban would be different. But, as indicated, the court relied on other factors which do not support a total ban. See Claughton v. Claughton, 344 So.2d 944 (Fla. 3d DCA 1977). Accordingly, the ban must be lifted. However, in light of the concern and sensitivity which the trial court brought to this case, we are confident that the court will exercise its discretion to fashion appropriate limitations for visitation to safeguard the interests of all parties.

Next, we turn to the husband's contention that the trial court erred by awarding the wife $2,000 per month for twelve years as rehabilitative alimony. The husband argues that the wife does not need twelve years to acquire employment skills in view of the fact that she has two college degrees and seven years of work experience in the fashion industry. We find that the award does not constitute an abuse of discretion given the substantial income of the husband, the duration of the marriage, and the wife's limited work experience. See Kuvin v. Kuvin, 442 So.2d 203 (Fla.1983).

The next error urged on appeal questions the propriety of the permanent periodic alimony award, pursuant to which the husband was directed to deposit $2,000 per year "in an IRA or similar account, to be selected by the wife.... and consistent with IRS regulations." The husband argues that the IRS provision in the judgment should be stricken because the wife did not request establishment of an IRA account, citing Hernandez v. Hernandez, 444 So.2d 35 (Fla. 3d DCA 1983), and because federal law limits an IRA contribution to $2,000 per working person and makes no provision for establishing an IRA for an unemployed person. He argues that he would be subject to a cumulative penalty tax on the contribution if he were to establish an IRA account for the unemployed wife.

We are not persuaded by either of those contentions. First, the wife did seek permanent alimony and thus the award was proper even though the specific form awarded was not requested. Second, we reject the husband's challenge to the legality of the IRA provision because the final judgment expressly states that a "similar account to be selected by the wife" may be established in lieu of an IRA account. The terms of the IRA provision are sufficiently flexible to permit substantial compliance without violation of federal law. Accordingly, we find it unnecessary to remand for modification. The trial judge obviously contemplated the creation of some type of pension fund as permanent periodic alimony. In our view, the trial court acted within its discretion by making such an award, given the length of the marriage and the sharp disparity in the income and earning capacity of the parties. See Kuvin, supra; Canakaris v. Canakaris, 382 So.2d 1197, 1201-02 (Fla.1980); cf. Tate v. Tate, 432 So.2d 601 (Fla. 4th DCA 1983); Vandergriff v. Vandergriff, 438 So.2d 452 (Fla. 1st DCA 1983).

The husband further alleges error in the award of all medical and dental expenses for the wife and children. We agree, and reverse with directions that the trial court limit the award to payment of unusual, major medical expenses. See Bosem v. Bosem, 279 So.2d 863 (Fla.1973); Klein v. Klein, 413 So.2d 1297 (Fla. 4th DCA 1982). In addition, we strike that provision of the final judgment ordering the husband to pay college tuition for the children, because a trial court has no authority to require a parent to provide a college education for his children. Grapin v. Grapin, 450 So.2d 853 (Fla.1984); Klein, supra; Genoe v. Genoe, 373 So.2d 940 (Fla. 4th DCA 1979). We also strike the provision ordering the husband to pay...