Garces v. Garces, 97-1492
| Decision Date | 07 January 1998 |
| Docket Number | No. 97-1492,97-1492 |
| Citation | 704 So.2d 1106 |
| Parties | 23 Fla. L. Weekly D133 Hernan GARCES, Appellant, v. Marie Clemence GARCES, Appellee. |
| Court | Florida District Court of Appeals |
Simon, Schindler & Sandberg and Theodore R. Dempster, Miami, for appellant.
Frederick C. Sake, Miami Beach, for appellee.
Before NESBITT, JORGENSON and COPE, JJ.
Hernan Garces appeals a final judgment in a dissolution of marriage action. We affirm.
The parties were married for twenty-two years through the date of separation, and twenty-four years through the date of the final judgment. At the time of dissolution, the husband was fifty-six years old and the wife, fifty-four. The husband earns $56,000 per year from full-time employment. The wife earns $35,484 from full-time employment plus $5000 annually from a part-time job.
The trial court awarded permanent periodic alimony of $1,000 per month. The husband contends that since the wife earns a living wage, she is not entitled to permanent alimony at all. This precise argument was rejected in Walter v. Walter, 464 So.2d 538, 539 (Fla.1985) ().
As stated in Canakaris v. Canakaris, 382 So.2d 1197 (Fla.1980):
Permanent periodic alimony is used to provide the needs and the necessities of life to a former spouse as they have been established by the marriage of the parties. The two primary elements to be considered when determining permanent periodic alimony are the needs of one spouse for the funds and the ability of the other spouse to provide the necessary funds. The criteria to be used in establishing this need include the parties' earning ability, age, health, education, the duration of the marriage, the standard of living enjoyed during its course, and the value of the parties' estates.
Id. at 1202. The criteria for alimony have now been codified by the legislation in section 61.08(2), Florida Statutes (1995). 1 While the wife's earning ability is one factor to be considered, it is not by itself dispositive and does not preclude an award of permanent alimony in this long-term marriage where, based on the factors in section 61.08, need is demonstrated and the husband has the ability to pay.
The husband also contends that the amount of permanent alimony is excessive. We disagree. Without attempting to review all of the evidence, during the pendency of the divorce proceedings the husband paid support of $446.50 per month. The wife's testimony was that even with her own income and the support payment, her expenses exceeded the amount available and she incurred additional debt during the two-year pendency of the divorce proceedings.
Further, the trial court found that during almost all of the marriage, both parties held full-time jobs and neither party held an additional part-time job. However, beginning in 1989, the wife took on a part-time job (in addition to the full-time job) in order to increase the family income. The wife was continuing to work two jobs as of the final hearing. The trial court ruled that, considering the age of the wife and the parties' practice during most of the marriage, the permanent alimony award would be based on the assumption that the wife would continue full-time employment, but the wife would not be required to continue part-time employment. It appears reasonably clear that, based on the foregoing considerations, the trial court decided that a permanent alimony award of $1,000 per month was needed and appropriate. The amount is within the wide discretion afforded the trial court by the Canakaris decision.
The husband next challenges the amount and duration of the requirement that he cover the wife's future medical, psychiatric, and psychological counseling expenses which are reasonably required as a result of domestic abuse during the marriage. As we view the final judgment and the record, the trial court believed the wife's testimony that during the marriage, she was beaten four or five times per year. In 1983, she was beaten so badly that she required hospital treatment and reconstructive surgery. As a result, she has permanent facial nerve damage and no feeling on one side of her face. She has temporomandibular joint disorder and gets headaches and her jaw hurts when she chews. The husband admitted the 1983 beating, but denied the others. This conflict in testimony was resolved in favor of the wife.
The wife's expert psychologist testified about the wife's psychological condition as a result of domestic abuse. The psychologist recommended that the wife consult with a psychiatrist at least once monthly and that the wife should have individual therapy twice a week for at least a few years.
The trial court included in the final judgment the following provision:
22. The Husband shall be required to pay any presently outstanding and all reasonable future medical, psychological, psychiatric, counseling and medication expenses for care and treatment required by the Wife as a result of his egregious conduct which are not covered by her medical insurance and for those items which are covered, the Husband shall be responsible for any uncovered portions, including payment of any deductibles.
The husband argues first that there should be a dollar limit on the amount of his liability under this subdivision. He contends that some limitations must be established so as to keep this part of the judgment within his ability to pay. He suggests that if the wife were to decide to undertake daily treatment, for example, the expense would be such that the husband would be unable to pay it.
Both in the trial court and in this court, the wife has reiterated that this paragraph requires reimbursement for the uninsured portion of reasonable and necessary treatment. The wife states that under this provision, "reasonable" means the frequency recommended by the expert psychologist, and that the wife does not seek any...
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