Goldstein v. Goldstein, 74--674

• Decision Date: 18 March 1975
• Docket Number: No. 74--674,74--674
• Citation: 310 So.2d 361
• Parties: Sherry C. GOLDSTEIN, Appellant, v. Robert S. GOLDSTEIN, Appellee.
• Court: Florida District Court of Appeals

Page 361

310 So.2d 361

Sherry C. GOLDSTEIN, Appellant, v. Robert S. GOLDSTEIN, Appellee.

No. 74--674.

District Court of Appeal of Florida, Third District.

March 18, 1975.

Rehearing Denied April 16, 1975.

Miller & Podell, Miami Beach, for appellant.

Podhurst, Orseck & Parks, Marx & Squitero, Miami, for appellee.

Before HENDRY and HAVERFIELD, JJ., and CHARLES CARROLL (Ret.), Associate Judge.

PER CURIAM.

The appellant Sherry C. Goldstein, the petitioner in an action for dissolution of marriage, appeals from the final judgment, seeking reversal of certain of its provisions.

The parties were married in 1959. A child of the marriage, a daughter, was born in 1966. The parties separated in August of 1971. In November of that year the wife filed a petition for dissolution of marriage, which was granted by the judgment entered on January 22, 1974. The wife was awarded custody of the child. The husband was ordered to pay $75.00 per week for child support, and to pay rehabilitative alimony of $100.00 per week for a period of two years. In addition, the wife was awarded $4,500.00 lump sum alimony, and was held to own a one-half interest (amounting to $11,763.00) in certain listed assets. As stated in the judgment, that interest of the wife with the lump sum alimony would 'result in the wife receiving cash or securities worth approximately $16,263.33'. The other assets of the husband, as listed in the judgment, including securities valued at approximately $50,000.00 in a stock brokerage account, were held to be the property of the husband. He was required to maintain a $20,000.00 insurance policy on his life for the benefit of the child, and to furnish major medical plan insurance for her.

The wife's appeal centers on four contentions of error, first that the awards of alimony and for child support were inadequate; second that it was an abuse of discretion to limit the payment of alimony to two years; third that the court erred by failing to find the wife was entitled to a one-half interest in a jointly owned savings certificate of $13,200.00 (which the husband took over two months after the commencement of the action); and fourth that the holding of the court which denied to the wife a one-half interest in the securities held in the brokerage account was contrary to the evidence and was not in accordance with the applicable law.

On consideration of the record and briefs we hold (1) that no abuse of discretion has been shown as to the amounts of the payments required to be made by the husband for alimony and child support; (2) that in the circumstances of this case it was inappropriate and therefore error to make the award of periodic alimony rehabilitative in nature, and limited to two years; (3) that the ruling of the court with reference to the above-mentioned savings certificate has not been shown to be erroneous; and (4) we find merit in the wife's contention that it was error to deny her a one-half interest in the assets or equity of the parties in the above-mentioned stock brokerage account.

The determination of amounts to be paid for alimony and child support are largely within the judicial discretion of the trial court, and the party complaining thereof has the burden to demonstrate an abuse of discretion in that regard. We hold no such abuse of discretion has been shown.

The record did not furnish basis to make the periodic alimony rehabilitative in nature. The accompanying lump sum alimony award was not in such amount as to justify a provision for the periodic installment alimony to terminate in two years. It was not made to appear that the wife had training, skills or ability to enable her to be self supporting, and there was no reasonable basis to conclude she would become so within two years. In addition there was the need for her to care for the child, still of tender years (Slimer v. Slimer, Fla.App.1959, 112 So.2d 581).

At the time of the judgment the wife was 36 years of age. She had attended high school and two years of college, but had no business experience or training or skills which would enable her to be self supporting. She had never been employed, except for having done part time modeling for a short period (twice a week for approximately six months immediately after the marriage, when she was 21 years of age). When the judgment was entered the wife, who is 5 4 in height and whose normal weight was 90 pounds, weighed between 70 and 75 pounds. Her condition of health was not good, although according to medical evidence presented she was not suffering from any ailments from which recovery could not be expected. The husband's financial ability to pay the alimony was established. The court found he had assets of $100,000.00, and an annual salary income of $35,000.

On the facts shown, permanent rather than rehabilitative alimony should have been granted. See Schwarb v. Schwarb, Fla.App.1972, 259 So.2d 745; Wilson v. Wilson, Fla.App.1973, 279 So.2d 893; Osman v. Osman, Fla.App.1973, 280 So.2d 67; Dash v. Dash, Fla.App.1973, 284 So.2d 407; and the following decisions applicable to this case, which were not available to the trial court because they were decided after the date of the judgment: Reback v. Reback, Fla.App.1974, 296 So.2d 541; Schwartz v. Schwartz, Fla.App.1974, 297 So.2d 117; Kalmutz v. Kalmutz, Fla.App.1974, 299 So.2d 30.

In Reback v. Reback, supra, speaking through Judge Pearson this court said:

'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 or redevelop a capacity for self-support, * * *' In Schwarb v. Schwarb, supra, in reversing a grant of rehabilitative alimony by monthly payments for one year, the court stated, 'We have examined the evidence adduced before the chancellor and find insufficient evidence from which the chancellor could reasonably conclude that the need of the plaintiff wife for the alimony payments * * * would, or were likely to terminate on or about January 15, 1972'.

In Wilson v. Wilson, supra, the court said:

'Under the circumstances here reflected where the wife performed household functions for twenty-three years, is ill, and sincerely has no earning ability or promise of same, we feel she should be awarded permanent periodic alimony commensurate with her needs and the husband's ability to pay. Sharpe v. Sharpe, Fla.App.1972, 267 So.2d 665 and Slimer v. Slimer, Fla.App.1959, 112 So.2d 581. Nil prospects to the contrary notwithstanding, if she should somehow blossom into a financially productive member of society and other material change occur, the husband can obtain a trial court review of the award and relief. Section 61.14, F.S.1971, F.S.A.'

In Schwartz v. Schwartz, supra, where the facts respecting the status of the wife were almost identical to those shown in the instant case, this court reversed an award of rehabilitative alimony and directed that permanent alimony be awarded. The similarity of the cases in this connection is shown by the following in the opinion in Schwartz, viz:

'When the parties were married in 1957, the appellant was 19 years of age, and she was 36 years old at the time of the judgment. Her schooling was not extensive. She is not equipped by training, experience or otherwise to support herself. Her only employment consisted of approximately two weeks as a receptionist in a doctor's office, sometime prior to her marriage. Therefore, there is nothing to which the wife can be rehabilitated. If, after some period of time, she should acquire or become possessed of the ability to support herself to an extent which should relieve the husband of his obligation in that respect in whole or in part, that would constitute a change of circumstances for which the...