Hair v. Hair
| Decision Date | 08 July 1981 |
| Docket Number | 80-1400,Nos. 80-773,s. 80-773 |
| Citation | 402 So.2d 1201 |
| Parties | Robert Max HAIR, Appellant/Cross-Appellee, v. Bonnie Peavy HAIR, Appellee/Cross-Appellant. |
| Court | Florida District Court of Appeals |
Tanya M. Plaut, Orlando, for appellant/cross-appellee.
William E. Kuntz, of Smith, Hulsey, Schwalbe & Nichols, Jacksonville, for appellee/cross-appellant.
This is an appeal by the husband and a cross-appeal by the wife from a final judgment of dissolution terminating a nineteen-year marriage. The couple had no children. At the time of dissolution, the parties owned two residences, a condominium and a house, with a total approximate value of $260,000 and encumbered to the extent of some $126,000. The parties had joint debts of some $70,000.
The husband, who holds a degree in dentistry, now derives his income from various businesses and investments, including a controlling interest in Wymodak, Inc. The trial court found his stock interest therein to be worth $405,000. In the year and a half preceding the dissolution, the husband derived an income from Wymodak in the amount of $150,000, which represents an average annual income of $100,000. At the time of dissolution, he had not filed a federal income tax return since 1973, and was facing a potential income tax liability of $250,000. He also owned a 1976 Lincoln Continental and a 1979 Buick Riviera.
The wife, who was thirty-eight years old at the time of dissolution, had an associates degree in general studies and had worked fulltime for no salary in the husband's dental office during the earlier years of the marriage. She also had worked fulltime as a mail clerk for three years while her husband was in dental school, but has not worked in recent years.
The dissolution was bitterly contested. The husband opposed the dissolution, and demanded court-ordered counselling of the parties, which was denied. Ultimately, the trial court found the marriage to be irretrievably broken.
In its final judgment of dissolution, the trial court awarded the wife $1,300 per month rehabilitative alimony for a period of four years. The trial court also awarded the wife as lump-sum alimony the husband's interest in the house and condominium. However, the wife became liable for the total indebtedness on both. The husband was further required to transfer title of the Buick Riviera to the wife and the wife became responsible for all the payments subsequent to the transfer. Each party was permitted to retain his or her personal property, clothing, jewelry, etc. The husband was permitted to retain all his interest in Wymodak, Inc. The husband was made solely responsible for the $70,000 in joint debts. He was also made solely liable for the first $150,000 of liability for the taxes that were not paid during the years of the marriage.
The original final judgment directed the husband to pay the wife's reasonable attorney's fees and costs in an amount to be determined upon subsequent hearing. This provision was modified in that the husband was directed to pay the wife's costs, expenses, and attorney's fees that she was required to expend in connection with her efforts to compel the husband to provide discovery. The court also reserved jurisdiction to determine the wife's right to reasonable attorney's fees and costs for all other aspects of the divorce proceeding. The trial court heard evidence and testimony of the wife's costs and attorney's fees; it thereafter ordered the husband to pay $10,000 towards the wife's attorney's fees and $2,877.92 towards the costs incurred by her. Both parties appeal the final judgment of dissolution.
We find no merit in the issues raised by the appellant husband. First, it was within the sound discretion of the trial court to deny the husband's motion for marriage counselling. See § 61.052, Fla.Stat. (1979). Second, there was competent and credible evidence to support the trial court's finding in regard to the value of the Wymodak stock. Third, it was within the discretion of the trial court in attempting "to do equity and justice between the parties" to order the husband to pay the first $150,000 of tax liability for his previous years of non-filing. See § 61.08, Fla.Stat. (1979); Canakaris v. Canakaris, 382 So.2d 1197 (Fla.1980); Duncan v. Duncan, 379 So.2d 949 (Fla.1980).
On her cross-appeal, the wife contends she should have been awarded permanent periodic alimony instead of rehabilitative alimony for four years. The first question is whether or not determination as to whether periodic alimony should be rehabilitative or permanent is a question of law or a matter of discretion for the trial court. See Canakaris 382 So.2d at 1202. According to the recent case of Wagner v. Wagner, 383 So.2d 987 (Fla. 4th DCA 1980), the characterization of alimony as rehabilitative rather than permanent is a legal question and not a matter of discretion. As authority for this statement, the Fourth District cited Canakaris, but did not specify any particular page or paragraph of that opinion.
In Canakaris, the only discussion of rehabilitative alimony is found in dictum at page 1202 thereof, and reads:
... Although rehabilitative alimony is not at issue in these proceedings, it is necessary to define its purpose in order to distinguish it from permanent periodic alimony. The principle purpose of rehabilitative alimony is to establish the capacity for self support of the receiving spouse, either through the redevelopment of previous skills or provision of the training necessary to develop potential supportive skills. Reback v. Reback, 296 So.2d 541 (Fla.3d DCA 1974). Where appropriate, rehabilitative alimony may be converted to permanent periodic alimony.
In G'Sell v. G'Sell, 390 So.2d 1196 (Fla. 5th DCA 1980), this court, citing Canakaris and Reback, held that where the record was devoid of any evidence as to the wife's potential for rehabilitation (such evidence would be prior education, skills, training, or other evidence of capacity for self support), then the award of rehabilitative, as opposed to permanent, alimony was erroneous as a matter of law. In that case the wife, after a twenty-year marriage and three children, had only a seventh-grade education, and had never in her life been employed. She had no training, was afflicted with health problems, and, essentially, was unemployable. There was no property to be distributed to her; her only source of support was the alimony to be derived from her husband's job income. The trial court's award of two-year rehabilitative alimony was reversed for entry of an award of permanent alimony.
In the instant case, unlike G'Sell, the...
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