Holland v. Holland

• Court: Florida District Court of Appeals
• Writing for the Court: FRANK D. UPCHURCH, Jr.; SHARP; COWART; COWART
• Citation: Holland v. Holland, 406 So.2d 496 (Fla. App. 1981)
• Decision Date: 28 October 1981
• Docket Number: No. 80-860,80-860
• Parties: Joan Claire Egan HOLLAND, Appellant, v. Eugene William HOLLAND, Appellee.

Page 496

406 So.2d 496

Joan Claire Egan HOLLAND, Appellant, v. Eugene William HOLLAND, Appellee.

No. 80-860.

District Court of Appeal of Florida, Fifth District.

Oct. 28, 1981.

Rehearing Denied Dec. 7, 1981.

James F. Spindler, Jr., Crystal River, for appellant.

Wayne L. Rubinas of Pattillo, MacKay & McKeever, P. A., Ocala, for appellee.

FRANK D. UPCHURCH, Jr., Judge.

This is an appeal from a final judgment of dissolution of marriage. In her petition for dissolution, appellant/wife asked the court to make a determination of the property rights of the parties. Apparently, appellant's only major asset was her joint ownership of the parties' condominium, the rest of the property being titled solely in the name of the appellee/husband.

In response, the husband contended that all property rights had been determined by the parties' antenuptial agreement. The wife, however, argued that the agreement was void because it was improperly executed and the husband had failed to make a full disclosure of his assets. In resolving the issue of the agreement's validity, the trial court did not make findings of fact but stated simply, "The court considered the pre-nuptial agreement in the making of this award, and has given it the weight it deserved."

The antenuptial agreement provided as follows:

1. That the proposed marriage shall not constitute a revocation of any wills or codicils heretofore made by either of the parties hereto and any such wills which may have been made by the parties to this agreement shall continue in full force and effect notwithstanding the proposed marriage until altered, revoked or amended according to law.

2. Each of the parties hereto does hereby agree that he or she will make no claim against the estate of the other and each party hereto relinquishes any rights which he or she may have in the estate of the other either by intestacy, right of election or otherwise.

The agreement further stated that:

It is the intention of this instrument that the rights of each of the parties hereto to obtain, hold and dispose of real, personal and intangible property shall be the same as if each of the parties hereto had remained unmarried.

The court ordered that all property held in joint names remain as joint ownership and that all property in each individual name follow the title with no claim of the other party being recognized. This division seems to effectuate the intention of the agreement that the parties hold and dispose of property as though each had remained unmarried. Even though the final judgment appears to enforce the antenuptial agreement, we have concluded that the result would have been the same whether the agreement was valid or invalid.

Under our present laws, both the husband and wife are entitled to control and manage his or her separate property without joinder or consent of the spouse ¹ in all respects as if the parties were unmarried. See § 708.08, Florida Statutes (1979), providing for the right of married women to hold separate property. Property titled solely in the husband's name or in the wife's name remains unaffected by a dissolution of marriage unless awarded to the other spouse as lump sum alimony. See Harder v. Harder, 264 So.2d 476 (Fla.3d DCA 1972). Property held as tenants by the entirety is converted to a tenancy in common upon dissolution. § 689.15, Fla.Stat. (1979).

In the present case, the judgment merely followed the law. The parties' condominium formerly held as a tenancy by the entirety was converted to a tenancy in common. Property titled solely in the husband's name remained his separate property after the dissolution. Thus, regardless of the validity of the antenuptial agreement, the property disposition in the final judgment was proper. ²

The second question, whether the court's granting of four years of rehabilitative alimony was an abuse of discretion, is more difficult.

For an award of rehabilitative alimony to be proper, the evidence must show a potential or actual capacity for self-support. See Wagner v. Wagner, 383 So.2d 987 (Fla. 4th DCA 1980); Yohem v. Yohem, 324 So.2d 160 (Fla. 4th DCA 1975); Schwartz v. Schwartz, 297 So.2d 117 (Fla. 2d DCA 1974); Reback v. Reback, 296 So.2d 541 (Fla. 3d DCA 1974).

The wife is forty-three years old and has a tenth grade education. Her only employment was as a telegram clerk prior to her marriage sixteen years ago. She possesses no marketable skills or talents. She is generally in good health but occasionally suffers lower back problems requiring medical care. She also has poor circulation in her legs which prevents her from standing for long periods. She also has the care and custody of the parties' eleven year old daughter. There was no showing of any potential or actual capacity for self-support. Therefore, we conclude that it was error for the court to have awarded rehabilitative rather than permanent alimony. See Colucci v. Colucci, 392 So.2d 577 (Fla. 3d DCA 1981), G'Sell v. G'Sell, 390 So.2d 1196 (Fla. 5th DCA 1980) and Garrison v. Garrison, 380 So.2d 473 (Fla. 4th DCA 1980).

The disparity between the financial situation of appellant and appellee is marked. Appellant's estate consists almost entirely of her interest in the jointly owned home and her personal effects. In contrast, appellee has a substantial estate. According to his financial affidavit submitted for the dissolution proceedings, he has an estate valued at nearly one-half million dollars. A financial statement in support of a loan application one year earlier suggests that his estate may approach one million dollars in value. While we recognize an understandable tendency to exaggerate one's assets when securing a loan and to minimize them when involved in a marital dispute over those assets, the discrepancy here is remarkable and warrants further inquiry. Appellee, whose present occupation is given as a charter boat captain, admits to income of only $26,000 per year. His employment history reflects varied entrepreneurial interests depicting a man of substantial skill and experience in business and financial circles. It seems that appellee could meet the reasonable needs of appellant with minimum impairment of his lifestyle.

We also note that the antenuptial agreement challenged by the wife does not in any way limit her right to claim alimony or even address the question. The court was thus not restricted by the agreement from awarding such alimony in the amount or type as may be appropriate.

Appellant, however, contends that rather than rehabilitative alimony the trial court should have awarded her lump sum alimony to effect an "equitable distribution" of the husband's property. She suggests that a division of the "marital" property in which she receives approximately one-third of the husband's estate is equitable and just as such an award would be comparable to her dower expectancy had she remained married. Appellant argues that Klaber v. Klaber, 133 So.2d 98 (Fla. 2d DCA 1961), indicates that appellate courts have equated the division of marital assets upon dissolution with the division of marital assets upon death of one of the parties. While that argument might be asserted in a proper case, ³ such is not the case here. Clearly, the antenuptial agreement is sufficient to release any claim which appellant might have exerted against the estate of appellee upon his death had they remained married. Section 732.702, Florida Statutes (1979), provides that the rights of a surviving spouse may be waived by a "written contract, agreement, or waiver signed by the waiving party" and that no disclosure shall be required for an agreement, contract, or waiver executed before marriage. We therefore disagree with appellant's contention that the trial court was empowered to divide the assets of the marriage in a similar fashion as they would have been divided had the marriage been terminated by the death of appellee rather than by dissolution of marriage.

We do not imply, however, that the trial court did not have authority to make an award of lump sum alimony. As was pointed out in Canakaris v. Canakaris, 382 So.2d 1197 (Fla.1980), the trial court has broad discretion in granting lump sum alimony consistent with the statutory mandate of section 61.08, Florida Statutes (1979), to consider any factor necessary to do equity between the parties.

The third point raised by appellant was whether the trial court's award of child support constituted an abuse of discretion.

We cannot say that the award was an abuse of discretion under the definition of judicial discretion given in Canakaris. Appellant contends that she had planned on a substantial award of appellee's property from which she would derive sums to assist in her daughter's care. Because this expectation was thwarted by the court, she asserts that the amount she asked for and was awarded is inadequate. Child support in the amount of $100 per week, medical and dental expenses, and the use of the marital home until the child is eighteen years were...