Jassy v. Jassy, 76-1736

• Decision Date: 01 July 1977
• Docket Number: No. 76-1736,76-1736
• Citation: 347 So.2d 478
• Parties: David JASSY, Appellant, v. Edith Partrich JASSY, Appellee.
• Court: Florida District Court of Appeals

Page 478

347 So.2d 478

David JASSY, Appellant, v.Edith Partrich JASSY, Appellee.

No. 76-1736.

District Court of Appeal of Florida, Second District.

July 1, 1977.

Johnson S. Savary, Kirk, Pinkerton, Sparrow, McClelland & Savary, Sarasota, for appellant.

William H. Shields, Pavese, Shields, Garner, Haverfield & Kluttz, Fort Myers, for appellee.

SCHEB, Judge.

In this appeal from a dissolution of marriage judgment appellant/husband challenges monetary and property awards in favor of appellee/wife.Specifically, the husband contends the trial court erred in: 1) granting his wife rehabilitative alimony; 2) awarding her the marital home on finding of special equity in her favor and in addition requiring him to continue to pay one-half of the mortgage payments; and, 3) ordering him to pay the wife's attorney's fees.

We conclude that, with one exception, the awards were within the parameters of judicial discretion.The one exception is the requirement the trial judge imposed upon the husband to pay one-half of the mortgage payments on the former marital home in which he has no further interest.As to this one point, we reverse; otherwise, we affirm.

Essentially, the facts are these: Mr. and Mrs. Jassy were married in Michigan in 1969.No children were born of this union, which was a second marriage for each of the parties.They moved to Florida where they separated in 1975.He is now 58, she is 55 and both are in apparent good health.The husband is a substantial developer who has considerable investments in real estate ventures.The extent and diversity of the husband's assets make it difficult to accurately portray their value; however, there is no issue as to his ability to adequately provide for the legitimate and reasonable needs of the wife.Rather, the issue is the extent of the wife's entitlement.The wife, who has a high school education, was employed for only the first eight or nine months of the marriage, but for many years prior to the marriage was a secretary and real estate salesperson.At the time of the dissolution the wife owned the following assets in her name alone: a twenty-acre tract of land received from her husband in which she has an equity of between $27,000 and $37,000; ¹ a small share in a commercial building which yields income of about $168 per year; personal jewelry worth between $1,000 and $3,000; a 1973 automobile; and, 1,000 shares of stock worth between $1,000 and $3,000.In addition to the husband's substantial interests in his own regard the parties owned a substantial amount of property, jointly: a mortgage with a balance due of approximately $75,000, from which they received approximately $14,000 per year; the marital home worth from $45,000 to $65,000; and 32,000 shares of stock worth between $32,000 and $100,000.

The trial judge granted the wife rehabilitative alimony of $600 per month for 36 months.She was awarded the jointly owned marital homeplace upon finding of a special equity in her favor.In addition, the trial court imposed upon the husband a requirement that he pay one-half of all mortgage payments on the former homeplace until the mortgage loan is completely liquidated.The trial judge also awarded the wife $2,500 in payment of her attorney's fee.

It appears to us that after dissolution the wife should receive from her share of the former jointly owned mortgage the sum of approximately $7,000 per year for the next four or five years.In addition, she should receive $168 per year from her minimal interest in the commercial building.She is obligated to pay mortgage payments on the tract of land she received from her former husband.She contends the mortgage payments, when combined with her monthly expenses, will result in a negative cash flow, even considering the amount of rehabilitative alimony which she will receive.

The real thrust of this appeal is the husband's contention that the trial judge abused his discretion in the awards made to the wife in the dissolution of a second venture, childless marriage of something short of seven years.

Rehabilitative Alimony

We have no difficulty in sustaining the trial court's award of rehabilitative alimony for thirty-six months.At best, a woman 55 years old with a high school education and no work experience during the past seven years will find difficulty competing in today's job market.This is the type situation which demonstrates the need for rehabilitative alimony.As Judge McNulty said in Mertz v. Mertz, 287 So.2d 691(Fla.2d DCA1973), rehabilitative alimony contemplates sums necessary to assist a divorced person in regaining a useful and constructive role in society through vocational and therapeutic training or retraining.

Here, the wife's secretarial skills and real estate experience in another state probably would be of only limited assistance to her at this time.Retraining will assist her to develop a potential to maintain a decent and dignified lifestyle somewhat in keeping with what she has known.She plans to work toward a degree in business finance.Initially, she intends to pursue her studies at a local junior college with expectation of completing her degree requirements at a state university.We commonly think of rehabilitative alimony in terms of a somewhat younger spouse when it relates to retraining.Yet, the wife is in apparent good health and considering the increased longevity of the female sex it was within the trial judge's discretion to conclude her goal was an appropriate one and that she has the potential to realize her objective.Once the trial judge so concluded it was incumbent upon him to require the husband, who was financially able to furnish the assistance, to provide necessary funds to accomplish the rehabilitation.Moses v. Moses, 344 So.2d 1322(Fla.2d DCA1977).

Award of Special Equity

We reject the husband's claim that the wife could not assert a special equity on the grounds that it was not specifically pleaded.The matter was sufficiently embraced within the...