Kanouse v. Kanouse
| Decision Date | 26 July 1989 |
| Docket Number | No. 87-2071,87-2071 |
| Citation | 14 Fla. L. Weekly 1767,549 So.2d 1035 |
| Parties | 14 Fla. L. Weekly 1767 Valerie KANOUSE, Appellant, v. Keith J. KANOUSE, Sr., Appellee. |
| Court | Florida District Court of Appeals |
Jane Kreusler-Walsh and Larry Klein of Klein, Beranek & Walsh, P.A., West Palm Beach, for appellant.
Law Offices of Slawson, Burman & Critton, North Palm Beach, and Edna L. Caruso of Edna L. Caruso, P.A., West Palm Beach, for appellee.
This is an appeal by the former wife from a final judgment of dissolution in which the trial court set aside a reconciliation property settlement agreement. The trial court ordered partitioning of the marital home and awarded the former wife a share of the marital assets, child support and temporary rehabilitative alimony of $1500 a month for five years. We affirm in part and reverse in part.
We affirm the trial court's decision to set aside the property settlement agreement. The fact that a party makes a bad bargain is insufficient grounds by itself to vacate an agreement. However, given the specific facts of the case, the trial court did not abuse its discretion in finding sufficient overreaching on the part of the wife to overturn the agreement. Casto v. Casto, 508 So.2d 330 (Fla.1987). Such a finding of fact by the trial court should not be disturbed on appeal.
It is well settled that in marriage dissolution proceedings, the trial court must ensure that neither spouse passes automatically from misfortune to prosperity or from prosperity to misfortune. Neither spouse should be shortchanged. Canakaris v. Canakaris, 382 So.2d 1197 (Fla.1980). We feel, in viewing the totality of the circumstances, the former wife was shortchanged by the insufficient award of alimony and the partitioning of the marital home.
The wife, a licensed attorney, unemployed by choice at time of trial, but sporadically employed in the legal field during the marriage and capable of eventually earning a substantial salary, contests the awarding of rehabilitative alimony in lieu of permanent alimony. In determining whether to award permanent or rehabilitative alimony, the trial court is involved in balancing a number of legitimate concerns. The superior earning ability of the former husband is not necessarily the controlling factor. Kuvin v. Kuvin, 442 So.2d 203 (Fla.1983). The former husband's desire for the support obligation to be temporary must be balanced against the former wife's lost opportunities and ability to become self-supporting. Geddes v. Geddes, 530 So.2d 1011 (Fla. 4th DCA 1988).
Womble v. Womble, 521 So.2d 149, 150 (Fla. 5th DCA 1988).
However, as stated in O'Neal:
A person is not self-supporting simply because he or she has a job and income. The standard of living must be compared with the standard established during the course of the marriage. A divorced wife is entitled to live in a manner reasonably commensurate with the standard established by the husband during the course of a long-term marriage. Nicolay v. Nicolay, 387 So.2d 500 (Fla. 2d DCA 1980). A court must base an award of alimony to a wife upon the ability of her husband to pay that award and her financial needs in light of the standard of living she enjoyed during the marriage.
O'Neal v. O'Neal, 410 So.2d 1369, 1371 (Fla. 5th DCA 1982); Askegard v. Askegard, 524 So.2d 736, 737 (Fla. 1st DCA 1988); Womble, 521 So.2d at 150.
In the instant case the trial court seems to have overlooked this consideration. The former wife permitted her husband's career and the raising of the minor children to take priority over her own career goals during the fourteen-year marriage. Now, she must reestablish herself in the market place. While she is fully capable of so doing, it will take time and money. She should be more adequately compensated for lost career opportunities and the transfer of earning power to her husband during the marriage. Quinn v. Quinn, 536 So.2d 1184 (Fla. 4th DCA 1989).
This is not to suggest that she must be awarded permanent periodic alimony rather...
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