Kelsey v. Kelsey, 93-0988
| Decision Date | 23 March 1994 |
| Docket Number | No. 93-0988,93-0988 |
| Citation | 636 So.2d 77 |
| Parties | 19 Fla. L. Weekly D672 Susan R. KELSEY, Appellant, v. Douglas Wayne KELSEY, Appellee. |
| Court | Florida District Court of Appeals |
The trial court dismissed the former wife's petition for modification because it was filed after the time the former husband was obligated to, and did make, his last payment of rehabilitative alimony. We reverse and hold the petition for modification, which was filed within the two-year term provided for rehabilitative alimony, was timely filed and properly invoked the trial court's jurisdiction to consider modification.
In Mouton v. Mouton, 590 So.2d 40 (Fla. 2d DCA 1991), the Second District held the end of the term for rehabilitative alimony, rather than the status of a spouse's obligation for making payments, determined the time limits for filing a petition for modification. In Mouton the court stated:
Section 61.14, Florida Statutes (1989), extends jurisdiction to the trial courts to "make orders as equity requires" to modify an award of alimony. The Third District has held that a trial court has jurisdiction under this section to consider any motion to modify rehabilitative alimony that is filed within the rehabilitative term. Pujals v. Pujals, 414 So.2d 228 (Fla. 3d DCA 1982). This is true without regard to the jurisdictional language of the final judgment. We agree with this result, and followed it in Laux [Laux v. Laux, 543 So.2d 462 (Fla. 2d DCA 1989),] without discussing Lee [Lee v. Lee, 309 So.2d 26 (Fla. 2d DCA 1975) ].
If the court's jurisdiction were dependent upon the status of one spouse's payments, that spouse could simply prepay rehabilitative alimony and avoid any risk that the other spouse, as a matter of equity, was entitled to an extension of alimony at the close of the term. Such unilateral control of alimony is not compatible with the goals and purposes of rehabilitative alimony, and section 61.14, Florida Statutes (1989), does not require this court to limit the trial court's jurisdiction in such an arbitrary fashion. Such a limitation on jurisdiction might also encourage the spouse receiving alimony to prematurely request modification of rehabilitative alimony. Accordingly, we recede from the language in Lee and Brown [Brown v. Brown, 338 So.2d 916 (Fla. 2d DCA 1976),] which suggests that the trial court may lack jurisdiction to modify rehabilitative during the term of rehabilitation.
Id. at 41. We agree with this analysis and adopt it herein.
Generally speaking, when support is awarded the court retains jurisdiction to enforce the award and to consider modification at any time during the period provided for support. For instance, when permanent periodic alimony is awarded, a petition for modification may be filed at any time, since the period for support is ongoing. In other words, the trial court's continuing jurisdiction is determined by the length of the period of support. The result should be no different for rehabilitative alimony. Consequently, it is when the rehabilitative period actually expires that the court's supervisory jurisdiction ends.
The extension of jurisdiction to the end of the term is also consistent with the policy underlying rehabilitative alimony. Rehabilitative alimony is intended to provide support for a limited period of time to assist a former spouse to become self-supporting. Ordinarily, the longer the rehabilitative scheme is allowed to proceed the more accurate any assessment of its effect will be. Theoretically, the success of the rehabilitation cannot be determined until the temporary period of support ends and the spouse's ability to support herself is reassessed. Continuing jurisdiction until the end of the term will hopefully encourage the parties to give rehabilitation a full chance, and enhance the court's ability to evaluate the rehabilitation if modification is sought.
The trial court and the former husband understandably relied on language from two prior decisions of this court to support a position that the last date that a support payment is due or made is the deadline for filing. In Veach v. Veach, 407 So.2d 308 (Fla. 4th DCA 1981), this court affirmed a trial court's modification of rehabilitative alimony to permanent alimony. The opinion is silent as to when the petition was filed but it does quote with approval the holding in Myrick v. Myrick, 402 So.2d 452 (Fla. 5th DCA 1981): " 'so long as the petition for modification is filed before the time for making payments has expired, the trial court continues to have subject matter jurisdiction to hear and decide the issues raised by the petition even after the rehabilitation period has run.' " Veach, 407 So.2d at 310 (quoting Myrick, 402 So.2d at 453). In Glover v. Glover, 548 So.2d 863 (Fla. 4th DCA 1989), this court held a petition was untimely when it was filed after both the time for making payments and the rehabilitative term had expired. We recede from any language in Veach and Glover indicating a petition filed within the rehabilitative term would not be timely.
Accordingly, because it is undisputed that the former wife's petition for modification was filed within the two-year term for which rehabilitative alimony was provided, we reverse and remand with directions that the petition be reinstated, and for further proceedings in accord herewith.
I certainly agree that we should not deem a trial court's jurisdiction ended before any term of rehabilitative alimony has expired. I have a problem, however, with the holding that "the trial court's continuing jurisdiction is determined by the length of the period of support." I do not...
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