Kremer v. Kremer, 91-02197

• Decision Date: 28 February 1992
• Docket Number: No. 91-02197,91-02197
• Citation: 595 So.2d 214
• Parties: 17 Fla. L. Weekly D596 Paul W. KREMER, Appellant, v. Dawn M. KREMER, Appellee.
• Court: Florida District Court of Appeals

Page 214

595 So.2d 214

17 Fla. L. Weekly D596

Paul W. KREMER, Appellant, v. Dawn M. KREMER, Appellee.

No. 91-02197.

District Court of Appeal of Florida Second District.

Feb. 28, 1992.

Joseph R. Park and Andrew J. Rodnite, Jr. of Park, Rodnite, Hammond and Ossian, P.A., Clearwater, for appellant.

Watson R. Sinden, St. Petersburg, for appellee.

LEHAN, Judge.

In this dissolution of marriage case we reverse the award of permanent alimony to a 36-year-old ex-wife. The marriage had been of only approximately six years duration and had produced no children. The wife had supported herself before the marriage and was shown to be capable of doing so after the marriage except for an ankle injury suffered in a fairly recent automobile accident. She was recuperating from that injury which was not shown to have produced a permanent impairment. Otherwise she was apparently in good health.

We recognize that the ex-husband's income is far greater than that which the wife could reasonably expect to earn and that the standard of living they enjoyed during the marriage was substantially higher than that which the wife could reasonably be expected to sustain for herself without substantial permanent alimony. However, those aspects are not sufficient justification for a permanent alimony award, the level of which in this case, in fact, apparently exceeded by a substantial amount the needs the wife claimed. The husband came into the marriage with substantially more assets and income than did the wife, and there has been no showing that the disparity between the husband's and the wife's assets and income after the dissolution resulted in any substantial way from the marriage. In fact, while the wife came into the marriage without substantial assets, the final judgment of dissolution left her with $38,250 cash, an automobile valued at $10,000, a condominium valued at $46,000, jewelry valued at $3,000, and one-half of the furnishings from the marital home.

As did the Fourth District Court of Appeal in Geddes v. Geddes, 530 So.2d 1011 (Fla. 4th DCA 1988), we do not perceive from this relatively short term marriage involving a relatively young wife with no children any genuine inequity created by the dissolution of the marriage without permanent alimony. In fact, the very size of the award, $3,000 per month, reinforces our conclusion that an inappropriate standard was utilized by the trial court. As did the First District Court of Appeal in Spencer v. Spencer, 590 So.2d 553 (Fla. 1st DCA 1991), concerning an award of rehabilitative alimony which was reversed, we conclude in this case concerning permanent periodic alimony that

[w]hile a short marriage alone does not preclude an award of ... alimony, the record in the present case provides no support for the notion that the wife is without the means of self support, as a result of anything that has transpired during the marriage.

The considerations we have taken into account in this case are similar to those reflected in Judge Anstead's opinion in Geddes in which the Fourth District affirmed an award of only rehabilitative alimony, and no permanent alimony, to a 45 year old wife after a nine year marriage. That court's final rationale, which indicates facts of that case parallel in many respects to those of this case, was as follows:

In this case we have decided that the trial court did not err in failing to award permanent alimony to a relatively young woman who had been self-supporting all of her adult life before this nearly nine-year marriage, and who left the marriage in approximately the same condition. That is, no skills were lost, and no children were born to be raised by her. In fact, she leaves this marriage considerably wealthier than when she entered it. Whether she would have fared even better financially had she continued to pursue a career as a bookkeeper, a butcher, a caterer, or chosen another path altogether, is subject to speculation.

Id. at 1018. The following observation of the Fourth District is especially pertinent:

[N]eed and ability to pay may not be a useful formula in resolving alimony claims in a short-term marriage involving young spouses with no children where no genuine inequities are created by dissolution. In that case, virtually all would agree that a permanent support obligation by one spouse to the other outside of marriage would not be appropriate notwithstanding the disparity that may exist in their respective incomes.

530 So.2d at 1018. What the Fourth District said as background for that observation is also worth repeating to provide perspective, as we do by footnote below. ¹

We have given consideration to not holding that no amount of permanent alimony was within the trial court's discretion in this case and remanding only for a substantial reduction in the award. In fact, we not only are constrained to defer to that discretion in a proper case but we genuinely respect it. However, we have concluded without doubt that there was an abuse of discretion in the award of any alimony. To decide otherwise would foster indefensible inconsistencies in the law in this area. See e.g., Fulks v. Fulks, 558 So.2d 205 (Fla. 2d DCA 1990) (upon dissolution of six year marriage husband's superior earning ability did not justify permanent alimony to 40 year old wife in good health capable of continuing her premarital employment); Campbell v. Campbell, 432 So.2d 666 (Fla. 5th DCA 1983), pet. for rev. dism., 453 So.2d 1364 (Fla.1984) (abuse of discretion to order permanent alimony where wife had ability to become self-supporting).

No case cited by the wife supports the permanent alimony award. All such cases appear to have involved marriages of substantially greater duration, wives of more advanced years, marriages which produced a child or children, or other circumstances different from those of this case.

Deciding upon circumstances in which an appellate court should and should not defer to trial court discretion can be very difficult. But our conclusion that there was an abuse of discretion in this case follows the requisite standard of review because we conclude that reasonable men cannot differ that an award of permanent alimony was unjustified. See Canakaris. Our conclusion in that regard additionally takes into account the considerations reflected in Judge Farmer's dissenting opinion in Thomason v. State, 594 So.2d 310 (Fla. 4th DCA 1992) concerning limitations on the exercise of trial court discretion. While we express no view on the decision of the Fourth District in that case, we think the following portion of Judge Farmer's opinion is worth repeating to provide further perspective:

Judicial discretion has never been confused with the raw power to choose between alternatives, such as to go or not to go. Nor is judicial discretion unreviewable simply because the trial judge chose an alternative that was theoretically available to him. As he did with so many complex ideas, Justice Cardozo distilled the essence of the thought in a few words:

The judge, even when he is free, is still not wholly free. He is not to innovate at pleasure. He is not a knight-errant, roaming at will in pursuit of his own ideal of beauty or of goodness. He is to draw his inspiration from consecrated principles. He is not to yield to spasmodic sentiment, to vague and unregulated benevolence. He is to exercise a discretion informed by tradition, methodized by analogy, disciplined by system, and subordinated to "the primordial necessity of order in the social life." Wide enough in all conscience is the field of discretion that remains.

B. Cardozo, The Nature of the Judicial Process, at 141. Cardozo's insight was applied by the court in Parce [v. Byrd, 533 So.2d 812 (Fla. 5th DCA 1988), rev. denied, 542 So.2d 988 (Fla. 1989) ]:

[Judicial discretion] is not a naked right to choose between alternatives. There must be a sound and logically valid reason for the choice made. If a trial court's exercise of discretion is upheld whichever choice is made merely because it is not shown to be wrong, and there is no valid reason to support the choice made, then the choice made may just as well have been decided by the toss of a coin. In such case there would be no certainty in the law and no guidance to bench or bar.

533 So.2d at 814. See also State ex rel. Mitchell v. Walker, 294 So.2d 124, 126 (Fla. 2d DCA 1974).

We must take care to avoid a mechanical application of the abuse of discretion test to shrink from reviewing the incorrect application of clear legal standards or the application of the wrong standard--all in the name of deferring to the superior vantage point of the trial judge. To do so is to have the rule absorb the whole of judicial review--to have the branch assimilate the tree.

We therefore reverse the award of permanent alimony and remand for a reasoned exercise of discretion of the trial court as to whether there should be rehabilitative alimony and, if so, in what amount and for what period of time.

We also reverse the trial court's requirement that the...