Krieger v. Krieger, CC--64

• Decision Date: 03 May 1977
• Docket Number: No. CC--64,CC--64
• Parties: Gertrude E. KRIEGER, Appellant, v. Richard H. KRIEGER, Appellee.
• Court: Florida District Court of Appeals

Page 1346

344 So.2d 1346

Gertrude E. KRIEGER, Appellant, v. Richard H. KRIEGER, Appellee.

No. CC--64.

District Court of Appeal of Florida, First District.

May 3, 1977.

Susan C. Jamieson, Jacksonville, for appellant.

Richard H. Krieger, pro se.

PER CURIAM.

AFFIRMED.

MILLS, Acting C.J., and DURDEN, J. ROBERT, Associate Judge, concur.

ERVIN, J., dissents.

ERVIN, Judge, dissenting.

I dissent. Gertrude Krieger filed petition for separate maintenance against Richard Krieger, appellee, alleging that he willfully abandoned her in August, 1972 and refused to support and maintain her ever since. She further alleged that she was without funds, income or property with which to support and maintain herself. The husband filed his answer and counter-petition for dissolution of marriage, alleging constructive desertion by the wife for her refusal to return with him to the United States and her continued residence in West Germany; thereby forfeiting her right to alimony. The wife filed her answer to the counterpetition, including a prayer for permanent alimony. Following hearing, the court entered final judgment of dissolution of marriage and denied the wife's petition for alimony. The wife appeals the denial of her application for alimony.

At the hearing held on April 1, 1976, only the husband and his son were present to testify. The record before this court is based upon the deposition testimony of the wife and a stipulation to the testimony given by the husband and son at the hearing. The wife's deposition shows that she was born in Germany in 1925, but later became an American citizen, completed ten years of education, was employed prior to the marriage, but had not worked during the 22 years preceding the separation; instead attended to her duties as a homemaker and raised their two children to adulthood. She testified that since the separation she had worked temporarily at several jobs but was presently unemployed. Although she often sought employment she was told she was too old and, due to her lack of experience, was advised by prospective employers she was not qualified. Moreover, her physical health was poor due to a nervous condition which had existed the preceding three years.

She stated that the reason she did not accompany her husband to the United States was that he did not provide her with transportation and that he did not wish her to accompany him there. Moreover, due to her belief that since the separation her husband had taken up residence with another woman, she felt she had no place to go. She testified that she received $263.85 unemployment or welfare benefits from the German government per month and that her financial needs were in excess of $396.00 per month. In a financial affidavit, Mrs. Krieger stated that she had total liabilities consisting of loans in the sum of $3,023.30.

In the stipulation of testimony taken at the final hearing, the husband stated that his reason for leaving Germany was to seek employment in the United States due to his forced retirement from his position as an equipment specialist civil employee with the United States Army in 1972 because of a reduction in the military which caused his job eliminated. Prior to his retirement his gross income in 1972 and 1973 was $17,500.00. He did not seriously expect his wife to accompany him because they had experienced marital difficulties since 1966 and had discussed separation many times.

The court's final judgment of dissolution, relating to the denial of alimony, stated only '(t)he wife's petition for alimony is hereby denied and neither party shall receive alimony from the other.' The court gave no reasons for its denial of the wife's petition; consequently we may only conclude that it determined that the wife was not entitled to alimony because of her misconduct in failing to accompany her husband on his return to the United States; thereby accepting the husband's argument that she was guilty of constructive desertion. Great weight of course must be accorded the judgments of the trial court, and alimony awards will not be disturbed unless an abuse of discretion is shown. Sommese v. Sommese, 324 So.2d 647 (Fla.1st DCA 1976). In Sisson v. Sisson, 336 So.2d 1129 (Fla.1976), the Florida Supreme Court recently held that appellant is required to show clearly that the trial court abused its discretion in the amount of the award of alimony. The question necessarily, under the particular circumstances of this case, is: Did the trial court abuse its discretion in denying the wife's petition for alimony?

I.

It cannot seriously be argued that the wife did not establish her entitlement to alimony based upon her need and the ability of the husband to pay. In Sisson v. Sisson, supra, the Supreme Court stated that whether or not alimony is characterized as permanent or rehabilitative, the principle issues to be determined are the need of the spouse seeking alimony and the ability of the other spouse to pay. In discussing the effect of the 'No-Fault Divorce Act' upon the right of the spouse to obtain alimony, the Fourth District Court of Appeal in Lefler v. Lefler, 264 So.2d 112 (Fla.4th DCA 1972), stated:

'We have the view, however, that no matter which direction the flow of alimony may take, Its basic nature and purpose remains the same as heretofore, i.e., to provide nourishment, sustenance and the necessities of life to a former spouse who has neither the resources nor ability to be self-sustaining. We expressly hold that just as heretofore the wife's entitlement to alimony depended upon a showing of her need and the husband's ability to pay, Jacobs v. Jacobs, Fla.1951, 50 So.2d 169; Pendleton v. Pendleton, Fla.App.1966, 189 So.2d 499; 10 Fla.Jur., Divorce, § 166, so now the husband's entitlement to alimony depends upon a showing of his need and the wife's ability to pay.' 264 So.2d 113--114. (Emphasis supplied.)

The cases are replete with situations similar to those in the case before us where the wife was held to be entitled to alimony when it was shown that (1) the wife faithfully attended to her marital duties for many years; (2) she was later unemployable due to her physical condition or lack of outside employment experience and (3) the husband was capable of providing support for the wife. E.g., Lash v. Lash, 307 So.2d 241 (Fla.2nd DCA 1975); Norton v. Norton, 328 So.2d 484 (Fla.1st DCA 1976); Nevins v. Nevins, 305 So.2d 63 (Fla.3rd DCA 1974); Gall v. Gall, 336 So.2d 10 (Fla.2nd DCA 1976); Fugassi v. Fugassi, 332 So.2d 695 (Fla.4th DCA 1976); Calligarich v. Calligarich, 256 So.2d 60 (Fla.4th DCA 1971); Sharpe v. Sharpe, 267 So.2d 665 (Fla.3rd DCA 1972); Palmer v. Palmer, 338 So.2d 86 (Fla.1st DCA 1976).

Additional factors to be considered in awarding alimony include, as stated by the Fourth District Court of Appeal in Gordon v. Gordon, 335 So.2d 321, 322 (Fla.4th DCA 1976):

'. . . due consideration must be given 'the value of the parties' estates, the parties' earning ability, age, health, station in life, duration of marriage, conduct of the parties, prior marriages, and relative responsibilities as to other dependents who have claims on the husband for sustenance or education.' See Gordon v. Gordon, 192 So.2d 514 (Fla.App.1st 1966). See also McRee v. McRee, 267 So.2d 21 (Fla.App.4th 1972).'

When we consider the above factors as applied to facts before us, we find that the wife was 51 years of age at the time of the final judgment of dissolution, her health was poor, the prospects of her future earning ability were bleak due both to her deteriorated physical condition and to the fact that she had no employment experience for 22 years prior to the separation. When we examine the financial ability of Mr. Krieger to provide for the needs of his former wife, we find a man who has no separate estate of his own; who, at the time of the final hearing, was temporarily unemployed, but was nevertheless in good health and who received a monthly civil service annuity of $841.00. Moreover he claimed no persons on his income tax return dependent upon him for support. We may fairly conclude that Mr. Krieger, while far from a man of affluence, nevertheless was capable of providing some degree of sustenance to his wife's dire financial plight. The wife's situation here was very much like that described by the Second District Court of Appeal in Lash v. Lash, supra:

'. . . in those cases where the dissolution comes about after many years of marriage, there are different circumstances to be considered. (From those in which dissolution occurs after a short period of time.) In the first place, it often happens that the wife has given up her career upon marriage in order to manage the home and raise children. Furthermore, in a marriage where the wife has stayed home, the husband has had the opportunity of enhancing his working expertise during the entire period of his married life; whereas, the wife, if anything, may now be less equipped for work than she was when she became married.' 307 So.2d at 243.

II.

The wife has made a prima facie showing of her entitlement to alimony. The only remaining question, then, is whether she forfeited her rights thereto by her failure to return to the United States with her husband? She argues that her misconduct, if any, does not constitute a bar since the only misconduct mentioned under Section 61.08(1), Florida Statutes (1975), ¹ which gives the chancellor discretion to enter an outright denial of a request for alimony, is adultery and since the record contains no proof that she was an adulterous wife, she has clearly established her entitlement to the award, having shown her need and the ability of the husband to pay. The argument continues that having made such showing, the chancellor is vested only with the discretion, under Section 61.08(2), ² to determine the amount of the award.

In Oliver v. Oliver, 285 So.2d 638 (Fla.4th DCA 1973), the court, when confronted with the issue of the spouse's...