Lee v. Lee, 88-584

Decision Date09 June 1989
Docket NumberNo. 88-584,88-584
Citation544 So.2d 1083,14 Fla. L. Weekly 1390
Parties14 Fla. L. Weekly 1390 Gloria LEE, Appellant, v. Charles Gordon LEE, Appellee.
CourtFlorida District Court of Appeals

Joseph R. Boyd, Joseph R. Boyd, Jr., and William H. Branch of Boyd & Branch, Tallahassee, Chriss Walker, Dept. of Health and Rehabilitative Services, for appellant.

Kurt Andrew Simpson, Jacksonville Beach, for appellee.

ZEHMER, Judge.

Gloria Lee, the former wife, appeals a final order that granted her former husband's motion to modify a final judgment of dissolution and terminated her rehabilitative alimony. For the reasons hereafter set forth, we reverse for insufficient findings of fact and record support to substantiate a change of conditions legally warranting termination of the rehabilitative alimony, and remand for further proceedings, including the taking of additional evidence if necessary.

The parties did not have the evidentiary hearing on this motion reported and thus have not provided us with a transcript of the evidence presented to the trial court. The sole record of the evidentiary hearing consists of the "Order Establishing Statement of the Evidence and Proceedings" entered by the trial court on motions by counsel for the parties pursuant to Rule 9.200(b)(4), Florida Rules of Appellate Procedure. The statement of the evidence in that order substantially follows the statement in appellant's rule 9.200 motion and reads in its entirety as follows:

This cause came on to be heard upon the objection of the former Husband to the statement presented by the former Wife in accordance with Rule 9.200(b)(3), Fla.R.App.P. [renumbered to 9.200(b)(4) in 1987]. The Court having heard argument of counsel and having duly considered the trial notes of the parties and of the Court, heby [sic] establishes the following as the Statement of Evidence to be considered by the appellate Court in this proceeding:

1. A final judgment of dissolution of marriage was entered on May 25, 1984.

2. Paragraph 10 of the final judgment awarded the former wife $300.00 per month as rehabilitative alimony for a period of five years (or 60 months). That alimony was, therefore, due to expire with the payment due May 1, 1989.

3. The former husband filed a motion to terminate alimony on August 19, 1987.

4. The former wife filed a motion for contempt for failure to pay child support on December 21, 1987. The amount of arrearage equalled the amount of alimony which became due from the date the former husband ceased making full payments until the date the motion was filed.

5. Trial of the issues was conducted on January 11, 1988. Both parties appeared and testified.

6. The basis of the former husband's motion was that the former wife had begun cohabiting with a man on or about June 29, 1987. That fact was admitted by the former wife. He further contended, and the Court finds, that the former Wife no longer had rental or utility payments and that the same were being provided by her boyfriend. This cohabitation equalled $450.00 as former residency expense and approximately $150.00 for utilities, including sewage, water, electricity, and phone. No monies were being charged to the former Wife by her boyfriend for these expenses, but she was providing money for groceries and all household items used for the household, including her boyfriend and his two children, who are reespectively [sic] 12 and 16 years of age.

7. The issue argued in the trial was whether there was a substantial change in circumstances from the time the alimony was ordered to the time of trial. Both parties were familiar with and argued the case based upon the principles expressed in DePoorter v. DePoorter, 509 So.2d 1141 (Fla.App. 1 Dist.1987).

8. The parties introduced documentary evidence concerning their respective financial positions and testified.

9. The former husband relied on evidence that the former wife's boyfriend was contributing to the maintenance of her household, and that such contribution constituted a significant change sufficient to terminate alimony.

10. The former wife relied on the fact (as evidenced by her financial affidavit) that she was unable to maintain her household on her earnings plus the child support and alimony paid by the former husband, and that any economic effect of living with her boyfriend merely allowed her to maintain a home for herself and the children of the parties, not to enhance, her standard of living. Without the alimony, she argued, she would not be able to continue as before.

11. The Court ruled that the Former Wife should no longer receive temporary rehabilitative alimony.

The order granting modification made explicit findings that: "a) The former Wife has established a de facto marriage and has shared home and expenses with her live-in companion since June 1987," and "b) The de facto marriage has resulted in a substantial change in economic circumstances for the Former Wife. See Bentzoni v. Bentzoni, 442 So.2d 235 (Fla. 5th DCA 1983)." Accordingly, the court ordered the termination of the temporary rehabilitative alimony and ruled as moot the former wife's motion for contempt based on arrearages in alimony.

Section 61.14, Florida Statutes (1987), governs the modification of alimony orders. It recites that the section "is declaratory of existing public policy and of the laws of this state," and thus incorporates the decisional law of the courts not inconsistent with the statutory provisions. The statutory language expressly authorizes modification of an order awarding payments for alimony upon application by either party "for an order decreasing or increasing the amount of support, maintenance or alimony ... as equity requires, with due regard to the changed circumstances or the financial ability of the parties ... decreasing, increasing, or confirming the amount of separate support, maintenance, or alimony provided for in the ... order."

Rehabilitative alimony performs fundamentally different functions from permanent periodic alimony. While the latter is predicated solely upon the need for support, rehabilitative alimony may or may not involve support as its principal purpose. The fundamental purposes distinguishing permanent periodic alimony from rehabilitative alimony are described by the supreme court in Canakaris v. Canakaris, 382 So.2d 1197 (Fla.1980):

Permanent periodic alimony is used to provide the needs and the necessities of life to a former spouse as they have been established by the marriage of the parties. The two primary elements to be considered when determining permanent periodic alimony are the needs of one spouse for the funds and the ability of the other spouse to provide the necessary funds. The criteria to be used in establishing this need include the parties' earning ability, age, health, education, the duration of the marriage, the standard of living enjoyed during its course, and the value of the parties' estates....

As a general rule, permanent periodic alimony is terminated upon the death of either spouse or the remarriage of the receiving spouse.

382 So.2d at 1201-02. Rehabilitative alimony is to be distinguished from permanent periodic alimony in that:

The principal purpose of rehabilitative alimony is to establish the capacity for self-support of the receiving spouse, either through the redevelopment of previous skills or provision of the training necessary to develop potential supportive skills.

382 So.2d at 1202. "Rehabilitative alimony automatically terminates by expiration of the period fixed in the final judgment or by such subsequent order as may modify the period" and "presupposes the capacity for self-support." Cann v. Cann, 334 So.2d 325, 329 (Fla. 1st DCA 1976). Rehabilitative alimony, by definition of purpose, contemplates an improvement in the economic condition of the recipient during or at least by the end of the prescribed period, and in that sense presupposes that the receiving spouse will experience a change in circumstances. Rehabilitative alimony can be modified or terminated in accordance with the provisions of section 61.14, Florida Statutes (1987). Maas v. Maas, 438 So.2d 1068 (Fla. 2d DCA 1983); Wolfe v. Wolfe, 424 So.2d 32 (Fla. 4th DCA 1983); Veach v. Veach, 407 So.2d 308 (Fla. 4th DCA 1981). Such alimony may or may not be terminated or modified upon remarriage of the receiving spouse, depending upon the purpose for which the rehabilitative alimony was originally awarded and the express provisions for termination in the original order awarding alimony. See e.g. Bentzoni v. Bentzoni, 442 So.2d 235 (Fla. 5th DCA 1983); Maas v. Maas, 438 So.2d 1068; Kissinger v. Mason, 436 So.2d 1049 (Fla. 1st DCA 1983); Frye v. Frye, 385 So.2d 1383 (Fla. 2d DCA 1980). Cf. Blackmon v. Blackmon, 307 So.2d 887 (Fla. 3d DCA 1975). Considering a motion for termination or modification of rehabilitative alimony under section 61.14 where the original award did not specify termination thereof upon remarriage, the court in Frye said:

However, since rehabilitative alimony is paid for a specific purpose not necessarily related to the recipient spouse's remarriage, it would seem to follow that it should not necessarily be terminated upon remarriage. True, rehabilitative alimony does serve a support function and is usually awarded instead of permanent alimony. Nonetheless, the ultimate purpose of rehabilitative alimony is rehabilitation, and the question upon the recipient's remarriage should be whether that event alone has served the rehabilitative purpose.

385 So.2d at 1389-90.

Manifestly, in determining whether there has been a material change of circumstances sufficient to warrant modification of the rehabilitative alimony award, the court must first determine the purpose of such alimony, including the amount, if any, intended for support. That has not been done by the trial court so far as we can tell from the face of the order or the record before us, and we are unable to make such...

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