Lilly v. Lilly

• Decision Date: 24 May 2013
• Docket Number: No. 5D11–4093.,5D11–4093.
• Citation: 113 So.3d 155
• Court: Florida District Court of Appeals
• Parties: Donald R. LILLY, Appellant/Cross Appellee, v. Lynne M. LILLY, Appellee/Cross Appellant.

113 So.3d 155

Donald R. LILLY, Appellant/Cross Appellee,

v.Lynne M. LILLY, Appellee/Cross Appellant.

No. 5D11–4093.

District Court of Appeal of Florida,

Fifth District.

May 24, 2013.

Mark A. Skipper, of Law Office of Mark A. Skipper, P.A., Orlando, for Appellant/Cross Appellee.

Diana M. Tennis, of The Law Office of Diana M. Tennis, P.A., Orlando, for Appellee/Cross Appellant.

SAWAYA, J.

This appeal is a sequel to an appeal in the same dissolution of marriage case that we decided three years ago. Lilly v. Lilly, 35 So.3d 1022 (Fla. 5th DCA 2010). In the first appeal this court affirmed an award of rehabilitative alimony to the former wife (Wife). The question presented in the current appeal is whether the trial court properly converted the rehabilitative alimony award to permanent alimony.¹

The genesis of the rehabilitative award was medical testimony and evidence presented in the original dissolution hearing that established that Wife is afflicted with a litany of physical and mental disorders, most notably a severe form of obsessive/compulsive disorder (OCD). There is no cure for OCD and the main focus of her treatment was to reduce and manage her symptoms. Despite these maladies, the former husband's (Husband) vocational rehabilitation psychologist, who had previously evaluated Wife, concluded that Wife was immediately capable of obtaining entry-level employment on a part-time basis. He also concluded that she could successfully transition into full-time employment within twelve months of vocational rehabilitation training at an estimated cost of $3,000 to $5,000. The trial judge found the psychologist's testimony and conclusions compelling, as the Amended Final Judgment indicates, and determined that Wife was capable of full-time employment, earning $12 to $17 per hour within twelve months, if she participated in vocational training within the cost range projected by the psychologist. So, in addition to permanent alimony in the amount of $1,500 per month, the trial court awarded Wife rehabilitative alimony in the amount of $1,000 per month for eighteen months—a rather generous award of time and money given the expectations of her future employment in twelve months, total payments of $18,000, and the estimated costs of no more than $5,000.

Shortly before the rehabilitative period was to expire in August 2010, Wife filed a petition to convert the rehabilitative alimony to permanent alimony. At the conversion hearing, evidence was presented by both parties and, at the conclusion, the trial court rendered the judgment we now review granting Wife's petition. Husband appeals, contending that the evidence does not establish that Wife made reasonable and diligent efforts to comply with the provisions of the rehabilitative plan.

This rehabilitative plan, like others formulated in dissolution cases, is premised on assumptions and probabilities that if the dependent former spouse makes reasonable and diligent efforts to comply, rehabilitation will occur within the projected time range that will assist the former spouse in achieving the goal of becoming partially or fully self-supporting, thus eliminating or reducing the need for further support. Rickenbach v. Kosinski, 32 So.3d 732 (Fla. 5th DCA 2010); O'Neal v. O'Neal, 410 So.2d 1369 (Fla. 5th DCA 1982). But plans designed with assumptions and probabilities are not infallible and, despite reasonable and diligent efforts at compliance, the expected results sometimes do...