Nichols v. Nichols
| Decision Date | 01 September 1982 |
| Docket Number | No. 81-567,81-567 |
| Citation | 418 So.2d 1198 |
| Parties | Nora N. NICHOLS, Appellant, v. William R. NICHOLS, Appellee. |
| Court | Florida District Court of Appeals |
Jeannette M. Haag, of Haag & Haag, Inverness, for appellant.
Louis Ossinsky, Jr., of Ossinsky & Krol, Daytona Beach, for appellee.
The wife, Nora N. Nichols, brings a timely appeal from the trial court's final order awarding her rehabilitative alimony and denying her request for attorney's fees. We find that permanent alimony and attorney's fees should have been awarded to the wife in this cause.
The parties were married for twenty-nine years. Nora is a high school graduate. She worked in a factory prior to marriage, but she did not work outside the home after she married. William, the husband, works in consulting engineering in nuclear power. Over the years the parties moved several times to accomodate William's career. Each move meant a promotion and raise for him, and a comfortable lifestyle for the family. The parties had four children, several of whom had mild to serious medical problems over the years which required much of Nora's time and attention. The sixteen year old son still living at home with Nora is a juvenile diabetic.
The parties separated in late 1978, and the original Petition for Dissolution in this matter was filed in February 1979. The order granting dissolution was entered October 27, 1980, and the order on appeal was entered April 2, 1981. The interim periods were filled with protracted legal proceedings, including the wife's several and usually unsuccessful attempts to get the court to enter a temporary support order.
After the separation and during the early course of the proceedings, William voluntarily gave Nora six hundred dollars ($600) per month, and he paid various bills, such as the mortgage, phone, utilities, automobile expenses, and medical expenses for the son. Because William acted voluntarily, the judge refused to enter a temporary support order prior to the order granting dissolution. There is substantial testimony that the marital home was sold and the proceeds invested in another home for Nora with William's consent.
William was in his early fifties at the time of the dissolution. There was no testimony regarding his health. At the time of the final order on support, etc., he was remarried. He owned a few thousand dollars worth of his employer's company stock which he received as part of his compensation. William's salary progressed from thirty thousand one hundred thirty-two dollars ($30,132) in 1977, to thirty-six thousand three hundred dollars ($36,300) in 1980.
Nora suffers various emotional and physical disabilities such as borderline diabeties, depression, anxiety, high blood pressure, arthritis, and a hiatal hernia which interferes with breathing and swallowing. She has been hospitalized several times since 1978 for nervous, emotional and physical traumas. Nora was fifty years old at the time of the dissolution. She made applications for employment at various businesses since the dissolution proceedings began, with little luck. At the time of the final hearing she was working eight hours a week as a motel maid earning the minimum wage. Nora has no marketable skills or savings.
In the order dissolving the marriage, the court entered a temporary support order for alimony and child support in the amount of seven hundred twenty-five dollars ($725) per month, plus payment of a few specific bills. In its final order the court awarded the wife custody of the son and two hundred fifty dollars ($250) per month child support, William's interest in the marital home as lump sum alimony, William's interest in the wife's car as lump sum alimony, and four hundred dollars ($400) per month rehabilitative alimony for three years. The court granted the husband Nora's interest in his car and required him to pay the remaining installments due on her car. The court reserved jurisdiction over child custody and support and attorney's fees. The court ultimately granted half of the wife's allowable costs, but it denied the wife's application for attorney's fees.
In awarding Nora rehabilitative alimony, the order indicated the court was taking
into consideration that the husband has already been paying rehabilitative alimony since November of 1978 and the Court is considering the total rehabilitative alimony to the wife in this matter as being in excess of five (5) years and three (3) months.
The court's classification of the prior support payments as rehabilitative alimony is unsupported by case law. Temporary support payments are not usually classified as rehabilitative or permanent. 1 But, more importantly, the trial court's award of rehabilitative rather than permanent alimony was erroneous.
The facts in this case are similar to those in this court's recent decision in Holland v. Holland, 406 So.2d 496 (Fla. 5th DCA 1981). In Holland the wife was forty-three and had a tenth grade education. She had been a telegram clerk prior to her marriage of sixteen years. At the time of the dissolution she had no marketable skills and she had some minor health problems. The wife also cared for the parties' eleven year old daughter. Since there was no showing of any potential of actual capacity for self-support on the part of the wife, this court concluded it was error for the lower court to award rehabilitative rather than permanent alimony. Other districts have held permanent alimony was appropriate on similar facts. See McAllister v. McAllister, 345 So.2d 352 (Fla. 4th DCA 1977) and Sullivan v. Sullivan, 363 So.2d 393 (Fla. 2d DCA 1978). 2 It strains reason to argue that a woman with Nora's marital history, who has recently become employed at the minimum wage as a part-time motel maid, has embarked on a new and promising career and will thereby become fully capable of self-support. See McAllister v. McAllister, 345 So.2d at 355.
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