Owens v. Owens

• Court: Florida District Court of Appeals
• Writing for the Court: MINER; ZEHMER; ZEHMER
• Citation: Owens v. Owens, 559 So.2d 321 (Fla. App. 1990)
• Decision Date: 03 April 1990
• Docket Number: No. 88-1281,88-1281
• Parties: 15 Fla. L. Weekly D850 Donald Ray OWENS, Sr., Appellant, v. Virginia Nell OWENS, Appellee.

Page 321

559 So.2d 321

15 Fla. L. Weekly D850

Donald Ray OWENS, Sr., Appellant, v. Virginia Nell OWENS, Appellee.

No. 88-1281.

District Court of Appeal of Florida First District.

April 3, 1990.

Hal Castillo of Lewis, Paul, Isaac & Castillo, P.A., Jacksonville, for appellant.

William Glenn Cone, Jacksonville, for appellee.

VICTOR CAWTHON (Retired), Associate Judge.

This is an appeal from a denial of a motion for termination of alimony. We affirm.

The marriage of the parties was dissolved by a final judgment of dissolution in December of 1984, at which time the appellant was ordered to pay temporary rehabilitative alimony to the appellee in the sum of $200.00 per week for a period of 260 weeks. On September 30, 1987, the appellee filed a motion alleging that the appellant was in arrears in his alimony payments. She sought a finding of contempt and an order compelling immediate payment of the arrearage. The appellant subsequently filed a motion to modify the final judgment of dissolution arguing that there had been a substantial material change in circumstances. More particularly, appellant argued that not only was he unable to pay the alimony, but that the appellee had remarried and was no longer entitled to rehabilitative alimony.

Following several evidentiary hearings, the trial court granted the wife's motion and rejected the husband's request for termination of rehabilitative alimony. The trial court thoroughly reviewed the case law and concluded that remarriage of a recipient spouse is only one of the factors to be considered in determining whether a material change of substantial circumstances has occurred so as to necessitate modification or termination of rehabilitative alimony, citing Frye v. Frye, 385 So.2d 1383 (Fla. 2d DCA 1980), and Markham v. Markham, 485 So.2d 1299 (Fla. 5th DCA 1986).

On appeal, the appellant argues that the sole issue for our consideration is whether or not remarriage of a recipient spouse should require automatic termination of rehabilitative alimony as of the date of remarriage. According to the appellant, the districts are divided on the issue. Appellant notes that this court has stated, in dictum, that remarriage of a recipient spouse would require termination of rehabilitative alimony, citing Cann v. Cann, 334 So.2d 325 (Fla. 1st DCA 1976). However, the appellant correctly observes that this court, in a later decision, held that the statement made in Cann that rehabilitative alimony should be terminated upon remarriage was dictum and consequently had no binding effect on later decisions. Kissinger v. Mason, 436 So.2d 1049 (Fla. 1st DCA 1983). The appellant further notes that the Second and Fifth Districts have specifically ruled that rehabilitative alimony does not automatically terminate upon remarriage of the recipient spouse. Frye v. Frye, supra; Maas v. Maas, 438 So.2d 1068 (Fla. 2d DCA 1983); Faircloth v. Faircloth, 449 So.2d 412 (Fla. 2d DCA 1984); Bentzoni v. Bentzoni, 442 So.2d 235 (Fla. 5th DCA 1983); and Markham v. Markham, supra.

The appellant argues that the Third District Court of Appeal has ruled that remarriage of a recipient spouse requires automatic termination of the right to receive rehabilitative alimony, citing Blackmon v. Blackmon, 307 So.2d 887 (Fla. 3d DCA 1974). However, in Karch v. Hoffman, 534 So.2d 1229 (Fla. 3d DCA 1988), the Third District clarified its holding in Blackmon. In Karch, a former wife had appealed the summary judgment granted her former husband on his motion to terminate alimony, based on the former wife's remarriage. On appeal, the Third District stated:

We do not read Blackmon to automatically terminate rehabilitative alimony on remarriage. In Blackmon, the court found a change in circumstances, which could have been the remarriage 'to a gentleman possessed of ample funds to support [the ex-wife],' rather than the mere fact of remarriage. Other districts in Florida are in accord. [citing Frye, supra ]....

However, resolution of the remarriage-rehabilitative alimony controversy may be reserved for another day.... We are of the view that the award is, in effect, a form of additional child support [in this case].

534 So.2d at 1230. The Third District's characterization of its holding in Blackmon suggests that there is no case law explicitly holding that rehabilitative alimony automatically terminates upon remarriage of the recipient spouse.

We likewise believe it would be unwise to require automatic termination of rehabilitative alimony upon remarriage of a recipient spouse. Rather, the better approach is to require a paying spouse to show a material and substantial change in circumstances.

Accordingly, the order below is AFFIRMED.

MINER, J., concurs.

ZEHMER, J., dissents with written opinion.

ZEHMER, Judge (dissenting).

The majority opinion holds that as a matter of law remarriage does not terminate rehabilitative alimony because "the better approach is to require a paying spouse to show a material and substantial change in circumstances." Since the remarriage of a spouse receiving alimony, whether rehabilitative or permanent, is per se a material and substantial change in circumstances, the effect of the majority's holding is that remarriage alone can never serve to terminate rehabilitative alimony regardless of the circumstances and the rehabilitative purpose of the alimony. This result is erroneous, in my view, and is in conflict with the law of this state. While I agree that remarriage does not operate to terminate rehabilitative alimony in every case, I am convinced that it may have such effect if the fact of remarriage either satisfies or frustrates the rehabilitative purpose. In any event, I find it impossible to ascertain the effect of the remarriage in this case without first knowing the purpose of the rehabilitative award. I would, therefore, reverse and remand for the trial court to determine the rehabilitative purpose and in what way, if any, the fact of remarriage affected the accomplishment of that purpose. See e.g. Lee v. Lee, 544 So.2d 1083 (Fla. 1st DCA 1989); Schneider v. Schneider, 467 So.2d 465 (Fla. 5th DCA 1985); Bentzoni v. Bentzoni, 442 So.2d 235 (Fla. 5th DCA 1983).

The original judgment of dissolution entered September 21, 1984, provides only that "the husband shall pay to the wife as temporary rehabilitative alimony the sum of $200.00 per week for a period of 260 weeks." The first payment began on September 28, 1984, so the alimony would terminate in September 1989. That judgment contains no indication of the purpose or rehabilitative plan contemplated by this award. ¹

Appellant's motion to modify the final judgment, filed October 26, 1987, alleges that the alimony should be terminated because there has been a substantial, material change in circumstances in that (a) appellant sustained injuries in an automobile accident that had rendered him totally disabled since September 1986, and (b) appellee had remarried on January 1, 1987. The appealed order, entered April 25, 1988, denied appellant's request for modification of the rehabilitative alimony. The court made extensive findings of fact and found appellant was not disabled from working and had suffered no substantial change of circumstances for that reason. The court found that the former wife had in fact remarried on January 1, 1987, that the new husband had contributed to their mutual support, and that appellee remained married to him at the time of the hearing. The court further found, however, that appellee and her new husband had separated in April 1987, that she was not now receiving any support from her husband and that she has not sought any support from him since the separation. Regarding the effect of this remarriage on appellee's rehabilitative alimony, the order recites:

As the party requesting modification of the final judgment, the burden is on the former husband to establish that he is entitled to the relief he requests. In this regard, an initial question is whether the fact of the former wife's remarriage, without more, is sufficient to justify termination of rehabilitative alimony. On this question, the district courts of appeal are in disagreement, and the Supreme Court has not spoken. The Third District has held that remarriage automatically terminates rehabilitative alimony. Blackmon v. Blackmon, 307 So.2d 887 (Fla. 3d DCA 1974). The Second District has held that the fact of remarriage, alone, is not sufficient to justify termination of rehabilitative alimony. Rather, remarriage is merely a factor to be considered, like any other change in circumstances:

[W]hen the husband here pled and proved nothing showing an altered need of the wife other than the mere fact of her remarriage, the trial court's refusal to modify on that fact alone should be affirmed. However, this opinion does not preclude a spouse who is paying rehabilitative alimony from pleading and proving that a remarriage or other changed circumstances of the recipient spouse has eliminated or altered the need for further rehabilitative alimony. Once any such evidence other than the mere remarriage has been presented, the burden of proof of continued need should shift to the recipient spouse since the evidence as to the recipient spouse's economic circumstances or those of the newly acquired spouse is peculiarly within his or her knowledge and may not be readily available to the payor spouse.

Frye v. Frye, 385 So.2d 1383, 1390 (Fla. 2d DCA 1980). See also Faircloth v. Faircloth, 449 So.2d 412 (Fla. 2d DCA 1984); Maas v. Maas, 438 So.2d 1068 (Fla. 2d DCA 1983). The Fifth District has aligned itself with the Second. Markham v. Markham, 485 So.2d 1299 (Fla. 5th DCA 1986); Schneider v. Schneider, 467 So.2d 465 (Fla. 5th DCA 1985); Bentzoni v. Bentzoni, 442 So.2d 235 (Fla. 5th DCA 1983). The Fourth District has not squarely decided the question. But see Richter v. Richter, 344 So.2d 889 (Fla. 4th DCA 1977). The First District has, likewise, not...