RICKENBACH v. Kosinski

• Decision Date: 16 April 2010
• Docket Number: No. 5D08-1877.,5D08-1877.
• Citation: 32 So.3d 732
• Parties: Robert RICKENBACH, Appellant/Cross Appellee, v. Monica KOSINSKI f/k/a Monica Rickenbach, Appellee/Cross Appellant.
• Court: Florida District Court of Appeals

32 So.3d 732

Robert RICKENBACH, Appellant/Cross Appellee,
v.
Monica KOSINSKI f/k/a Monica Rickenbach, Appellee/Cross Appellant.

No. 5D08-1877.

District Court of Appeal of Florida, Fifth District.

April 16, 2010.

32 So.3d 733

David T. Roberts of Roberts & Robold, P.A., Orlando, and Shannon L. Akins of Law Offices of Shannon L. Akins, P.A., Orlando, for Appellant/Cross Appellee.

Thomas D. Marks and Abigail M. Johnston of The Marks Law Firm, P.A., Orlando, for Appellee/Cross Appellant.

MONACO, C.J.

This is a troubling case. It is troubling because the trial judge fashioned a fair and equitable result after carefully considering the evidence presented to him. Unfortunately, it appears that the relief fashioned was not what either party wanted, and neither seems to have told the court during the course of the trial that the request for the relief that was granted had been withdrawn by stipulation. Thus, we are compelled to reverse.

When the marriage between the parties was dissolved in 2003, the trial judge then presiding entered an order requiring the former husband, Robert Rickenbach, to pay rehabilitative alimony to the former wife, Monica Kosinski, for a period of 36 months during which she was to enter into and complete a dental hygienist program. The trial judge specifically rejected an award of permanent alimony, noting that he considered the marriage of 10 years to be short term. The former wife was admitted to the hygienist program and was progressing satisfactorily when the former husband undertook a series of actions that were apparently intended to undermine the former wife's progress in her educational endeavor. The court found, in fact, that the former husband had intentionally engaged in behavior designed to thwart and frustrate his former wife's efforts to comply with her rehabilitative alimony plan, and that as a result of his actions, the former wife did not complete the plan and dropped out of school.

When the former wife dropped out of school, she sought psychiatric help, and then took a job unrelated to dental hygienic work. Thereafter she sought to have the trial court grant alternative relief.

32 So.3d 734

She asked the trial court either to extend the rehabilitative period with concomitant alimony, or to convert the alimony to permanent alimony.¹ Before the matter came to trial, however, the parties entered into a stipulation, one provision of which was that the former wife was withdrawing that part of her claim seeking an extension of rehabilitative alimony. That is to say, the former wife was now seeking only a conversion to permanent alimony

The parties proceeded to trial on the issues raised, but amazingly neither party seems to have advised the trial judge of the stipulation that removed the extension of rehabilitative alimony from his consideration. At the conclusion of the trial the court completely agreed that the former husband's actions had frustrated the rehabilitative plan, and ordered an extension of the plan to ameliorate the detrimental effects of those inappropriate activities. The trial judge decided, in addition, that he would not grant a conversion to permanent alimony for the former wife. He felt that the principles of res judicata did not permit him to grant that relief because it had been specifically denied by the predecessor judge. In particular he said:

As a matter of law, it is not appropriate for the Court to grant permanent periodic alimony during a post-dissolution modification proceeding when permanent periodic alimony had previously been denied in the original dissolution of marriage proceeding and rehabilitative alimony was awarded at that time instead of permanent periodic alimony.

Both parties moved for rehearing and both parties pointed out in rehearing that neither side actually wanted extended rehabilitative alimony. They alerted the trial judge for the first time that by their earlier stipulation they had removed that issue from the...