Steinberg v. Steinberg

• Decision Date: 13 January 1993
• Docket Number: No. 91-2042,91-2042
• Citation: 614 So.2d 1127
• Parties: 18 Fla. L. Week. D277 Patricia STEINBERG, Appellant/Cross Appellee, v. Richard STEINBERG, Appellee/Cross Appellant.
• Court: Florida District Court of Appeals

Page 1127

614 So.2d 1127

18 Fla. L. Week. D277

Patricia STEINBERG, Appellant/Cross Appellee, v. Richard STEINBERG, Appellee/Cross Appellant.

No. 91-2042.

District Court of Appeal of Florida Fourth District.

Jan. 13, 1993.

Rehearing and Rehearing En Banc Denied April 6, 1993.

Robert L. Bogen of Alan J. Braverman, P.A., Boynton Beach, for appellant/cross appellee.

Alan E. Weinstein and Frances P. Allegra of Law Offices of Alan E. Weinstein, Miami Beach, for appellee/cross appellant.

HERSEY, Judge.

We affirm that aspect of the final judgment granting a dissolution of the marriage of Patricia Steinberg and Richard Steinberg. We also affirm the continuing mutual restraining order. In all other respects we reverse the judgment finding that the financial provisions for the former wife, appellant herein, are not supported by substantial competent evidence.

The trial court awarded the wife $1,000 per month rehabilitative alimony for six months and $500 per month for thirty months thereafter. The husband's podiatry practice was valued by the court at $30,000, and the court applied the wife's one-half share of that value to offset the parties' joint $30,000 tax liability to the Internal Revenue Service. There were no substantial assets in this marriage other than the husband's practice. The wife neither owned a residence nor an automobile at the time of separation. She worked in her husband's office on and off for approximately ten years without salary, but had not worked for eight years at the time of separation. She suffered severe emotional problems which have been preventing her from gaining employment, in addition to which her meager skills are outdated.

The wife filed an affidavit evidencing monthly expenses in excess of $6,000. There was undisputed testimony that an income of $70,000 per annum could be properly imputed to the husband. An expert testified that the husband's practice should be valued at approximately $100,000. There is competent evidence in the record that the husband's actual net earnings from his practice far exceeded his income reflected in tax returns. The practice directly paid almost all of the parties' day-to-day living expenses, including rent for the marital domicile and transportation.

The alimony award. It may be that, after a period of psychiatric consultation, the wife may become employable, but certainly not at a wage level sufficient to permit her to independently regain the standard of living she experienced during the marriage. Without a crystal ball we are not prepared to accept the final judgment's premise that one year should be sufficient for that purpose, considering the wife's present situation. Accordingly, we hold that the award is erroneous, both as to character and as to quantity.

"Rehabilitative alimony is used to establish the capacity for self-support in the receiving spouse, either through the redevelopment of previous skills, or provision of training necessary to develop potential supportive skills." Villaverde v. Villaverde, 547 So.2d 185, 187 (Fla. 3d DCA 1989), receded from on other grounds sub nom, Ford v. Ford, 592 So.2d 698 (Fla. 3d DCA 1991); accord Sever v. Sever, 467 So.2d 492, 494 (Fla. 2d DCA 1985). Only if the wife is capable of establishing a standard of living reasonably commensurate with the standard set throughout the marriage, then is an award of rehabilitative alimony proper. Ghen v. Ghen, 575 So.2d 1342, 1344-45 (Fla. 4th DCA 1991); Kanouse v. Kanouse, 549 So.2d 1035, 1036 (Fla. 4th DCA 1989).

In Murray v. Murray, 598 So.2d 310, 312 (Fla. 2d DCA 1992), the Second District, in recognizing the broad discretion a trial court has in determining alimony, also acknowledged that it is the appellate court's responsibility to determine whether the trial court has erred in that determination. The Murray court held that the criteria for establishing the need of one spouse include the parties' earning ability, age, health, education, duration of the marriage, the standard of living enjoyed during the marriage, and the value of the parties' respective estates. Id.

In Bible v. Bible, 597 So.2d 359 (Fla. 3d DCA 1992), the Third District held that the trial court erred in awarding rehabilitative alimony where permanent alimony was necessary for the wife to maintain her support. The Bibles were married for 25 years, and at the time of dissolution, the wife was 44 and employed full time as a secretary/receptionist. Id. at 360. The final judgment awarded the wife the use of the marital home until the minor children reached majority, as well as the expenses associated with the home. Id. When the children reached majority, the home was to be sold and the proceeds split between the parties. The wife also was awarded $1,700 monthly rehabilitative alimony for five years and $680 per child monthly child support. Id.

On appeal, the wife argued that the rehabilitative alimony should have been awarded as periodic permanent alimony, and the Third District agreed. Id. at 361. The court held that rehabilitative alimony is proper only where the evidence suggests that the wife can be rehabilitated to a financial stature that would permit her to become self-supporting commensurate with her married life-style. Id. Accord Lanier v. Lanier, 594 So.2d 809, 811 (Fla. 1st DCA 1992).

The Bible court also held that where the trial court awards rehabilitative alimony where permanent alimony is due, the error is harmful and must be reversed because it places the burden on the wife to come in at the end of the rehabilitative period to prove a significant change in circumstances before modification will be allowed. 597 So.2d at 361. On the other hand, if the wife becomes sufficiently self-supporting after the award of permanent alimony, then the husband may apply for modification of the judgment based on a change of circumstances. Id. While the Bible court found no error in the amount of alimony at $1,700 per month, it did find that the nature of alimony was improper, and reversed for it to be awarded as permanent periodic alimony. Id. at 362. See also Brooks v. Brooks, 602 So.2d 630, 632 (Fla. 2d DCA 1992) (wife is entitled to permanent alimony where need was clear from record).

In Lanier v. Lanier, the First District held that it was an abuse of discretion not to award permanent periodic alimony and to award only rehabilitative alimony. 594 So.2d at 811. The twenty-five year marriage in that case was dissolved when the wife was forty-three years old and was a full-time student expecting to receive her B.A. in teaching. The final judgment awarded the wife $1,400 monthly rehabilitative alimony for eighteen months and $500 monthly rehabilitative thereafter, for a period of thirty-six months. Id. at 810-11. Both awards would terminate early on the death of either spouse or the remarriage of the wife, whichever occurred first. Id.

The First District held that since no showing was made that the wife would be able to support herself at a standard of living commensurate with that established during the marriage, despite the fact that she will have a job and an income therefrom, there was a need for an award of permanent alimony. Id. at 811. The court held that "although a wife is arguably self-supporting, she need not demonstrate a total dependency to justify an alimony award." Id. Accord Cosgrove v. Cosgrove, 491 So.2d 1219, 1220 (Fla. 1st DCA 1986) (if the post-marital standard is not commensurate with the former standard, wife is entitled to permanent alimony despite the fact she has an income-producing job).

Lastly, in Carr v. Carr, 522 So.2d 880 (Fla. 1st DCA 1988), the First District held that an award of rehabilitative alimony alone presupposes a potential for self-support which has been underdeveloped or lost during the marriage and is only appropriate where there is evidence that the wife can raise herself to a stature that would permit her to become self-supporting. Id. at 884. The Carr court determined that an award of rehabilitative alimony was erroneous.

In Carr, the husband was a general surgeon, and the wife had work experience as a medical secretary. 522 So.2d at 881. At the time of dissolution, the wife did not have any substantial assets of her own, and the trial court awarded $500 monthly for child support, permanent periodic alimony of $1,500 monthly in addition to health and hospital insurance benefits, and $1,000 monthly for twenty-four months in rehabilitative alimony. Id. at 881-82. The marital assets also were divided, and under the final judgment, the wife was left without a home. Id.

The First District initially noted that the wife did not have a history of earning income "even approaching that necessary to maintain herself" comparable to that in the marriage, and it also held that the evidence did not support a finding that she was capable of being rehabilitated. Id. at 884. The court also noted that it is "somewhat ironic" that the final judgment allowed the husband to continue to have a comfortable and financially secure life at the age of sixty-two, where the wife at age fifty-seven would be relegated to the prospect of entering the working world in search of a career upon which she would have to depend to support herself. Id. The First District concluded that the alimony awards were inadequate both as to amount and nature. It remanded for the rehabilitative alimony award to be converted to permanent periodic alimony and for the court to determine a more equitable amount. Id. at 884-85.

As illustrated by the foregoing cases, an award of rehabilitative alimony was not an appropriate response to the wife's needs in the present case. There should, instead, have been an award of permanent periodic alimony. There is no evidence that the wife will be able to support herself commensurate with her previous standard of living. The husband's expert testified that a medical office specialist should earn between $300 and $450 weekly. The Florida Supreme...