Stewart v. Stewart

• Decision Date: 13 June 1997
• Docket Number: No. 95-2904,95-2904
• Citation: 696 So.2d 1237
• Parties: 22 Fla. L. Weekly D1450 Steven STEWART, Appellant, v. D. Elaine STEWART, Appellee.
• Court: Florida District Court of Appeals

Page 1237

696 So.2d 1237

22 Fla. L. Weekly D1450

Steven STEWART, Appellant, v. D. Elaine STEWART, Appellee.

No. 95-2904.

District Court of Appeal of Florida Fifth District.

June 13, 1997.

Rehearing Denied July 22, 1997.

Sharon Lee Stedman of Sharon Lee Stedman, P.A., Orlando; and Steven C. Stewart, Alpharetta, GA, for Appellant.

Bruce W. Flower, Maitland, for Appellee.

PER CURIAM.

The former husband appeals from a final judgment of dissolution of marriage. We find merit only in his contention that the trial court erred in awarding permanent alimony to the former wife, and we reverse that award.

The record below established that the wife, 34 years of age at the time of dissolution, was in good health, had a nursing degree and was employed as a pharmaceutical representative. She testified that she could earn $3,000.00 per month as a placement coordinator. An award of permanent alimony under those circumstances was an abuse of discretion. See Siegel v. Siegel, 564 So.2d 226 (Fla. 5th DCA 1990); Bujarski v. Bujarski, 530 So.2d 953 (Fla. 5th DCA 1988); Wismar v. Wismar, 522 So.2d 552 (Fla. 5th DCA 1988); Campbell v. Campbell, 432 So.2d 666 (Fla. 5th DCA 1983), rev. dismissed, 453 So.2d 1364 (Fla.1984). A determination that permanent alimony should be awarded implies that one spouse is incapable of self-support. Griffith v. Griffith, 528 So.2d 1325, 1326 (Fla. 5th DCA 1988). That incapacity is not demonstrated by the instant record.

It is understandable that the trial judge in this case made no attempt to comply with the requirements of section 61.08(1) and (2), Florida Statutes, in respect to findings of fact to support his alimony award. See Moreno v. Moreno, 606 So.2d 1280 (Fla. 5th DCA 1992). In the case relied upon by the appellee to support an award of permanent alimony--O'Neal v. O'Neal, 410 So.2d 1369 (Fla. 5th DCA 1982)--the parties had been married for thirty-two years, the wife had not been gainfully employed, and she was 50 years old at the time of dissolution.

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED FOR ENTRY OF JUDGMENT CONSISTENT WITH THIS OPINION.

COBB and GOSHORN, JJ., concur.

W. SHARP, J., dissents with opinion.

W. SHARP, Judge, dissenting.

I respectfully dissent from the majority opinion's conclusion as a matter of law that the trial court abused its discretion in awarding the former wife permanent alimony in this case. I would have remanded this cause to the trial court for the purpose of recalculating the amounts of alimony and child support the former husband is required to pay because of the past due tax liabilities he is paying under force of a federal lien.

The findings of the trial judge appear to me to be adequate to justify an award of permanent, or at least temporary alimony in this case. He made the following findings:

1. The parties were married on March 20, 1982, and separated on December 1, 1993, and had been married at the time of the dissolution decree for 13 years;

2. The parties had one minor child, born April 13, 1988;

3. The former husband earns in excess of $104,000.00 per year and the former wife was earning $18,000.00 per year;

4. "The husband obtained advanced college degrees (including a masters degree in business administration and a juris doctor) during the marriage of the parties, but also during the marriage the wife delayed her own educational advancement so the husband could pursue his educational goal, thus placing the husband in a superior position as far as the ability to earn income is concerned;"

5. "The Court has considered the requirements of Chapter 61.08(3) concerning the eligibility of the wife for rehabilitative alimony or permanent alimony and the Court finding [sic] that the length of the marriage, more than eleven (11) years, prior to the parties' separation, the standard of living established during the marriage of the husband's income exceeding $60,000 per year, at the time the husband's far superior educational level and thus his far superior ability to earn income, the wife's sporadic income production during the marriage in order for the husband to improve his educational level as well as for the wife to care for the minor child of the parties, the court determines the wife has not met her burden to prove her need for rehabilitative alimony, but rather has met her burden for the award of permanent alimony, ..."

The trial court did not make express fact findings as to some of the factors listed in section 61.08; i.e., age and physical condition of each party, the financial resources of each party, nonmarital and marital assets and liabilities distributed to each, and all sources of income available to either party. However, if that is the problem or defect with this judgment, we should remand to permit the trial judge to make those findings, as has become our custom in the recent past. ¹

The record on appeal, if read in the light of sustaining the trial judge as we must do, ² contains sufficient evidence to justify findings on those grounds. The parties were both 21 years old at the time of their marriage, and 34 years old at the time of their dissolution. Both were in good health. The former wife did not have a college degree. When the parties married she had an LPN degree, but she never was employed in that field. She worked sporadically during the marriage as a waitress, as a clerk, as a nursing personnel staffer/recruiter, and as a pharmaceutical salesperson. Sometimes she held two part time jobs at once to contribute to the support of the family. At one time she tried to go back to school to get a college degree, but found it impossible to do so, care for the parties' young son, and juggle a part time job. She had always been the child's primary care giver.

The most she was ever able to earn during the parties' marriage was $20,000.00 a year as a pharmaceutical sales person. But she also testified that was the maximum amount she could ever expect to earn because she lacked a college degree and because of the necessity to not work full time so that she could care for the parties' child. She testified that in order to advance in that field she would have to have a college degree in business. That would take her three years to accomplish, going full time, and would cost her $24,000.00. She testified she would like to pursue that degree, but financially it was presently impossible.

In contrast, although the former husband had an engineering degree when the parities married, he was able to earn an advanced degree in electric engineering, a masters in business administration and a law degree during the marriage. During this time, the former wife worked as much as she could to support the family. His educational and career moves required them to move from city to city and state to state. She put his career and education ahead of her own, and subordinated hers.

At the time of the dissolution, there were very few marital assets to divide between the parties, perhaps due to the fact that they had moved frequently and had concentrated on improving the former husband's career and education. Aside from the two cars, personal belongings, and some furniture, there were no liquid assets which might have provided the former wife a capital cushion or source of additional income. The parties' marital home had almost little or no equity in it, and the court recognized neither could afford to keep it and live in it.

Based on the Canakaris ³ standard of appellate review, I think this court should have affirmed the trial court's award of permanent alimony in this case. Would no reasonable trial judge have made such an award? This was not a short-term marriage, ⁴ there was a young child, the former wife contributed significantly to the husband's education and career, she had always assumed the primary care of their child, there were no substantial marital assets to divide, and most likely the former wife will never be able to earn a sufficient amount of income to even approximate the parties' former $60,000.00 a year marital...