Stoler v. Stoler
Decision Date | 02 October 1979 |
Docket Number | No. 78-1261,78-1261 |
Citation | 376 So.2d 253 |
Parties | Alan STOLER, Appellant, v. Barbara Ann STOLER, Appellee. |
Court | Florida District Court of Appeals |
Sinclair, Louis, Siegel & Heath and John L. Zavertnik and Paul A. Louis, Miami, for appellant.
Leonard L. Kimball, North Miami Beach, Hal P. Dekle, Tallahassee, for appellee.
Before PEARSON, HENDRY and BARKDULL, JJ.
Appellant Alan Stoler appeals from certain of the financial portions of a final judgment dissolving his marriage to appellee Barbara Ann Stoler. The findings of the trial court include the following:
Based on the testimony before him, the trial judge awarded the custody of the two minor children to the wife and directed the husband to pay the wife $1,000.00 per month permanent alimony, inserting the provision: "There shall be an annual increase in support and alimony based upon the U. S. Department of Labor cost of living index." In addition, the husband was required to pay $200.00 per month for child support and to make certain other provisions for the wife, which are not here in controversy.
On this appeal, the husband raises two points: The first is that the trial judge erred in providing in the final judgment for the automatic annual increase in alimony based upon a cost of living index. The second is that the trial judge erred and abused his discretion in awarding permanent instead of rehabilitative alimony.
In Greene v. Greene, 372 So.2d 189 (Fla. 3d DCA 1979), this court held that such an automatic provision is improper in an order modifying the alimony and support provisions of a final judgment of dissolution of marriage. We see no reason that the same rule should not apply to final judgments. The statutes and rules of procedure provide an adequate means for the adjustment of alimony to the needs of the recipient and the ability of the partner charged. It is difficult for trial judges to see into the future and determine these factors in advance. While there is a strong probability that the provision inserted might be beneficial, there is also a possibility that it might be unjust. As such, it should not be included in orders allowing alimony. We think that our position in this matter is supported by Richter v. Richter, 344 So.2d 889 (Fla. 4th DCA 1977); McNaughton v. McNaughton, 332 So.2d 673 (Fla. 3d DCA 1976); and Griffin v. Griffin, 276 So.2d 211 (Fla. 4th DCA 1973).
The trial judge having made his determination that some permanent alimony was proper for the former wife who, after 17 years of marriage is now 37 years of age and is charged with the upbringing of two minor children, we believe we should not substitute our judgment for his. See Herzog v. Herzog, 346 So.2d 56 (Fla.1977); Shaw v. Shaw, 334 So.2d 13 (Fla.1976); Koeppel v. Koeppel, 351 So.2d 766 (Fla. 3d DCA 1977); and Peacock v. Carter, 315 So.2d 214 (Fla. 1st DCA 1975).
Accordingly, the final judgment is modified by striking the following language from paragraph 4 of the "Ordered and Adjudged" portion thereof: "There shall be an annual increase in support and alimony based upon the U. S. Department of Labor cost of living index."
The judgment, as modified, is affirmed.
Modified and affirmed.
I respectfully dissent from so much of the majority opinion that affirmed the award of permanent alimony. Since the adoption of the no fault divorce statute by the Florida Legislature, the courts have recognized that upon dissolution of a marriage relationship each party thereto should share equal burdens in such event. Thigpen v. Thigpen, 277 So.2d 583 (Fla. 1st DCA 1973); Fitzwater v. Fitzwater, 296 So.2d 74 (Fla. 1st DCA 1974). As was stated in Beard v. Beard, 262 So.2d 269, 272 (Fla. 1st DCA 1972):
". . . The fortuitous circumstance created by recitation of the marriage vows neither diminishes her (the wife's) capacity for self-support nor does it give her a vested right in her husband's earnings for the remainder of her life."
If the wife has the capacity to make her own way through the remainder of her life unassisted by the former husband, then the court cannot require him to pay alimony other than for rehabilitative purposes. Roberts v. Roberts, 283 So.2d 396 (Fla. 1st DCA 1973). Without evidence reflecting a permanent inability on the part of the wife to become self-sustaining, there can be no award of permanent alimony. Crees v. Crees, 342 So.2d 1014 (Fla. 4th DCA 1977). A review of the record in the instant case reveals that the award of permanent alimony to the wife is not supported by competent substantial evidence of a permanent inability on the part of the wife to become self-sustaining.
The parties were married for approximately 16 years and had two minor children. At the time of the final hearing the wife was 37 years old, in good health, and had a college degree in teaching. She had been employed as a Dade County school teacher at the time of the marriage and continued teaching during the first year of the marriage. She testified that her teacher's certificate had since lapsed and that she hadn't tried to get a job teaching during the last twelve months. At the time the wife gave her testimony, she was attending Barry College and taking a Master's degree program in community counseling. She stated that she was trying to get herself ready to eventually go back to work. She thought she should not work, so that she could be at home when the children returned from school in the afternoon. In addition to continuing her education, the wife worked part-time at Gulliver Academy as a counselor in exchange for the tuition for her daughter, Linda; took volunteer training at South Miami Hospital, and participated in civic and religious affairs.
Based on these undisputed facts, it appears that the trial judge erred and abused his discretion in awarding permanent alimony, since there is No competent substantial evidence reflecting a permanent inability on the part of the wife to become self-supporting. This is apparent not only from the uncontroverted facts that the wife has the capacity and desire to be self-supporting, but that she is also presently working part-time as well as preparing herself for a new career. See: Cann v. Cann, 334 So.2d 325 (Fla. 1st DCA 1976); Collins v. Collins, 323 So.2d 583 (Fla. 3d DCA 1975); Zaugg v. Zaugg, 357 So.2d 201 (Fla. 3d...
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...an alimony recipient is not entitled to an automatic cost-of-living increase based upon the consumer price index); Stoler v. Stoler, 376 So.2d 253, 254 (Fla.Dist.Ct.App.1979) (finding error where a trial court inserted a provision in an alimony award providing for an automatic cost-of-livin......
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