Weider v. Weider, s. 80-744
| Decision Date | 12 August 1981 |
| Docket Number | 80-1318 and 80-1367,Nos. 80-744,s. 80-744 |
| Citation | 402 So.2d 66 |
| Parties | Helen D. WEIDER, Appellant/Cross Appellee, v. William Grimes WEIDER, Appellee/Cross Appellant. |
| Court | Florida District Court of Appeals |
David R. Wellens of Sobo, Wellens & Balocco, Fort Lauderdale, for plaintiff/cross appellee, wife.
Jerald A. Goldstein, Boca Raton, for appellee/cross appellant, husband.
This case involves consolidated appeals from a final judgment of dissolution of marriage and certain post-judgment orders. Each of the parties raises several points on appeal. In view of our holding, it is not necessary to consider each of the points. We find that the trial court abused its discretion and reverse for a new trial.
In the final judgment, the trial court, inter alia, dissolved the marriage of the parties, awarded the appellant-wife $300 bi-weekly as rehabilitative alimony for three years, and ordered a partition of the marital home, awarding to the wife a $6,000 special equity therein. In a post-judgment order, the trial court awarded the wife exclusive use and possession of the marital home "...until July 14, 1983 or a determination of the appeal of the final judgment...whichever occurs latest in point of time."
The parties were married 23 years at the time of the final hearing. The wife was 60 years old. Although she had had several clerical and sales jobs, she had not been employed for the last 12 years prior to the final hearing. Her testimony indicated that she was in poor health. A vocational consultant, however, testified that she was capable of earning $150 to $160 per week.
The husband, on the other hand, was 51 years old at the time of the final hearing and was earning an annual salary of $43,000 plus various fringe benefits as a vice president of Sensormatic Corporation. The only child of the marriage was emancipated.
The failure to award permanent alimony under these circumstances constitutes an abuse of the trial court's discretion. It is inconceivable that the wife, 60 years old and in poor health, would have the ability to be completely self-supporting upon termination of the rehabilitative alimony. The evidence showed that at most the wife could earn $150 to $160 a week and there was no indication that this amount would increase with rehabilitation. Absent evidence showing that the wife has the ability, with rehabilitation, to become self-supporting, permanent alimony should be awarded. Gerber v. Gerber, 392 So.2d 317 (Fla. 4th DCA 1980); accord, Colucci v. Colucci, 392 So.2d 577 (Fla. 3rd DCA 1980). The facts here present a more compelling case for reversal than the above cases.
Next we consider the amount of the alimony. The factors to be considered in determining the amount of alimony payments are the needs of one spouse and the ability of the other spouse to satisfy those needs. The criteria to be used include the parties' earning ability, age, health, education, the duration of the marriage, the standard of living enjoyed during the course of the marriage, and the value of the parties' estates. Canakaris v. Canakaris, 382 So.2d 1197 (Fla.1980). See also, McAllister v. McAllister, 345 So.2d 352 (Fla. 4th DCA 1977); cert. denied 357 So.2d 186 (Fla.1978). In considering these criteria, it becomes obvious that the award of rehabilitative alimony of $300 bi-weekly is inadequate. Assuming the wife obtains employment at the rate of $150 per week, she will have a total annual taxable income of $15,600 for three years. The husband's income, on the other hand, less his deductible alimony, will be $35,200. This disparity in the relative incomes of the parties warrants alimony in excess of that awarded by the trial court.
We must also reverse that portion of the final judgment ordering partition. In order to justify an award of partition, the pleadings...
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