Zeigler v. Zeigler

• Decision Date: 14 January 1994
• Docket Number: No. 92-2438,92-2438
• Citation: 635 So.2d 50
• Parties: 19 Fla. L. Weekly D171 Kim ZEIGLER, Appellant, v. Steven M. ZEIGLER, Appellee.
• Court: Florida District Court of Appeals

Page 50

635 So.2d 50

19 Fla. L. Weekly D171

Kim ZEIGLER, Appellant, v. Steven M. ZEIGLER, Appellee.

No. 92-2438.

District Court of Appeal of Florida First District.

Jan. 14, 1994.

E. Jane Brehany of Myrick, Silber & Davis, P.A., Pensacola, for appellant.

Louis K. Rosenbloum and David H. Levin of Levin, Middlebrooks, Mabie, Thomas, Mayes & Mitchell, P.A., Pensacola, for appellee.

WOLF, Judge.

The wife, Kim Zeigler, appeals from a final judgment of dissolution of marriage. The issue on appeal is whether the trial court erred in failing to award any permanent alimony. We find the trial court erred and reverse.

The trial court found as follows:

The parties were married on January 8, 1977, and separated in March of 1990. The Wife's Petition for Dissolution of Marriage was filed on August 10, 1990.

Three children were born of this marriage. The eldest is Ashley M. Zeigler, born January 10, 1981, and the twins, Erin E. and Chad M. Zeigler, were born April 30, 1985. The Wife was born February 24, 1957, and is now thirty-five years of age. A high school graduate, she worked as a receptionist for a law firm between her graduation and marriage. For one year during the marriage the Wife worked part time as a receptionist with an insurance company. She has no other independent work experience, having devoted her time to rearing the parties' three children. Mrs. Zeigler has been very active in the children's schooling and outside interests. She testified that she wants to continue as a homemaker, the children need her, and she has always been there for them.

The Husband was born on November 5, 1953, and is currently thirty-eight years of age. On July 12, 1974, two and one-half years before the parties' marriage, he started working for Federal Express. Having started in a nonflight position, he currently is a pilot for Federal Express. His net disposable income is $143,200 a year with a monthly disposable income of approximately $11,933. The parties agreed during their marriage that the Husband would earn the income and the Wife would be the homemaker.

The parties did not start their married life in luxury but gradually attained a very comfortable standard of living. In March of 1989, shortly before their marriage became unstable, the family bought a luxurious home in Memphis, Tennessee, their home base. A trip to Pensacola Beach in the summer of 1990 resulted in a decision to rent a condominium, which was eventually bought, to determine whether their home base should be changed. The children were enrolled in school in the fall of 1990 in Pensacola with the Wife remaining at Pensacola and the Husband commuting between Pensacola and Memphis. Their marriage had been deteriorating for some time according to the Wife, although the Husband has expressed a willingness to make the effort to resolve their differences. It has been the Wife's decision to sever marital lines. Although claims of marital infidelity prior to the parties' separation were made, the evidence does not support such a finding. The Wife's close relationship with another man developed after the parties' separation.

While there was conflicting evidence regarding the Wife's "devotion" to her children, this Court finds she has essentially dedicated her energies to rearing the parties' children.

Both parties agree that no evidence was presented concerning Mrs. Zeigler's ability to be rehabilitated.

Based upon these facts, the trial court denied permanent alimony, awarded the wife lump-sum alimony of $1,500 per month for a period of seven years, granted child support of $1,000 per month per child, and distributed the assets of the parties. Excluding the lump-sum distribution, the husband was awarded assets that the trial court valued at $245,997, and the wife was awarded assets valued at $136,652.

The trial court discussed the parties' positions as to permanent alimony and the court's reasons for failing to award permanent alimony as follows:

Ms. Zeigler seeks periodic alimony. As there is no rehabilitation plan, this Court may only consider whether or not to make an award of permanent periodic alimony. An equal distribution of the marital assets will not, based upon the parties' current situations, fully provide for Ms. Zeigler's well-being. In making a determination of whether or not to award alimony the Court has considered all the statutory factors required pursuant to Florida Statutes Sec. 61.08. The parties have in recent years attained a relatively high standard of living. By choice, Ms. Zeigler has a lesser standard of living in a two-bedroom condominium without the amenities of the parties' Memphis home. It is her current standard of living that this Court considers pertinent. The marriage is of relatively short duration, thirteen and one-half years. Therefore, there is no presumption of an award of permanent alimony. Ms. Zeigler is 35 years, relatively young, and has no physical or emotional restrictions. Mr. Zeigler is 38 and he also does not suffer from any physical or emotional disabilities. The age of Ms. Zeigler strongly militates against an award of permanent alimony for reasons later discussed. Mr. Zeigler has significantly greater financial resources based upon his earning capacity and based upon Ms. Zeigler's relative inexperience in the marketplace. Each party has contributed to the marriage--Ms. Zeigler rendering services in homemaking and child care.

Ms. Zeigler's main argument to support an award of permanent alimony is that she should be able to continue to devote her energies to rearing the parties' children as the parties determined during their marriage. Mr. Zeigler's main arguments against such an award are that Ms. Zeigler is an adulteress, does not have a substantial need for any additional moneys, and based upon her age, work experience and the age of the children, an award of permanent alimony would be inequitable.

This court has struggled with this issue. The case law would certainly support either parties' position. There is a developing body of case law which requires the trial court to focus on the decisions the parties made during the marriage relative to the roles of child rearing and income earning. However, countering that body of case law are the following concerns in this case. Based upon her age, Ms. Zeigler has a very long life expectancy. An award of permanent alimony for significant additional years when the marriage itself lasted 13 1/2 years would be inequitable to Mr. Zeigler. Ms. Zeigler will be 47 years when their youngest children attain their majority. If she continues to focus her energies on rearing those children to the exclusion of any other interests, when they reach their majority she will essentially be untrainable for the work force. She will have a life expectancy of many more years with no interests having been developed other than rearing her children. This Court can consider of no more gender biased decision than to place Ms. Zeigler in such a position.

The decision concerning the distribution of property and the award of lump-sum alimony was explained as follows:

While this Court is aware of the body of case law which makes a complete distinction between periodic alimony and lump sum alimony, holding an award of lump sum alimony to provide for periodic support is not contemplated by the statutes, see Harvey v. Harvey, 17 FLW D983 (Fla. 4th DCA April 15, 1992), it is this court's reading of the equitable distribution and alimony statutes together that such an award is appropriate. Florida Statutes Sec. 61.075 requires the court in making an equitable distribution to consider designated relevant factors, including "the contribution to the marriage by each spouse, including contributions to the care and education of the children and services as homemaker ... the economic circumstances of the parties ... the duration of the marriage, [and] any other factors necessary to do equity and justice between the parties." This Court is also aware of the position of the First District Court of Appeal that an equitable distribution of the parties' marital assets should begin with an equal division. Trial court decisions departing from the end result of an equal division of the marital assets are often overruled. However, when a trial judge is confronted with the factual scenario of a relatively short-term marriage coupled with the marital decisions these parties made relative to homemaking and income producing responsibilities, and when the marital assets do support an unequal distribution in order to achieve the goals of providing for the Wife's economic support while encouraging her to develop interests outside her family in order to focus on the quality of her life after her children have grown and developed their own independent lives, it does seem equitable to make a lump sum alimony distribution. This Court has provided reasons for the distribution scheme about to be awarded so that the appellate court may provide guidance if the statutory interpretation employed is held to be in error.

The net effect of the trial court's decision is to grant temporary support for seven years, ¹ unequally distribute the assets, and totally deny the request for permanent support. The trial court's decision appears to be based upon its findings that this was a short-term marriage, the wife is relatively young and in good health, and to allow the wife to remain at home with the children without pursuing a career would constitute gender bias. We find: 1) that the marriage was not of such a short duration as to lead to a presumption against the award of permanent alimony; 2) that the age and health factors must...