Ente v. EnteEnte v. Ente
This case involves the propriety of an award of lump sum alimony and of permanent periodic alimony rather than rehabilitative alimony.
At the time of dissolution of their marriagе the parties had been married twenty-six years. The two children of the marriage were adults. Both parties are educated and industrious. The husband, an administrator, earned $31,200 a year gross plus some fringe benefits. Except for a year at the time of the birth of the oldest child, the wife has worked during the marriage, owns her own bookkeeping service, and is studying accounting. She has declined a job offer of $11,000 per year because she can earn more in her own business.
With immaterial exceptions, all assets of the parties were accumulated during the marriage and, except for the marital home, the trial court made an equitable distribution by dividing thе marital assets equally. The trial court ordered the marital home to be sold at partition sale and the proceeds distributed (a) $4,000 to the husband to repay a life insurance loan used to acquire the house, (b) $30,000 to the wife as lump sum alimony and (c) the remainder to be split equally between the parties. The husband was also ordered to pay the wife $450 per month as permanent periodic alimony. The husband appeals the lump sum and periodic alimony awards.
As explained in Gorman v. Gorman, 400 So.2d 75 (Fla. 5th DCA 1981), in Canakaris v. Canakaris, 382 So.2d 1197 (Fla. 1980), the Florida Supreme Court created аn ambiguity in the legal meaning of the term “lump sum alimony” when it cited Yandell v. Yandell, 39 So.2d 554 (Fla. 1949), which used the term to refer to an exceptional one time pаyment to meet and discharge a spousal support obligation and also, citing Brown v. Brown, 300 So.2d 719 (Fla. 1st DCA 1974), cert. dism‘d 307 So.2d 186 (Fla. 1975), used the term to describe the tool which a trial court can use to make an equitable distribution of marital assets between the parties. Brown had used the term in the property distribution sense when it noted that “lump sum alimony is no longer frowned upon in adjusting the marital wealth of the parties at the time of dissolution of thе marriage.” 300 So.2d at 725. See also Lynch v. Lynch, 437 So.2d 234 (Fla. 5th DCA 1983).
As the trial judge in this case did not state the purpose of the lump sum alimony award we review it to determine if it was properly a single payment of spousal support or a part of an equitable distribution of marital assets or erroneous.
The wifе testified at trial that she considered the parties marriage to be a “fifty-fifty marriage” and the trial judge stated an intention to divide thе marital assets equally and did so, except as to the proceeds of the sale of the marital home. While the concept of “equitable distribution” has not been held to require an absolutely equal division of the marital assets, this court has indicated thаt is a good starting point, see Mahaffey v. Mahaffey, 401 So.2d 1372 (Fla. 5th DCA 1981). Since Canakaris, some cases have upheld some equitable distributions that were not equal and some cases havе reversed equitable distributions that were not equal;1 but more importantly it should be noted that the cases have consistently upheld аn equal division as being an equitable distribution. Equality of treatment of equals is equitable2
The determination of whether rehabilitative or permanent periodic alimony should be awarded in a particular case depends, first, on the determination of a question of fact, i.e., whether the spouse has the present or potential ability of self-support and, second, on the correct application of the legal principles involved in the conceptual basis for rehabilitative alimony and permanent periodic alimony.
If in this case the marital home sold for $100,000 ($10,000 below its appraised value), after the $29,000 mortgage and the $4,000 life insurance loan is reрaid and the balance of $67,000 is divided equally, the wife‘s share, $33,500 plus the approximately $19,700 received from the distribution of other assets, would equal about $53,200 in liquid assets, which, when invested, will yield a substantial return to augment the wife‘s own earnings. In addition the wife owns her own business and one-half of a remainder interest in a condominium and other separate property. There is substantial competent evidence of the wife‘s ability to support herself. She has more formal education than her husband and can attain an accоunting degree in a few years. She is 46 years old, is in good health, has the ability to run her own business, and does not have the impediment of minor children. This seems to be an ideal case for rehabilitative rather than permanent alimony. Support alimony does not havе for its purpose the equalizing of the individual and different earning abilities of the parties.
This court has recently considered at length the purposes of rehabilitative alimony and permanent periodic alimony and held that where, as here, a spousе has the capacity or potential for self-support, rehabilitative alimony and not permanent periodic alimоny should be awarded. Campbell v. Campbell, 432 So.2d 666 (Fla. 5th DCA 1983).
Accordingly, the award of lump sum alimony and permanent periodic alimony is reversed and this case is remanded to the trial court for consideration of an award of rehabilitative alimony and for further proceedings consistent with this opinion.
REVERSED.
ORFINGER, C.J., and COBB, J., concur.