602 So. 2d 591 | Fla. Dist. Ct. App. | 1992
Dissenting Opinion
dissenting.
I respectfully dissent. The modification of a permanent alimony award is a difficult case to appeal because the reviewing court must give the trial judge’s exercise of discretion a broad range
The trial judge found the former husband could afford to pay an increase in support. His gross income had substantially increased since 1983 (the time of the dissolution decree) from $46,404.80 to $81,-984.60 in 1990 (the time of the modification hearing). When the original dissolution judgment was appealed to this court,
This record suggests two reasons for the former wife’s decline from modest comfort to insolvency. The first is that the original level of alimony awarded her was inadequate. She was forced to sell the marital home (three bedrooms with a pool) which had been awarded to her by way of equitable distribution, because it was in bad repair and she could not afford to maintain and keep it in a habitable condition. She used some of the proceeds to buy a trailer and furniture to go in it, and a new car to replace the ten-year-old one she had driven during the parties’ marriage. She put the balance (some $17,000) in a savings account in 1985. Since that time, she has had to draw on her savings to pay her living expenses. That sole capital resource which she was awarded in the dissolution judgment has now been exhausted down to the last $500.
The second reason the former wife has met with such fiscal adversity is that she fell and broke her hip in 1989, and her shoulder in 1986. Due in part to a preexisting health problem, moderately severe osteoporosis, her medical and hospital bills stemming from those injuries exceed $45,-000. She has no resources or income to make even partial payments on that extensive debt. She is being dunned by debt collectors and threatened with lawsuits.
Since 1983, the former wife’s medical condition has continued to deteriorate. She has a lamentably long litany of health and physical problems. At the time of the dissolution, she had osteoporosis and kyphosis (hunchback) and deafness. These conditions have worsened. She now has poor eyesight, loss of ability to fully raise her right arm above shoulder level, one leg shorter than the other due to the hip fracture (which requires her to wear a built-up shoe), arthritis in her knees and back, pulmonary problems partly due to her deteriorated spine, and chronic pain. She has gone from being “unemployable” in 1983, although competent to care for herself in her home, to being barely ambulatory in 1990, unable to walk without a cane or walker, unable to bathe herself and wash her own hair, or do any housework or laundry. Dr. Glenn, the former wife’s physician-orthopedist, described her in 1990 as “completely and totally disabled since 1988.” How much longer she will be able to live, unassisted and alone in her trailer home, appears problematic.
Based on this scenario, the trial judge found there had been a substantial change in circumstances since 1983 and 1985, and that an increase in permanent alimony should be awarded. I agree. But I question the increase of only $200 per month.
The $200 increase likely came from the former husband’s argument that the former wife was meeting all of her day-to-day expenses on her $850 per month alimony payment, plus an average withdrawal of $200 per month from her savings. However, those day-to-day expenses of living do not include any monies for repair of her car,
In attempting to rationalize the trial judge’s $200 per month increase, I conclude there are possibly two grounds. First, the former wife’s financial affidavit was inaccurate in some regards, and exaggerated her expenditures in others. In dissolution cases, this is not unusual, but it tends to harm the credibility of the party proffering such evidence. In this case, the discrepancies in expenses perhaps totalled $200 per month, at the most. Backing those out, the former wife’s bare living expenses totalled approximately $1,050 per month. But this figure still does not include any funds for the purposes listed above.
The second possible reason for such a low award in this case is that the trial judge thought the former wife was substantially to blame for her hip and shoulder injuries, which had created most of her $45,000 medical and hospital debt and had increased her physical handicaps. The record suggests that the former wife was an alcoholic in 1983 and has continued to abuse alcohol through date of the hearing on modification. When she broke her hip, she had a B.A.L. of .252. She admits she drinks two six-packs of beer per week. One doctor testified alcoholism could make osteoporosis more severe. The former wife has not sought counseling or rehabilitation, claiming insufficient funds. But all the medical witnesses who testified in 1990, as well as 1983, said that the cause of osteoporosis (a decrease of bone mass), which is the former wife’s primary health problem, is unknown, and that it is irreversible and probably progressive.
The trial court may also have thought the former husband should not be required to pay any of the 1986 and 1989 $45,000 medical and hospital debt because the former wife failed to purchase medical insurance. In the final judgment the court rebuked her because she did not purchase medical insurance in 1987, when she still had a few thousand dollars left in her savings account. A close look at the testimony persuades me this is an unrealistic expectation.
The only testimony in the record was that the former wife got a quote of $220 per month for medical insurance in 1985. She did not testify as to any quote or offer in 1987. In 1985, the $150 allotment was clearly insufficient to pay for the insurance and she testified she could not then afford it.
Had the former wife spent $220 per month from her savings to buy medical insurance, commencing in 1985 when she had a total “nest egg” of $17,000, she would have spent $10,540 on insurance over that time period, until her hip injury in 1989. However, since she was also required to draw down $200 per month to meet ordinary living expenses or $2,400 per year, her savings would have been completely exhausted before her hip injury in 1989. Her situation would not have been any different then as it is now. She would have had no current medical insurance at the time of her 1989 fall. However, her savings account would have been completely exhausted by mid-1988.
I conclude that although the former husband should not be burdened with the former wife’s horrendous medical debts, based on the “law of the case”, since he has the ability to do so, he should be required to support her in a manner commensurate with her current needs and a modest lifestyle. Such an award should include all categories of her needs, not just the day-today ones. For example, some allotment should have been made for car repairs, assisted-living costs, taxes, replacement of needed medical equipment such as hearing aides, eye glasses, back brace, raised shoe, and pest control and maintenance of her trailer and lot. Even with a $200 increase in her alimony award I think this case is a perfect illustration of one spouse passing from relative “prosperity to misfortune.” Canakaris, 382 So.2d 1197, 1204. I would remand for an award which encompasses all of the former wife’s current basic household and medically related needs. See Walter v. Walter, 464 So.2d 538 (Fla.1985); Gibson v. Gibson, 596 So.2d 1223
I would also make an award of appellate attorney’s fees in this case to the former wife, and remand to the trial court to determine the amount. Although the former wife did not file a separate motion apart from her initial brief,
If “merit” and “good faith” are the proper criteria for awarding appellate fees in dissolution cases to a needy spouse,
. Canakaris v. Canakaris, 382 So.2d 1197 (Fla.1980).
. Miller v. Miller, 466 So.2d 356 (Fla. 5th DCA 1985).
. Miller v. Miller, 511 So.2d 1007 (Fla. 5th DCA 1987).
. Hamlet v. Hamlet, 583 So.2d 654 (Fla.1991); Walter v. Walter, 464 So.2d 538 (Fla.1985); Canakaris v. Canakaris, 382 So.2d 1197 (Fla.1980).
. The former wife proffered a current $500 estimated bill for repairs on the car.
. The proper method to seek appellate attorney's fees pursuant to Florida Rule of Appellate Procedure is to file a separate motion no later than the time for service of the reply brief. Florida Department of Commerce, Division of Risk Management v. Davies, 379 So.2d 1313 (Fla. 1st DCA 1980).
. Miller v. Miller, 586 So.2d 1315 (Fla. 5th DCA 1991) (Sharp, W., J., dissenting.)
. Id.
. Miller v. Miller, 586 So.2d 1315, 1317 (Fla. 5th DCA 1991) (Sharp, W., J., dissenting); Thornton v. Thornton, 433 So.2d 682 (Fla. 5th DCA), rev. denied, 443 So.2d 980 (Fla.1983); Dresser v. Dresser, 350 So.2d 1152 (Fla. 1st DCA 1977).
. Report of Florida Supreme Court Gender Bias Study Commission, Executive Summary, at p. 6 (1990).
Lead Opinion
AFFIRMED. See Canakaris v. Canakaris, 382 So.2d 1197 (Fla.1980). See also Bedell v. Bedell, 583 So.2d 1005 (Fla.1991); Hamlet v. Hamlet, 583 So.2d 654 (Fla.1991); Marcoux v. Marcoux, 464 So.2d 542 (Fla.1985); Walter v. Walter, 464 So.2d 538 (Fla.1985); Cason v. Cason, 592 So.2d 1277 (Fla. 5th DCA 1992).
