Vandergriff v. VandergriffVandergriff v. Vandergriff
The issue in this dissolution action is whether the final judgment has made adequate and reasonable financial and property arrangements for the wife.
The specific questions on appeal relate to permanent alimony as opposed to rehabilitative alimony, and the sufficiency of it, the length of time for the wife‘s use of the marital home, the personal property award to the wife, provisions for the wife‘s health insurance, and the failure of the trial court tо dispose of the parties’ savings plan account. We affirm in part and reverse in part. We affirm the provisions as to the wife‘s use of the marital home and the personal property award to the wife. We reverse and remand the alimony award, the provisions for the wife‘s health insurance, and the failure to divide and dispose of the parties’ Telco savings plan account.
The parties were married over 32 years. Although the wife received a degree in elementary education, her teaching certificate long ago lapsed. The wife has stayed home to raisе the parties’ three daughters and has not been gainfully employed for 26 years. Her activities outside the home have included teaching at church school, helping with Southern Bell functions, and family/cоmmunity service as a leader in Brownie and Girl Scouts, a room mother, a teacher‘s helper, an unpaid volunteer teacher and lunchroom helper.
The husband has been employed 34 yeаrs with Southern Bell, is now an associate manager earning an annual gross salary of $36,000 — $37,000 ($3,133.34 per month). The marital home is unencumbered. The husband owes $6,500 to his credit union.
The final judgment dissolving the marriage awards custody of the 15-year-old minor child to the wife, requires the husband to pay the wife $180 monthly for the child‘s support and to pay the child‘s Catholic high school tuition. The judgment orders the husband to pay the wife $300 per month rеhabilitative alimony for a period of three
Exclusive use of the marital home and personal property therein is awardеd the wife until the child attains her majority or until the wife dies or remarries. The husband is required to pay taxes on the marital home and a lot owned by the parties, to make certain home repairs, but to receive credit for all these payments upon sale or disposition of these properties. (Although the record is not entirely clear, it is assumed the marital home is titled in both names.)
The wife makеs a forceful argument for her continued use of the marital home and property therein following the child‘s reaching 18, but we affirm the trial court‘s discretion that the parties’ ownership of the marital home and personal property therein as tenants in common shall cease being subject to the wife‘s exclusive use upon the child‘s majority or the wife‘s remarriage. We do this, confident that upоn remand adequate support provisions will be made for the wife. We note, parenthetically, that husband is to receive credit for taxes and repairs paid by him. We assume this means that, upon sаle or disposition, he will receive credit against the wife‘s share for half the taxes and repairs paid by him.
We turn now to the wife‘s point that she should have been awarded permanent alimony. She shоuld have been. A husband who has been married over three decades to a wife whom he has supported, who has raised his three children, and who has no present ability to support herself, but whom he сan support, should provide her permanent alimony. See Colucci v. Colucci, 392 So.2d 577 (Fla. 3d DCA 1980). Permanent alimony is used to provide the needs and necessities of life to a former spouse as they have been established by the marriаge of the parties. See Canakaris v. Canakaris, 382 So.2d 1197 (Fla. 1980) at 1201. The standard of need for the award of alimony after a marriage of some duration is the standard of living enjoyed during its course. The trial court abused its discretion in awarding rehabilitаtive instead of permanent alimony and in making an inadequate award of only $300 per month. See De Cenzo v. De Cenzo, 433 So.2d 1316 (Fla. 3d DCA 1983). We reverse the rehabilitative alimony award with directions to award an adequate and increased amount of permanent periodic alimony sufficient for the wife‘s support and in accordance with the husband‘s ability to pay.
A part of the wife‘s needs is health care. Although the wife suffers from high blood рressure, allergies, and a back condition, the final judgment makes no provision for the wife‘s health care. The record indicates that upon dissolution the wife will no longer be a beneficiary on thе husband‘s health, hospital and dental insurance policies. Upon remand this portion of the wife‘s needs should be specifically addressed and met.
Upon remand the trial court should also address the status and/or disposition of the Telco savings account.
REVERSED and REMANDED.
ROBERT P. SMITH, Jr., J., concurs and dissents, with opinion.
NIMMONS, J., specially concurs.
ROBERT P. SMITH, Jr., Judge, concurring and dissenting:
I agree with the court‘s opinion that the record as a whole indicates a shortchanging of the appellant wife and that the judgment should be reversed for its failure to make adequate provision for her. I also share the court‘s concern over the amount of alimony awarded, there being no еxplanation in the trial court‘s judgment of the facially inadequate award of $300 per month; and I join my colleagues in calling for reconsideration of the wife‘s health care needs and her clаim to rights in the Telco savings account.
Yet I must respectfully disagree that, as a matter of law, the trial court must be held to have erred in awarding at this time rehabilitative alimony only, and in not awarding permаnent alimony. The significant factor in this judgment, indicating the chancellor‘s purpose more than any other, is
Granted that there is some apparent warrant for an ironclad entitlement to permanent alimony in the Third District‘s decisions cited by my colleagues, I had not understood that this court was wed to the invariable proposition that 32 years of marriage yields to a 52-year-old wife an entitlement to permanent alimony regardless of what seems to be, in appellee‘s legitimate view of the record, her earning capacity and her determination not to exploit it.
Among thе factors to be considered in determining the kind and amount of alimony to be paid is “[t]he contribution of each party to the marriage, including, but not limited to, services rendered in homemaking, child care, education and career building of the other party.”
In these difficult cases, the financial decisions are complex and indivisible. The choice of appropriate provisions invokes the circuit court‘s most sensitive and dispassionate powers of judgment. The appropriate choices of remedies vary with the circumstances. “Only our duty remains constant, which is to conсeive of the alternatives as the chancellor did, if possible, and to affirm if the prescribed course of action is within the range of lawful choices under all the circumstances.” Quick, supra, 400 So.2d at 1299. Since in prinсiple the choice of rehabilitative rather than permanent alimony was at this time a permissible one, in my view, I would sustain that choice and remand the case for further consideration of the amount of alimony and the other issues.
NIMMONS, Judge, specially concurring.
I concur in Judge Shivers’ opinion. In Judge Smith‘s concurring and dissenting opinion, he posits a view of the evidence which he suggests would support the trial court‘s denial of permanent alimony. Had the trial court actually made the kinds of factual findings which such view of the evidence assumes, then I would be inclined to agree that the denial of permanent alimony would not be error. Short of such findings, however, I am of the view that