In re Marriage of Schmitke

46 Fla. Supp. 2d 196
CourtCircuit Court for the Judicial Circuits of Florida
DecidedDecember 19, 1990
DocketCase No. 88-2041-23
StatusPublished

This text of 46 Fla. Supp. 2d 196 (In re Marriage of Schmitke) is published on Counsel Stack Legal Research, covering Circuit Court for the Judicial Circuits of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re Marriage of Schmitke, 46 Fla. Supp. 2d 196 (Fla. Super. Ct. 1990).

Opinion

OPINION OF THE COURT

Anthony Rondolino, Circuit Judge.

FINAL JUDGMENT OF DISSOLUTION OF MARRIAGE

This cause came on to be heard on the 13th day of September, 1990 and on the 17th and 18th day of October, 1990. The Court had previously entered a Summary Judgment as to Count II of the Wife’s Counterclaim for Battery on the 10th day of May, 1990 and had [197]*197entered a Judgment on the pleadings on the 4th day of June, 1990 as to Count IV and V of the Wife’s Counterclaim.

The Court having received the Affidavit of Residency Witness, having heard the Joint Stipulation of the Parties regarding alimony, having received into evidence the deposition of Dr. Charles Brown, a medical doctor, and having admitted into evidence portions of the deposition of Dr. Thomas Carson, a medical doctor, having heard the testimony of the accountants called by each party, having heard the testimony of the parties, and having received both extensive written and oral argument from the attorneys for each party, the Court makes the following findings of fact, and renders the following judgment:

1. JURISDICTION:

This Court has jurisdiction over the subject matter and the parties herein.

2. IRRETRIEVABLY BROKEN:

The marriage between the parties is irretrievably broken.

3. STIPULATION:

a) The former marital home would be listed immediately with a competent Multiple Listing Service Company. It is expected that the former marital home will sell in three months from October 17, 1990.

b) For six months after the home is sold, or for a total of nine months, from October 17, 1990, if it takes more than three months to sell the home, the Husband will continue to pay alimony in the same amount as he has heretofore paid. The amount of temporary alimony that the Husband has been paying is Two Thousand Six Hundred and Eighteen Dollars ($2,618.00) per month.

c) After the six or nine month period, the Husband shall pay, by Income Deduction Order through the Registry of the Court the amount of Two Thousand Two Hundred Dollars ($2,200.00) per month as permanent, periodic alimony until the death of either party, or the remarriage of the Wife.

d) The Wife may petition this Court for an extension of the nine month period on a showing that, despite a best faith effort, the home has not sold within the time period envisioned.

e) Attorneys fees, suit monies and costs: The Court should retain jurisdiction to address the issue of attorney fees, suit monies and costs both as to entitlement and reasonableness.

The Court finds the stipulation to be reasonable and in the best interest to the parties.

[198]*1984. EQUITABLE DISTRIBUTION:

The parties, who separated on or about March 1, 1988, were married for thirty-four (34) years. During the marriage, the Husband and Wife assumed traditional roles. The Wife was the homemaker, Wife, and primary caretaker of the minor children, while the Husband was the breadwinner. There were three children bom to this marriage, all of whom were adults at the time of the final hearing. The Wife, who is 54 years old, cannot secure employment other than that available at entry level. The Wife desires to work part-time so that she may travel to see her children and grandchildren.

The Husband, who has been employed by British Airways for many years, has a vested interest in his retirement and profit sharing plans.

The Court finds justification in this particular case to distribute the assets and liabilities between the parties in unequal shares. The justification for this equitable distribution is based on the following facts:

A. Ill Health: The testimony in this case demonstrates the Wife has and will continue to have health problems. She has suffered from migraine headaches which have been more severe in recent years. Considerable evidence was presented regarding her difficulties resulting from contracting venereal warts.

The Court notes that the testimony regarding this disease was that it is most commonly transmitted by sexual contact. The Wife testified that she never engaged in sexual relations with anyone except the Husband, yet the Husband admitted to extramarital affairs. Evidence was also adduced that the Wife had, some 25 years ago, contracted gonorrhea from the Husband. Taking all of the facts into consideration, the Court finds that the present health problem was precipitated by the adulterous conduct of the Husband. The Court has been careful in evaluating this matter to avoid any consideration of this conduct in a punitive way. See Noah v Noah, 1124 So.2d 491 (Fla. 1986).

The Court concludes, however, that the disease has diminished- the physical and mental health of the wife. Apart from the numerous painful treatments ultimately leading to her hysterectomy, the testimony indicated she continues to suffer emotional and psychological difficulties from the experience. Additional evidence suggested an increased risk of cancer during her life.

B. Unequal Earning Capacity: The evidence in this case shows the Wife has little, if any, marketable job skills. She continued working after the parties were married for approximately one year but in 1957, upon the birth of their first child, she stopped work. During the last 33 [199]*199years, she assumed the duties of Wife/mother and homemaker with some periods of sporadic employment. The Wife has thus sacrificed her career opportunities, her potential to develop a viable employment skill and to create a position of seniority or job security. The Court is not unmindful of the impact her age may have upon the options available to her in today’s workplace.

C. Unequal Opportunity to Generate Retirement Beneñts: In addition to the above noted disparity relating to earning capacity and opportunity, the Wife is in a position which makes it difficult if not impossible to secure retirement benefits. The evidence shows the family moved from state to state during the marriage facilitating the Husband’s career advancement. His present position will avail not only continued employment income, but also builds an ever increasing retirement benefit. The Wife at her age and health could not (even with considerable vocational training) ever hope to generate a comparable annual retirement benefit.

In considering the above mentioned factors in light of Colucci v Colucci, 392 So.2d 577 (Fla. 3d DCA 1980) and Moore v Moore, 543 So.2d 252 (Fla. 5th DCA 1989), the Court concludes a strict adherence to a 50/50 split of the assets in this case would not be appropriate. The Court finds the wife’s domestic endeavors were at least equivalent to her husband’s wage earning ones, yet she leaves the marriage in an unequal and economically disadvantaged position. This is true even considering the alimony award contained in this Order. The Court notes the Wife will need to obtain employment to supplement the alimony amount to meet her expenses and maintain a standard of living close to that which she enjoyed during the marriage. The circumstances detailed above, particularly regarding her health and security, indicate the Court must do more to balance the scales in this case.

5. Assets and Liabilities:

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Related

Colucci v. Colucci
392 So. 2d 577 (District Court of Appeal of Florida, 1980)
Moore v. Moore
543 So. 2d 252 (District Court of Appeal of Florida, 1989)
Quarles v. Jackson Parish Police Jury
482 So. 2d 833 (Louisiana Court of Appeal, 1986)

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Bluebook (online)
46 Fla. Supp. 2d 196, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-marriage-of-schmitke-flacirct-1990.