Longo v. Longo

533 So. 2d 791, 1988 WL 96107
CourtDistrict Court of Appeal of Florida
DecidedSeptember 21, 1988
Docket4-86-1597
StatusPublished
Cited by15 cases

This text of 533 So. 2d 791 (Longo v. Longo) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Longo v. Longo, 533 So. 2d 791, 1988 WL 96107 (Fla. Ct. App. 1988).

Opinion

533 So.2d 791 (1988)

Joseph Thomas LONGO, Appellant,
v.
Andrea Ann LONGO, Appellee.

No. 4-86-1597.

District Court of Appeal of Florida, Fourth District.

September 21, 1988.
Rehearing and Rehearing Denied December 1, 1988.

*792 Brian Glick, Boca Raton, and Edna L. Caruso of Edna L. Caruso, P.A., West Palm Beach, for appellant.

Susan J. O'Hara, Palm Beach, Jane Kreusler-Walsh and John Beranek of Klein & Beranek, P.A., West Palm Beach, for appellee.

EN BANC

Rehearing and Rehearing En Banc Denied December 1, 1988.

HERSEY, Chief Judge.

The husband in this dissolution action appeals the final judgment. We reverse and remand for correction with regard to: (1) the husband's salary, (2) the value of the husband's pension plan, (3) the husband's obligation to maintain life insurance for the wife's benefit, and (4) the husband's obligation to pay all of the minor children's medical expenses. We also reverse the award of rehabilitative alimony to the wife. Finally, we remand for a redetermination of equitable distribution and for reconsideration of the issue of whether the wife is entitled to attorney's fees.

The final judgment awarded residential custody of the two minor children to the wife and the husband was ordered to pay child support of $500 per month per child. The husband was also ordered to provide health and dental insurance for the minor children and was required to pay all medical, dental and orthodontic expenses not covered by insurance. The wife was awarded the husband's interest in the marital home, three automobiles, permanent periodic alimony of $1,000 per month and rehabilitative alimony of $600 per month for twenty-four months. The husband was to retain his interest in his pension plan and his stock in IBM, and the parties were to divide all personal property located in the marital home. The husband was ordered to obtain a $100,000 life insurance policy (naming the wife as beneficiary) to guarantee the alimony and child support awards. The husband was also ordered to pay the wife's attorney's fees in the amount of $10,000.

There was undisputed evidence that the husband's monthly gross salary from his employment as an engineer at IBM was $4,707. The trial court erred, therefore, in finding that the husband earns $4,974 per month.

As previously noted, the wife was awarded rehabilitative alimony in the amount of $600 per month for twenty-four months. We conclude, however, that the record does not support an award of rehabilitative alimony. The principal purpose of rehabilitative alimony is to establish the capacity for self support of the receiving spouse, either through the redevelopment of previous skills or by providing the training necessary to develop potential supportive skills. Canakaris v. Canakaris, 382 So.2d 1197 *793 (Fla. 1980). Rehabilitative alimony "should be limited in amount and duration to that necessary to maintain the recipient through training or retraining." Atkins v. Atkins, 380 So.2d 522, 523 (Fla. 4th DCA), rev. denied, 389 So.2d 1107 (Fla. 1980).

Although the wife was a homemaker during most of the marriage and had only a high school education, she testified that she was currently employed as the manager of the tennis pro shop at St. Andrews Country Club in Boca Raton, that she had been so employed for three years and that she intended to continue that employment. Her gross yearly salary in that position is approximately $20,000, so she has some capacity for self support. The wife further testified that she had a 42% disability due to back trouble but the ailment apparently does not affect her ability to perform her job. There was no evidence that the wife intended to pursue any type of training or further education. Accordingly, the award of rehabilitative alimony was not justified. Here, unlike in Bridges v. Bridges, 506 So.2d 1047 (Fla. 4th DCA), rev. denied, 519 So.2d 986 (Fla. 1987), the circumstances do not warrant an award of rehabilitative alimony in order to do equity between the parties or to provide a "transition period" for the wife.

The wife was awarded the husband's interest in the home as lump sum alimony in order to achieve equitable distribution. The parties estimated that the value of the marital home was between $225,000 and $250,000, with an outstanding mortgage of $80,000. The husband now contends that this award thwarted the goal of equitable distribution, leaving him shortchanged. We agree.

First, the value of the husband's pension was incorrectly calculated, giving credit for future and uncertain employment. See Diffenderfer v. Diffenderfer, 491 So.2d 265 (Fla. 1986). Moreover, even assuming that the value of the pension was correct, the ultimate distribution of assets left the wife with almost twice as much as the husband.

"[M]arital assets should be distributed equally unless some showing is made of a disparity in the contributions of the parties to the marriage, or unless some other relevant factor justifies disparate treatment." Woodard v. Woodard, 477 So.2d 631, 633 (Fla. 4th DCA 1985), rev. denied, 492 So.2d 1336 (Fla. 1986).

The final judgment states that the lump sum alimony award of the marital home was justified by the wife's contributions to the marriage, the difference in the parties' earning capacities and the husband's separate assets. Although we agree that these factors may have justified some disparity, we conclude that they did not justify the degree of disparity which resulted here.

The wife concedes that the court awarded her $10,000 in attorney's fees although she presented no evidence as to the amount of fees she incurred. Since we have concluded that the case should be remanded for reconsideration of equitable distribution, we also conclude that the issue of whether attorney's fees for the wife are warranted should also be revisited.

The trial court ordered child support to continue until the children attained their majority, and permanent alimony to continue until the wife's remarriage, and ordered the husband to "pay for and provide evidence of said payment of life insurance guaranteeing the support provisions herein and naming the Wife as beneficiary in the amount of $100,000.00" (emphasis added). The husband now contends that this award was error, as it constituted post-mortem alimony and child support. We agree.

Alimony was initially conceived as a necessary corollary to the common-law obligation of a husband to provide his wife with the necessities of life. Thus, alimony terminated upon the death of the husband as did the husband's original duty of support. This is a "well established rule," characterized as being "clearly established law" and "settled" law. O'Malley v. Pan American Bank of Orlando, 384 So.2d 1258 (Fla. 1980).

This proposition and the statutes which implemented its underlying policy went virtually unchallenged until those statutes were recently amended. Laws 1984, chapter *794 84-110, section 1, added the following to section 61.08, Florida Statutes:

(3) To the extent necessary to protect an award of alimony, the court may order any party who is ordered to pay alimony to purchase or maintain a life insurance policy or a bond, or to otherwise secure such alimony award with any other assets which may be suitable for that purpose.

A similar amendment was made to section 61.13(1), pertaining to child support. Some courts have taken the position that the effect of the amendments is to permit post-mortem alimony and child support while others have taken a contrary position.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Perez v. Perez
882 So. 2d 537 (District Court of Appeal of Florida, 2004)
Smith v. Smith
811 So. 2d 840 (District Court of Appeal of Florida, 2002)
Moorehead v. Moorehead
745 So. 2d 549 (District Court of Appeal of Florida, 1999)
Spielberger v. Spielberger
712 So. 2d 835 (District Court of Appeal of Florida, 1998)
Lewis v. Lewis
665 So. 2d 322 (District Court of Appeal of Florida, 1995)
Villalva v. Villalva
620 So. 2d 198 (District Court of Appeal of Florida, 1993)
Anttila v. Sinikka
611 So. 2d 565 (District Court of Appeal of Florida, 1992)
Blythe v. Blythe
592 So. 2d 353 (District Court of Appeal of Florida, 1992)
Carr v. Carr
569 So. 2d 903 (District Court of Appeal of Florida, 1990)
Carroll v. Carroll
565 So. 2d 894 (District Court of Appeal of Florida, 1990)
Hall v. Hall
561 So. 2d 609 (District Court of Appeal of Florida, 1990)
Rezner v. Rezner
553 So. 2d 334 (District Court of Appeal of Florida, 1989)
Bobb v. Bobb
552 So. 2d 334 (District Court of Appeal of Florida, 1989)
Keith v. Keith
537 So. 2d 138 (District Court of Appeal of Florida, 1988)
Privett v. Privett
535 So. 2d 663 (District Court of Appeal of Florida, 1988)

Cite This Page — Counsel Stack

Bluebook (online)
533 So. 2d 791, 1988 WL 96107, Counsel Stack Legal Research, https://law.counselstack.com/opinion/longo-v-longo-fladistctapp-1988.