Steinberg v. Steinberg

614 So. 2d 1127, 1993 WL 5850
CourtDistrict Court of Appeal of Florida
DecidedJanuary 13, 1993
Docket91-2042
StatusPublished
Cited by8 cases

This text of 614 So. 2d 1127 (Steinberg v. Steinberg) 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
Steinberg v. Steinberg, 614 So. 2d 1127, 1993 WL 5850 (Fla. Ct. App. 1993).

Opinion

614 So.2d 1127 (1993)

Patricia STEINBERG, Appellant/Cross Appellee,
v.
Richard STEINBERG, Appellee/Cross Appellant.

No. 91-2042.

District Court of Appeal of Florida, Fourth District.

January 13, 1993.
Rehearing and Rehearing Denied April 6, 1993.

*1128 Robert L. Bogen of Alan J. Braverman, P.A., Boynton Beach, for appellant/cross appellee.

Alan E. Weinstein and Frances P. Allegra of Law Offices of Alan E. Weinstein, Miami Beach, for appellee/cross appellant.

Rehearing and Rehearing En Banc Denied April 6, 1993.

HERSEY, Judge.

We affirm that aspect of the final judgment granting a dissolution of the marriage of Patricia Steinberg and Richard Steinberg. We also affirm the continuing mutual restraining order. In all other respects we reverse the judgment finding that the financial provisions for the former wife, appellant herein, are not supported by substantial competent evidence.

The trial court awarded the wife $1,000 per month rehabilitative alimony for six months and $500 per month for thirty months thereafter. The husband's podiatry practice was valued by the court at $30,000, and the court applied the wife's one-half share of that value to offset the parties' joint $30,000 tax liability to the Internal Revenue Service. There were no substantial assets in this marriage other than the husband's practice. The wife neither owned a residence nor an automobile at the time of separation. She worked in her husband's office on and off for approximately ten years without salary, but had not worked for eight years at the time of separation. She suffered severe emotional problems which have been preventing her from gaining employment, in addition to which her meager skills are outdated.

The wife filed an affidavit evidencing monthly expenses in excess of $6,000. There was undisputed testimony that an income of $70,000 per annum could be properly imputed to the husband. An expert testified that the husband's practice should be valued at approximately $100,000. There is competent evidence in the record *1129 that the husband's actual net earnings from his practice far exceeded his income reflected in tax returns. The practice directly paid almost all of the parties' day-to-day living expenses, including rent for the marital domicile and transportation.

The alimony award. It may be that, after a period of psychiatric consultation, the wife may become employable, but certainly not at a wage level sufficient to permit her to independently regain the standard of living she experienced during the marriage. Without a crystal ball we are not prepared to accept the final judgment's premise that one year should be sufficient for that purpose, considering the wife's present situation. Accordingly, we hold that the award is erroneous, both as to character and as to quantity.

"Rehabilitative alimony is used to establish the capacity for self-support in the receiving spouse, either through the redevelopment of previous skills, or provision of training necessary to develop potential supportive skills." Villaverde v. Villaverde, 547 So.2d 185, 187 (Fla. 3d DCA 1989), receded from on other grounds sub nom, Ford v. Ford, 592 So.2d 698 (Fla. 3d DCA 1991); accord Sever v. Sever, 467 So.2d 492, 494 (Fla. 2d DCA 1985). Only if the wife is capable of establishing a standard of living reasonably commensurate with the standard set throughout the marriage, then is an award of rehabilitative alimony proper. Ghen v. Ghen, 575 So.2d 1342, 1344-45 (Fla. 4th DCA 1991); Kanouse v. Kanouse, 549 So.2d 1035, 1036 (Fla. 4th DCA 1989).

In Murray v. Murray, 598 So.2d 310, 312 (Fla. 2d DCA 1992), the Second District, in recognizing the broad discretion a trial court has in determining alimony, also acknowledged that it is the appellate court's responsibility to determine whether the trial court has erred in that determination. The Murray court held that the criteria for establishing the need of one spouse include the parties' earning ability, age, health, education, duration of the marriage, the standard of living enjoyed during the marriage, and the value of the parties' respective estates. Id.

In Bible v. Bible, 597 So.2d 359 (Fla. 3d DCA 1992), the Third District held that the trial court erred in awarding rehabilitative alimony where permanent alimony was necessary for the wife to maintain her support. The Bibles were married for 25 years, and at the time of dissolution, the wife was 44 and employed full time as a secretary/receptionist. Id. at 360. The final judgment awarded the wife the use of the marital home until the minor children reached majority, as well as the expenses associated with the home. Id. When the children reached majority, the home was to be sold and the proceeds split between the parties. The wife also was awarded $1,700 monthly rehabilitative alimony for five years and $680 per child monthly child support. Id.

On appeal, the wife argued that the rehabilitative alimony should have been awarded as periodic permanent alimony, and the Third District agreed. Id. at 361. The court held that rehabilitative alimony is proper only where the evidence suggests that the wife can be rehabilitated to a financial stature that would permit her to become self-supporting commensurate with her married life-style. Id. Accord Lanier v. Lanier, 594 So.2d 809, 811 (Fla. 1st DCA 1992).

The Bible court also held that where the trial court awards rehabilitative alimony where permanent alimony is due, the error is harmful and must be reversed because it places the burden on the wife to come in at the end of the rehabilitative period to prove a significant change in circumstances before modification will be allowed. 597 So.2d at 361. On the other hand, if the wife becomes sufficiently self-supporting after the award of permanent alimony, then the husband may apply for modification of the judgment based on a change of circumstances. Id. While the Bible court found no error in the amount of alimony at $1,700 per month, it did find that the nature of alimony was improper, and reversed for it to be awarded as permanent periodic alimony. Id. at 362. See also Brooks v. Brooks, 602 So.2d 630, 632 (Fla. 2d DCA 1992) (wife is entitled to permanent *1130 alimony where need was clear from record).

In Lanier v. Lanier, the First District held that it was an abuse of discretion not to award permanent periodic alimony and to award only rehabilitative alimony. 594 So.2d at 811. The twenty-five year marriage in that case was dissolved when the wife was forty-three years old and was a full-time student expecting to receive her B.A. in teaching. The final judgment awarded the wife $1,400 monthly rehabilitative alimony for eighteen months and $500 monthly rehabilitative thereafter, for a period of thirty-six months. Id. at 810-11. Both awards would terminate early on the death of either spouse or the remarriage of the wife, whichever occurred first. Id.

The First District held that since no showing was made that the wife would be able to support herself at a standard of living commensurate with that established during the marriage, despite the fact that she will have a job and an income therefrom, there was a need for an award of permanent alimony. Id. at 811. The court held that "although a wife is arguably self-supporting, she need not demonstrate a total dependency to justify an alimony award." Id. Accord Cosgrove v. Cosgrove,

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Cite This Page — Counsel Stack

Bluebook (online)
614 So. 2d 1127, 1993 WL 5850, Counsel Stack Legal Research, https://law.counselstack.com/opinion/steinberg-v-steinberg-fladistctapp-1993.