Appellate Court Trends in Rehabilitative Alimony
Rehabilitative alimony is a tool used by the court to provide financial support
of a limited duration to a spouse whose earning capacity was limited in some way by the marriage. The factors used by the court in determining whether to award rehabilitative alimony are some of the same factors used when deciding a permanent alimony award. However, other factors considered by the court are distinct to the award of rehabilitative alimony. As trends in permanent alimony have changed, we surmised that rehabilitative alimony would be similarly affected.
Our previous article examined trends in permanent alimony.1 So that the articles may be used together, we have organized this article in the same fashion: according to the factors which appellate courts consider when granting alimony awards. As in the permanent alimony article, we caution the reader not to use the generalization in this article in a didactic manner, but rather as an organizational guide. Only cases and trends since 1990 have been analyzed.2
In Canakaris v. Canakaris, 382 So. 2d 1197 (Fla. 1980), Justice Overton wrote:
In considering the appropriate criteria for the award of the different types of alimony, it is important that appellate courts avoid establishing inflexible rules that make the achievement of equity between the parties difficult if not impossible.
The unfortunate result of such an approach is that, although equity may be achieved more readily, attorneys have a hard time predicting what a given court will do with a given set of facts. The purpose of this article is to provide attorneys with arguments which may be used to convince a court to award or deny rehabilitative alimony.
In Canakaris, the Supreme Court of Florida summarized the different types and purposes of rehabilitative and permanent alimony. The court explained that the “principal purpose of rehabilitative alimony is to establish the capacity for self-support of the receiving spouse, either through redevelopment of previous skills or provision of the training necessary to develop potential supportive skills.” Id. at 1202. As with permanent alimony, the award of rehabilitative alimony is based primarily on the financial needs of the recipient spouse and the ability to pay of the payor spouse. According to Canakaris and F.S. §61.08, other factors determining whether alimony is appropriate are the length of the marriage; the standard of living of the marriage; the age of the parties; the earning abilities of the parties; the education of the parties; the health of the parties; and the assets of the parties. In applying these various criteria, the trial court has broad discretion in constructing a judgment compatible with the circumstances of the parties. Canakaris, 382 So. 2d at 1202.
Unlike permanent alimony, there is an additional decision the court makes in determining a rehabilitative alimony award—duration. Duration is determined by the length of the rehabilitative plan,3 age of the children,4 and to some extent, length of marriage.5
The single most important factor the court will consider in determining whether to award rehabilitative alimony is the use of a specific rehabilitative plan. Most of the recent rehabilitative alimony cases reversed on appeal in favor of permanent alimony have been overturned due to the trial court’s failure to make specific findings concerning a rehabilitative plan to justify the order. In Brooks v. Brooks, 678 So. 2d 1368, 1370 (Fla. 1st DCA 1996), the First District reversed the trial court’s order of rehabilitative alimony and awarded permanent alimony where the parties had been married for 20 years. In doing so the court remarked:
An award of rehabilitative alimony should be supported by explicit findings, which address the rehabilitative plan, the objective of the rehabilitation, the cost of the plan and the projected period necessary for the wife to complete her rehabilitation.
In Joseph v. Joseph, 681 So. 2d 888, 889 (Fla. 4th DCA 1996), the Fourth District remanded a trial court’s order of rehabilitative alimony on the grounds that it was inspecific. The trial court awarded the wife school tuition and books for a four-year degree at a Florida state college. The Fourth District reversed, stating:
We remand for the trial court to place additional restrictions on this award. Because the purpose of rehabilitative alimony is to facilitate entry into the job market, we think there needs to be an additional restriction requiring the former wife to take academic courses and receive a four-year degree that will lead to gainful employment. In short, there must be a specific plan by which the wife’s obtaining a four-year degree will result in her economic rehabilitation.
Plans play such an important role that some court rulings have actually been limited to the terms of the plan presented to the court. In Welch v. Welch, 685 So. 2d 895 (Fla. 2d DCA 1996), the trial court awarded the wife all tuition charges incurred during her two-year rehabilitation. The Second District limited the judgment to $17,000, indicating that the rehabilitative plan presented by the wife requested from $12,000 to $17,000 for tuition for her rehabilitation. In Green v. Green, 672 So. 2d 49, 52 (Fla. 4th DCA 1996), the trial court ordered the husband to pay the wife rehabilitative alimony for a period of five years. The Fourth District limited the duration of the award, holding:
The wife in the instant case introduced evidence of a rehabilitative plan which would place her in the job market within two years, with an income substantially in excess of what she was earning prior to the marriage. Under the traditional rationale, five years of rehabilitative alimony is substantially in excess of what is required to make the wife self-supporting.
Length of Marriage
Although enumerated by F.S. §61.08 as one of several factors a court must consider in undergoing an alimony analysis, the length of the marriage does not appear to be a crucial factor in the award of rehabilitative alimony. Although the maxim “the longer the marriage; the less likely rehabilitative alimony and more likely permanent alimony” carries some weight, a more subtle analysis shows that it is the effect of the marriage on a spouse’s career or employment opportunity, rather than the length of marriage, that is determinative. For example, in Schwartz v. Schwartz, 22 Fla. L. Weekly D2247, 1997 WL 586663 (Fla. 3d DCA 1997), the appellate court found that the trial court’s rehabilitative alimony award was appropriate for a marriage which lasted over 26 years. In this case, the wife, in her mid-forties, was employed as a paralegal throughout the marriage. She presented evidence at trial that rehabilitation would enable her to become a pharmacist. Although the length of the marriage was long term, and thus weighing heavily in favor of permanent alimony, the trial court denied permanent alimony and awarded the wife rehabilitative alimony. Affirming the award, the Third District stated that the nature and amount of an award of alimony is within the discretion of the trial court. Id. at 1.
To illustrate further how marriage duration is not controlling in determining rehabilitative alimony, the appellate court in Duttenhofer v. Duttenhofer, 474 So. 2d 251 (Fla. 3d DCA 1985), held that a $7,500 lump sum rehabilitative alimony award was appropriate in a marriage lasting only 10 months. Here, arguably, there was little or no effect that the length of the marriage could have on the wife’s ability to support herself. In support of its decision, the appellate court reasoned: “The fact that the voluntary surrender of a remunerative job for a less remunerative one or none at all is recognized as an equitable factor which may be considered in awarding alimony.” Id. at 253.
However, the length of marriage does have an impact on the burden of persuasion for a rehabilitative alimony award. The burden seems to shift from the payee to the payor to prove the suitability of rehabilitative alimony the longer the duration of the marriage. For example, in Grossman v. Grossman, 622 So. 2d 95 (Fla. 2d DCA 1993), the Second District reversed a trial court’s award of rehabilitative alimony to permanent alimony, to a wife in a 10-year marriage. The appellate court found no evidence in the record that indicated the wife was able to be rehabilitated.
The Fifth District in Kunzweiler v. Kunzweiler, 22 Fla. L. Weekly D1798 (Fla. 5th DCA 1997), came to the opposite conclusion and found that the wife, after only eight months of marriage, was required to present proof of a rehabilitative plan. In vacating the trial court’s award of rehabilitative alimony, the appellate court surmised: “The award of rehabilitative alimony in the instant case is not supported by the evidence. The former wife failed to present to the trial court any plan to accomplish a goal of self-support.”
The obvious conclusion drawn from these cases is that the burden of persuasion falls on the payor spouse in a long-term marriage to convince the court that permanent alimony is not warranted and rehabilitative alimony is appropriate. In a short-term marriage, the burden usually is on the payee spouse to show that he or she is entitled to rehabilitative alimony rather than no alimony at all.
Age of Recipient Spouse
Age is a factor considered by most courts when awarding rehabilitative alimony, but only to the extent that advanced age would preclude rehabilitation. In Echols v. Elswick, 638 So. 2d 581 (Fla. 1st DCA 1994), the appellate court found that the lower court erred in awarding rehabilitative alimony to a 59-year-old spouse until she was to begin receiving Social Security benefits. Although the First District acknowledged that the parties were only married for six years, it stated that the length of marriage should not control to preclude permanent alimony. The appellate court reversed the rehabilitative alimony award and remanded to the trial court to reconsider permanent alimony.
Although courts are more inclined to award permanent rather than rehabilitative alimony to older spouses, “rehab” alimony is awarded in certain instances. In Duck v. Duck, 664 So. 2d 970 (Fla. 4th DCA 1995), the Fourth District reversed the trial court’s denial of any alimony to a 56-year-old wife after approximately 18 years of marriage. The appellate court held that since the wife’s interior decorating business was only “marginally profitable” and evidence at trial indicated she could potentially make a good living at interior design, denial of rehabilitative alimony by the trial court was an abuse of discretion. Id. at 971.
Disparity of Income
Income disparity influences the award of rehabilitative alimony, but seemingly only when other factors encourage either an award of rehabilitative or permanent alimony. In Kesling v. Kesling, 661 So. 2d 919 (Fla. 2d DCA 1995), the Second District reversed an award of rehabilitative alimony and remanded to the trial court to award permanent alimony in an 18-year marriage to a wife with “a history of chronic mental illness.” The husband, a sole proprietor, generated approximately $100,000 a year in income. The court found that the wife had a potential income of $25,000 after rehabilitation. The appellate court reversed the rehabilitative alimony award, id. at 920, reasoning:
This award constitutes reversible error for two reasons. First, there is a disparity between the earning capacities of the parties. The husband has proven himself to be an astute businessman rising from menial labor to ownership of a successful business. . . . These facts alone justify an award of permanent alimony.
Other factors such as the length of marriage and health of the recipient spouse weighed in favor of permanent alimony in this case.
On the other hand, a great disparity in income does not in and of itself require an award of rehabilitative alimony when the recipient does not show a need for rehabilitation. In Shiveley v. Shiveley, 635 So. 2d 1021 (Fla. 1st DCA 1994), the trial court found that the wife was not entitled to rehabilitative alimony after a six-year marriage. Evidence presented at trial indicated that the wife earned her real estate license during the marriage and that she had “no intention of changing careers or obtaining further training or education in her chosen line of work.” Id. at 1023. The wife appealed and argued to the First District that the disparity in income between the parties justified an award of both permanent and rehabilitative alimony. While the appellate court did not find any clear abuse of discretion, it remanded for reconsideration of the alimony award on the grounds that the court may have improperly considered the wife’s income to include gifts given to her by her parents.
Although not a factor specifically mentioned in Canakaris or F.S. §61.08, children have played a significant role in the award of rehabilitative alimony. In Kellerman v. Kellerman, 659 So. 2d 1390 (Fla. 3d DCA 1995), the Third District found that the trial court abused its discretion in awarding permanent alimony to the wife. The appellate court reversed, awarding the wife rehabilitative alimony in the amount of $300 per month for four years, until her youngest child began kindergarten. The appellate court held: “[B]ecause the wife’s earning ability may be diminished by her obligation to care for the parties’ two minor children, a five-year-old and a one-year-old, we find that the award of rehabilitative alimony is appropriate.” Id. at 1391.
In Hunt v. Hunt, 648 So. 2d 764, 766 (Fla. 2d DCA 1994), the Second District affirmed an award of rehabilitative alimony in a 13-year marriage. The appellate court lengthened the duration of the award stating:
[W]e remand with directions to the trial court to order rehabilitative alimony in the amount of $1,000 per month for a period of not less than five years. This duration will permit the wife to devote adequate attention to raising the parties’ children, the youngest of whom is now nine, and to develop her demonstrated business talents.
However, the wife must have been in the homemaker role during the marriage for the children to make a significant impact. Consider Green v. Green, 672 So. 2d 49, in which the Fourth District Court of Appeal reduced a trial court’s award of five years’ rehabilitative alimony to two years, rejecting the wife’s contention that the award was necessary so that she could stay home with her minor children. The appellate court found that the wife never had assumed the role of the homemaker during the marriage. She therefore was not entitled to rehabilitative alimony to assume that role after a divorce.
Health of Recipient Spouse
The poor health of a spouse usually is not a sufficient ground to award rehabilitative alimony. This is more of an indication of a permanent alimony situation. Courts reason that an ill spouse really is not capable of rehabilitation and, as a result, is not entitled to an award. In Grossman v. Grossman, 622 So. 2d 95, while reversing the order of the trial court, the appellate court found that the wife, who was only 31 years old, was not entitled to rehabilitative alimony, but rather was entitled to permanent alimony. The wife suffered from psoriatic arthritis, which worsened during the marriage. Here, the appellate court found that there was no evidence in the record that the wife could be rehabilitated and reversed the award to permanent alimony.
Mental health problems also have been used to deny rehabilitative alimony, in favor of an award of permanent alimony, when such problems preclude the ability to work. In Kesling v. Kesling, 661 So. 2d 919, the Second District found that an award of rehabilitative alimony was improper when evidence at trial indicated that the wife suffered a chronic mental condition which limited her ability to obtain employment.
However, the Kesling court did recognize that the testimony indicated that the wife’s mental condition might improve after the divorce. If so, the appellate court recognized that the wife might be able to find employment and, therefore, “justify an award of rehabilitative alimony in addition to permanent alimony.” The case was remanded to the trial court to determine whether an award of rehabilitative alimony would be appropriate.
This case is complicated by Dr. Knoungold’s testimony that the wife’s mental condition may improve after the stress of divorce is over, that she may be vocationally retrained by further education and, if she is successful in both of these areas, she may be able to find employment. These circumstances may well justify an award of rehabilitative alimony in addition to permanent alimony.
Id. at 920.
This portion of the opinion recognizes that when the ailment is temporary, rehabilitative alimony may be appropriate to assist a spouse in becoming employable.
When financially feasible, when one party cares for the children, precluding work outside the home, the court will apply the parties’ agreements made during the marriage to the consideration of alimony in the divorce. Courts attempt to tailor decisions to the characteristics of a particular marriage and, in doing so, find that the agreements between the parties, whether explicit or implicit, if possible should not be altered by divorce. The use of rehabilitative alimony, rather than permanent alimony, is attractive to achieve this stability because it does not result in a windfall to a youthful recipient spouse. In Rojas v. Rojas, 656 So. 2d 563 (Fla. 3d DCA 1995), the parties were married for 12 years and had two children, one of whom had leukemia. The parties agreed that the wife would take six months from her job to care for their ill son. Although the appellate court found that the trial court had abused its discretion in awarding permanent alimony to a 35-year-old, healthy woman who had the ability to become self-supporting, it reversed and remanded, id. at 565, directing the trial court:
[A]t a minimum, rehabilitative alimony should be awarded to the wife until Alex completes his chemotherapy treatments, and the wife can return to work full-time. Additionally, on remand, should the wife desire to do so, she should be given the opportunity to present evidence regarding job re-training.
Interestingly, in Green v. Green, 672 So. 2d 49, the appellate court recognized that an agreement can be used to limit the award of rehabilitative alimony. In denying the request for rehabilitative alimony, the court found that when the wife agreed to travel with the husband rather than play the role of homemaker to the children during the marriage, she was not entitled to do so after the divorce. The court stated, id. at 52:
The wife also contends that rehabilitative alimony is necessary so that she could stay at home with the minor child for several more years, but as we related in the facts, there was no agreement that the wife not work so that she could stay home with the children. Instead, the agreement made was that the wife would travel and take care of the husband. While there is some authority which would justify an alimony award on the necessity to take care of small children, first there must be a joint agreement as to the role of the wife in forgoing a career to take care of the children.
Marital Standard of Living
Marital standard of living is not itself dispositive in determining a rehabilitative alimony award. However, occasionally awards of rehabilitative alimony in marriages of long duration are overturned in favor of a permanent alimony award due to the spouse’s inability to support himself or herself in a lifestyle commensurate with the standard of living enjoyed during the marriage. In Steinberg v. Steinberg, 614 So. 2d 1127 (Fla. 4th DCA 1993), the appellate court reversed an award of rehabilitative alimony and entered a permanent alimony award. The parties were married at least 18 years. The evidence at trial was that the wife could only expect to make between $300 and $450 weekly. In light of this finding, the appellate court concluded that no evidence was presented showing that the wife will be able to support herself in a lifestyle similar to her previous standard of living. In addition, the First District held in Crowley v. Crowley, 672 So. 2d 597, 599 (Fla. 1st DCA 1996), that a 43-year-old wife in a 19-year marriage was not capable of rehabilitation and an award of permanent alimony was appropriate. The appellate court reasoned:
Although the trial court found that the wife was capable of earning up to $30,000 as a journalist after two years of training, the only evidence established that she could earn $17,000 after such training and that it would be six or seven years before she could earn in the $30,000 range. This was insufficient to maintain the marital standard of living, compelling a conclusion that a rehabilitative award could not serve its purpose of establishing that capacity for self-support.
But, as the length of marriage shortens, it is less likely that the standard of living will affect the award of rehabilitative alimony. In Kremer v. Kremer, 595 So. 2d 214, 215 (Fla. 2d DCA 1992), the Fourth District Court stated:
We recognize that the ex-husband’s income is far greater than that which the wife could reasonably expect to earn and that the standard of living they enjoyed during the marriage was substantially higher than that which the wife could reasonably be expected to sustain for herself without permanent alimony.
Despite this finding, the court reversed an award of permanent alimony and ordered that rehabilitative alimony should be considered by the trial court, stating that the disparity in income between the parties was not the result of the marriage and, therefore, not a factor to be considered in fashioning an alimony award.
Trial courts have great discretion in resolving dissolution proceedings in a manner that will suit the unique needs and desires of the parties. The trial court’s discretion on the issue of an impecunious spouse’s need for rehabilitative alimony is no different. Recognition of the different policies and factors which influence the judicial decision-making process can allow a lawyer to influence those decisions and to be a better advocate for their client’s position.
Close examination of all the factors listed above can be boiled down to a court’s single inquiry: Are the circumstances such that the impecunious spouse can be rehabilitated to become self-supporting? Factors such as age, health, length of marriage, children, standard of living, and income disparity can either encourage or discourage an award of rehabilitative alimony. The marriage can foster opportunities for employment or enhancement of skills6 or discourage a spouse from becoming employable.7 Appellate court trends in this area, such as requiring a specific plan and specific findings, focusing on burdens of persuasion, and enforcing spousal agreements are devices used by courts to assist them in deciding rehabilitative alimony issues fairly and equitably. Awareness of these factors will permit the astute lawyer to convince a trial court whether rehabilitative alimony is appropriate.q
1 Victoria Ho and Janiece Martin, Appellate Court Trends in Permanent Alimony For “Grey Area” Divorces, 71 Fla. B.J. 60 (Oct. 1997).
2 There is one exception, Duttenhofer v. Duttenhofer, 474 So. 2d 251 (Fla. 3d D.C.A. 1985).
3 Green v. Green, 672 So. 2d 49 (Fla. 4th D.C.A. 1996).
4 Kellerman v. Kellerman, 649 So. 2d 1390 (Fla. 3d D.C.A. 1995).
5 Duttenhofer, 474 So. 2d 251.
6 See Shiveley v. Shiveley, 635 So. 2d 1021 (Fla. 1st D.C.A. 1994).
7 See Hunt v. Hunt, 648 So. 2d 764 (Fla. 2d D.C.A. 1994).
Victoria M. Ho is a partner in the Naples law firm of Asbell, Coleman & Ho, P.A. She is board certified in marital and family law and is a fellow in the American Academy of Matrimonial Lawyers, and practices exclusively in the area of marital and family law. Ms. Ho is a graduate of the University of Wisconsin Law School and a magna cum laude undergraduate of the University of Minnesota.
James F. Caudill is an associate with Asbell, Coleman, & Ho, P.A., in Naples. He received his B.A. from Furman University in 1994 and his J.D. from the University of Memphis in 1997.
This column is submitted on behalf of the Family Law Section, Deborah Brandstatter Marks, chair, and Susan G. Chopin and John S. Morse, editors.