Appellate Court trends in rehabilitative alimony.

• Author: Ho, Victoria M.
• Position: Florida

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.

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.

Background

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. [sections] 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)

Rehabilitative Plans

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...