VERESTA L. GRANT, APPELLANT,
v.
WILLIE TRUMAN GRANT, SR., APPELLEE

Fla. 1st DCA | 1992-07-29
No. 91-2864
SHIVERS and MINER, JJ., concur.
603 So. 2d 68 Florida District Court of Appeal, First District (1992) Positive Treatment
Cited by 4 cases

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Synopsis

Veresta Grant appealed a final divorce judgment challenging the trial court's awards of rehabilitative alimony, relief of support arrearages, division of assets excluding a nonvested retirement, and attorney's fees. The appellate court reversed on multiple issues and remanded for further proceedings to award permanent alimony, determine support arrearages, distribute the appellee's retirement benefits, and recalculate attorney's fees with proper findings.


Holding

The court held that: (1) permanent periodic alimony was appropriate where the evidence showed no capacity for rehabilitation; (2) the trial court erred in relieving the support obligation because the appellee failed to rebut the presumption of ability to pay; (3) nonvested retirement benefits are subject to equitable distribution and must be included; and (4) attorney's fees awards require specific findings regarding hourly rate, hours expended, and enhancement factors.


Headnotes

[1] A trial court errs in awarding rehabilitative alimony when the evidence does not indicate the recipient spouse has the ability to be self-supporting or a substantial capa…

[2] A presumption of ability to pay arises from an unchallenged support order, and this presumption can only be overcome by demonstrating intervening circumstances beyond the…

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Key Quotes

“Because the evidence does not indicate that she has the ability to be self supporting or any substantial capacity for rehabilitation, we conclude that the trial court erred in awarding her rehabilitative, rather than permanent, periodic alimony.”

Establishes the standard for permanent alimony: when evidence shows no capacity for rehabilitation or self-support, rehabilitative alimony is inappropriate.

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Facts & Procedural History

Veresta Grant and Willie Truman Grant, Sr. were involved in a dissolution of marriage proceeding. The trial court awarded Veresta rehabilitative alimo…

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Opinion of the Court
ALLEN, Judge.

ALLEN, Judge.

Veresta Grant appeals the final judgment which dissolved her marriage, distributed the marital assets, and made various awards. We affirm in part, reverse in part, and remand for further proceedings.

The appellant first argues that the court erred in awarding rehabilitative, rather than permanent, alimony.

The record in this case reveals neither any previous skills the appellant could redevelop nor the potential for developing new supportive skills. Because the evidence does not indicate that she has the ability to be self supporting or any substantial capacity for rehabilitation, we conclude that the trial court erred in awarding her rehabilitative, rather than permanent, periodic alimony. See, e.g., Lanier v. Lanier, 594 So. 2d 809 (Fla. 1st DCA 1992); Akers v. Akers, 582 So. 2d 1212 (Fla. 1st DCA), rev. denied, 592 So. 2d 679 (Fla.1991); Wolff v. Wolff, 576 So. 2d 852 (Fla. 1st DCA 1991); Askegard v. Askegard, 524 So. 2d 736 (Fla. 1st DCA), rev. denied, 536 So. 2d 243 (Fla.1988).

On remand, the trial judge is directed to enter a new order which awards alimony on a permanent, periodic basis.

The appellant next argues that the trial court erred in relieving the appellee of the obligation of paying $1145 in support payments delinquent under the temporary support order. “When an order to pay support is entered and goes unchallenged, a presumption of the ability to pay arises which carries forward.” Phillips v. Phillips, 588 So. 2d 9, 10 (Fla. 2d DCA 1991).

The appellee never challenged the order or moved for a modification of its terms. At the final hearing, he never attempted to "dispel the presumption of ability to pay by demonstrating that, due to circumstances beyond his control which intervened since the time the order directing him to pay was entered, he no longer had the ability to meet his support obligations.” Bowen v. Bowen, 471 So. 2d 1274, 1278-79 (Fla.1985).

See also Bingemann v. Bingemann, 551 So. 2d 1228, 1233 (Fla. 1st DCA 1989).

Although the appellee testified that he had paid some of the bills of the marital home and given his daughter spending money during the pendency of the dissolution proceedings, no findings on the amount or effect that these expenditures had upon the appellee’s obligations to comply with the temporary support order were made. Because extinguishment of the appellant’s claim to support arrearages is not supported by the evidence, we reverse on this issue. On remand, the judge should make a determination of the amount of arrearag-es due and enter an additional judgment accordingly. See Roffe v. Roffe, 404 So. 2d 1095, 1097 (Fla. 3d DCA 1981).

The appellant also challenges the court’s division of assets. With the exception of the court’s failure to consider the appellee’s retirement, the court’s division of property is equitable. According to testimony presented below, the appellee’s retirement had not vested, and thus he argues that it was not subject to equitable distribution. However, we have held:

[A]n employee spouse has a contractual interest in a nonvested pension, [and therefore] the nonemployee spouse, through his or her contributions to the marital relationship, is entitled to a proportionate share in such pension.

DeLoach v. DeLoach, 590 So. 2d 956, 961 (Fla. 1st DCA 1991). Accordingly, the trial court should have awarded the appellant her proportionate share of the appellee’s retirement. The record contains no evidence regarding the present value of the pension or when the appellee would be entitled to receive benefits. We therefore remand for a determination of these issues and for an appropriate award to the appellant. See DeLoach.

Next, the appellant argues that the trial court awarded an inadequate amount as attorney’s fees. The law is “well established that the trial court must set forth specific findings concerning the hourly rate, the numbers of hours reasonably expended and the appropriateness of reduction or enhancement factors.” Hoffay v. Hoffay, 555 So. 2d 1309, 1310 (Fla. 1st DCA 1990). In light of the trial court’s failure to provide such findings, we reverse on this point with directions that the court set forth the basis for the amount of attorney’s fees awarded.

Appellant’s remaining arguments do not demonstrate reversible error. Accordingly, we affirm in part, reverse in part, and remand for further proceedings consistent with this opinion.

SHIVERS and MINER, JJ., concur.


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Citator

Cited By

  • Echols v. Elswick, 638 So. 2d 581 (Fla. 1st DCA 1994)
    …ome of $660. But rehabilitative alimony may not be awarded where there is no evidence that the recipient is seeking to redevelop previous job skills or train for new ones. See Canakaris v. Canakaris, 382 So. 2d 1197, 1202 (Fla.1980); Grant v. Grant, 603 So. 2d 68 (Fla. 1st DCA 1992). Because no such evidence was presented in this case, the award of rehabilitative alimony must be reversed. In denying the appellee permanent periodic alimony the court cited the appel [*582] lant’s poor health and the appellee’…
  • Ford v. Ford, 700 So. 2d 191 (Fla. 4th DCA 1997)
    …3). VACATING THE HUSBAND’S ARREAR-AGES OF TEMPORARY ALIMONY We also reverse that portion of the final judgment vacating the husband’s ar-rearages of temporary alimony in the absence of any motion seeking to vacate those arrearages. Grant v. Grant, 603 So. 2d 68 (Fla. 1st DCA 1992). The former wife’s right to the temporary alimony payments vested, and could not be altered by the trial court absent compelling circumstances not present here. Smithwick v. Smithwick, 343 So. 2d 945, 947 (Fla. 3d DCA 1977). EQU…

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