IRWIN BARRY GINSBURG, APPELLANT/CROSS-APPELLEE,
v.
SHEILA WEINSTEIN GINSBURG, APPELLEE/CROSS-APPELLANT

Fla. 1st DCA | 1992-12-16
No. 91-02970
BARFIELD and MINER, JJ., concur.
610 So. 2d 655 Florida District Court of Appeal, First District (1992) Positive Treatment
Cited by 10 cases

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Synopsis

The court reviewed a dissolution of marriage and equitable distribution, addressing appeals regarding permanent periodic alimony, rehabilitative alimony, health insurance liability, and distribution of marital assets including retirement benefits.


Holding

The court held that the permanent periodic alimony award must be remanded for reconsideration based on the husband's ability to pay, as the current award exceeds his financial capacity.


Headnotes

[1] An award of permanent periodic alimony must consider the payor spouse's ability to pay.

[2] Rehabilitative alimony is appropriate only when the recipient spouse has the potential to become self-supporting.

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Facts & Procedural History

Following a dissolution of marriage, the trial court awarded permanent periodic alimony, lump-sum rehabilitative alimony, and directed the husband to …

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Opinion of the Court
BOOTH, Judge.

BOOTH, Judge.

This cause is before us on appeal and cross appeal from a dissolution of marriage and equitable distribution of marital assets. Appellant contends, inter alia, that the trial court erred in: (1) awarding $1,000 per month in permanent periodic alimony; (2) exposing him to unlimited liability for health insurance coverage; and (3) awarding $8,400 in lump-sum rehabilitative alimony. Appellee/cross-appellant contends, on cross appeal, that the trial court erred in: (1) failing to distribute appellant’s retirement benefits; and (2) failing to require appellant to pay attorney fees. The final order and amended final order awarded the wife $1,000 in permanent periodic alimony and $8,400 in lump-sum rehabilitative alimony; directed the husband to maintain a life insurance policy in the amount of $100,000 to secure the alimony provision (premiums not to exceed $100 per month); directed the husband to maintain health insurance under his Cobra policy for one year and Florida Comprehensive Health Insurance thereafter; awarded the wife $42,502 as her interest from the sale of the marital residence; awarded the husband $25,702 as his interest in the house; awarded the wife a $20,000 certificate of deposit; directed the husband to be responsible for the joint credit card debts; and directed that each party be responsible for his or her own attorney fees.

I.PERMANENT PERIODIC ALIMONY

The wife’s amended financial affidavit reveals that she has a proven monthly need of $1,562.1 There was considerable evidence that the wife is disabled and has a genuine need for financial support. The parties had been married for 26 years and had a comfortable life-style.2 The evidence is, however that the husband does not have the present ability to pay what the court ordered.

The husband has a net monthly income of $2,8343 and net monthly expenses of $2,400. After paying his expenses, which include $513 in court-ordered payments for marital debts, the husband is left with approximately $434 per month. From this amount, the husband is required to pay $1,000 monthly in permanent periodic alimony, $100 monthly for life insurance premiums, and some unknown value for health insurance premiums. The law is clear that the husband cannot be required to maintain the wife’s previous standard of living when the amount required exceeds the husband’s financial capacity. Pirino v. Pirino, 549 So. 2d 219, 220 (Fla. 5th DCA 1989). Therefore, the order must be remanded for an award of periodic alimony which takes into consideration the husband’s ability to pay.

II.REHABILITATIVE ALIMONY

The trial court ordered the husband to pay $8,400 from the proceeds of the sale of the marital home as rehabilitative alimony. The court also found that the wife will never be able to earn an income sufficient to meet her needs. In Mundy v. Mundy, 498 So. 2d 538 (Fla. 1st DCA 1986), this court held:

[Rehabilitative alimony is appropriate only in those instances where the evidence indicates the recipient spouse has the potential or capacity to be rehabilitated “to a financial stature that would permit her to become self-supporting.” [citations omitted] In the instant case, there is no evidence that the wife has any prospect of rehabilitation. On the contrary, the evidence is that she has not held a job for at least ten years, that she cannot drive a car, and that she is legally blind and cannot read braille because of her condition of neuropathy. On these facts, it was error to award rehabilitative alimony, and that award is reversed. See Whitley v. Whitley, 535 So. 2d 623 (Fla. 1st DCA 1988).

III.HEALTH INSURANCE

Even though the court could order the husband to pay a reasonable amount of medical insurance premiums as part of the alimony award, it is error for the court to require that the husband secure medical coverage without setting an amount or lim itation on that obligation. See Inglett v. Inglett, 439 So. 2d 1389 (Fla. 1st DCA 1983); Szemborski v. Szemborski, 530 So. 2d 361 (Fla. 5th DCA 1988); Young v. Young, 600 So. 2d 1140 (Fla. 5th DCA 1992). The award of health insurance benefits must be reversed.

IV. RETIREMENT BENEFITS

The value of the retirement account is not apparent from the record, but it appears that the husband will receive approximately $414 per month when he retires. The value of the retirement account should have been considered a marital asset and distributed in the final order. See Glover v. Glover, 601 So. 2d 231 (Fla. 1st DCA 1992) (all vested and nonvested benefits accrued during the marriage in pension and other retirement accounts are marital assets subject to equitable distribution); and Moon v. Moon, 594 So. 2d 819 (Fla. 1st DCA 1992).

V. ATTORNEY FEES

Attorney fees should be awarded based on need and ability to pay. Portuondo v. Portuondo, 570 So. 2d 1338 (Fla. 3d DCA 1990), review denied, 581 So. 2d 166 (Fla.1991). Due to our resolution of the periodic alimony issue, the award of fees should be revisited on remand.

Accordingly, we reverse the provisions of the equitable distribution and alimony plans and remand for proceedings consistent herewith. The trial court may take additional testimony as may be needed for resolution of these issues.

BARFIELD and MINER, JJ., concur. . The financial affidavit indicates the following:

Net monthly income $ 120 Less net monthly expenses — 1,682 Total monthly loss (1,562)

. In previous years, the husband’s earnings were considerably higher, and the wife’s parents contributed to her support. There is no contention that the husband’s present reduced financial circumstances are not genuine.

.The husband’s net monthly income is calculated as follows:

Net pay year-to-date $22,527 Plus draw received in advance 5,000 27,527 Less wages earned prior to 1-1-91 2,016 25,511 Divided by number of months _9 Net monthly income $ 2,834

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Citator

Cited By

  • Beers v. Beers, 724 So. 2d 109 (Fla. 5th DCA 1998)
    …se an award of alimony upon the ability to pay the award as well as the recipient’s financial needs in light of the standard of living enjoyed during the marriage. O’Neal v. O’Neal, 410 So. 2d 1369 (Fla. 5th DCA 1982); see also Ginsburg v. Ginsburg, 610 So. 2d 655 (Fla. 1st DCA 1992). Considered in this context, the “standard of living” factor clearly passes constitutional muster. II.MOTIONS TO DISQUALIFY In the motion to disqualify filed in August, 1995, the former husband alleged that he had submitted an…
  • Miller v. Blair A. Miller, 707 So. 2d 419 (Fla. 4th DCA 1998)
    …award that exceeds his financial ability); Chereskin v. Chereskin, 665 So. 2d 1133 (Fla. 5th DCA 1996)(reversing final judgment which required payments by husband for support that left him only $250 per month for his expenses); Ginsburg v. Ginsburg, 610 So. 2d 655 (Fla. 1st DCA 1992). With respect to the award of temporary attorney’s fees and costs, yet again we unfortunately see a case where the attorney’s fees sought to be imposed are clearly disproportionate to the complexities of the case and the financ…
  • Guralnick v. Guralnick, 645 So. 2d 1097 (Fla. 4th DCA 1994)
    …provision of the final judgment which requires husband to provide medical insurance for his former wife. While it was proper for the court to require medical insurance, there must be a monetary limitation on the obligation. See Ginsburg v. Ginsburg, 610 So. 2d 655, 657 (Fla. 1st DCA 1992) and cases cited therein. See also, Gay v. Gay, 573 So. 2d 180, 181 (Fla. 2d DCA 1991). Here there was no limitation. We therefore reverse that aspect of the judgment and remand for the trial court to [*1098] set a limitati…

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