Capps v. Capps
Capps v. Capps
Opinion of the Court
Affirmed. Canakaris v. Canakaris, 382 So.2d 1197 (Fla. 1980).
Dissenting Opinion
I dissent. The words “Canakaris v. Canakaris ” are not talismans in the presence of which the rights of divorce litigants fade away and disappear. This noteworthy decision, which is slowly, surely and mistakenly being read to mean all things to all people, does not authorize a trial court to resolve as it pleases the financial aspects of broken marriages; does not require us to place our imprimatur on whatever outcome occurs in a dissolution proceeding; and, in the present case, does not sanction an award to the wife of mere rehabilitative alimony when permanent alimony is required.
Beneath the majority’s per curiam af-firmance and the inscription “Canakaris v. Canakaris’’ lies Martha Capps, age forty-four, a homemaker for her husband and two children (now emancipated) during a twenty-three-year marriage. Martha, having spent two years in college a quarter of a century ago, was, at the time of the final hearing and for a year and a half before, employed full time as a bookkeeper, taking home about $6,000 a year. There was no evidence that Martha had any hope of sig
The majority’s affirmance must stand or fall on the correctness of its silent, but obvious, conclusion that the trial court’s action was one within its judicial discretion.
The trial court’s action did not, then, involve an exercise of discretion, but rather the application of an existing, and well-entrenched, rule of law.
Apparently the majority of this court shares the view of the trial court that as long as alimony, by whatever name, is awarded and the award is open to later change or extension, the choice between rehabilitative alimony and permanent alimony is innocuous. This simply is not so.
“The error is harmful even though the wife may at any time during the rehabilitative period petition for a continuation of rehabilitative alimony or a modification to make the alimony permanent. This is so because the burden is placed upon the wife to show significantly changed circumstances before there can be a modification. If she is entitled to permanent alimony it should be awarded*583 now. Later, if the husband can show changed circumstances, either his or hers, he may be entitled to modification.” Garrison v. Garrison, 351 So.2d 1104, at 1105 (Fla. 4th DCA 1977).
See also Colucci v. Colucci, supra.
Since the determination of the amount of $500 was based on the wife’s subsistence needs and did not include any amount for schooling, training, and the like, I would reverse, with directions that the award of $500 per month be made permanent alimony.
.This portion of the final judgment of dissolution read:
“The Petitioner shall pay to Respondent as rehabilitative alimony the sum of $500.00 per month commencing August 1, 1979, and the amount, if any, to be paid, shall be reconsidered after the minor child shall attain age eighteen (18) years. The consideration shall occur within sixty (60) days therefrom upon application by either party.”
The minor child was seventeen at the time of the final judgment.
. I am cognizant of the caveat in Canakaris v. Canakaris, 382 So.2d 1197 (Fla. 1980), that the alimony provision must be reviewed as a part' of the entire award scheme. The present case, • however presents only the narrow issue of rehabilitative versus permanent alimony, both parties conceding that the amount fixed is within tolerable limits, taking into account the total picture.
. See cases collected in Judge Schwartz’s excellent opinion in Colucci v. Colucci, 392 So.2d 577 (Fla. 3d DCA 1980).
Case-law data current through December 31, 2025. Source: CourtListener bulk data.