Opinion
No. FA03-0400917S
November 20, 2008
MEMORANDUM OF DECISION
The parties appeared in court to argue the defendant, John Studer's postjudgment alimony obligation pursuant to the order of the court, Dolan, J., dated March 12, 2007. The court also considered the defendant's post-judgment motion to modify alimony dated September 10, 2008 and the plaintiff, Beverly Studer's motion for order post-judgment dated August 18, 2008.
The hearing was held on October 14, 2008. The plaintiff filed a post-trial brief on November 7, 2008 in which she opposes the defendant's motion for modification and seeks an order of permanent alimony.
FACTS
The parties were divorced in the state of Florida in 2002 after a 13 1/2-year marriage. The Florida divorce decree recorded on November 8, 2002 provides that the defendant shall pay rehabilitative alimony to the plaintiff in the amount of $1,100 per month from June 10, 2002 until June 10, 2006.
On March 12, 2007, the parties entered into an agreement, which was made an order of the court, wherein the defendant was to pay to the plaintiff unallocated alimony and child support in the amount of $2,500 per month. The agreement, paragraph 4, stated, in pertinent part, that the unallocated payments would continue until June 2008 when the court "shall determine the issues of whether and to what extent the defendant shall be obligated to pay alimony and support and unreimbursed medical expenses."
On June 12, 2008, the hearing on the plaintiff's motion was continued to July 28, 2008, and the court, Owens, J., ordered that the unallocated payments would continue until the July 28, 2008 hearing date. The order further stated that the defendant would receive a credit, if necessary, for any payments made after the expiration of the prior order and the hearing scheduled for July 28, when a new support order was to be set.
On July 25, 2008, the plaintiff filed a motion for continuance, which was granted by the court and the new hearing date was rescheduled for October 14, 2008.
DISCUSSION
The court has carefully considered the evidence, applicable case law, the demeanor and credibility of the witnesses, and the arguments of counsel in reaching the decisions reflected in the orders that issue in this decision.
The Florida Appellate Court in Blumberg v. Blumberg, 561 So.2d 1187 (Fla. 3d Dist.Ct.App. 1989) set forth an in-depth analysis of Florida law on the seminal issue in this case, i.e., whether the plaintiff has achieved "self-sufficiency" and has been "rehabilitated."
The court in Blumberg explained the purpose of awarding rehabilitative alimony at the time the initial judgment of divorce is entered. "The purpose of rehabilitative alimony is to assist a spouse in becoming self-sufficient . . . and hopefully placed in a position to maintain the life-style to which he or she had become accustomed during the marriage." (Citation omitted.) Blumberg v. Blumberg, supra, 561 So.2d 1188. The court also set forth the standard to be followed when determining whether a party is entitled to an extension on a rehabilitative alimony award. Id. "A party seeking an extension of rehabilitative alimony must show only that he or she has not been rehabilitated despite diligent and reasonable efforts. Mann v. Mann, 523 So.2d 804 (Fla. 3d [Dist.Ct.App.] 1988). The recipient is not required to show a substantial change in circumstances. Reid v. Reid, 396 So.2d 818 (Fla. 4th [Dist.Ct.App.]), rev. denied, 402 So.2d 612 (Fla. 1981)." Blumberg v. Blumberg, supra.
"In addition to good-faith efforts toward rehabilitation, the court should consider other factors in determining when it is fair to place the entire burden of support on the economically disadvantaged spouse. The health, disabilities, and job market for the skills of the spouse seeking an extension of the rehabilitative period are relevant factors in determining whether self-sufficiency has been attained. The economically advantaged spouse's ability to continue the alimony payments should also be considered. [ Reaves v. Reaves, 514 So.2d 1147, 1148 (1987])" Blumberg v. Blumberg, supra, 561 So.2d 1189.
The crux of the defendant's argument is that the plaintiff has not taken the proper steps to rehabilitate herself in accordance with the rehabilitative plan set forth in the judgment of divorce. This argument completely negates the work and the sacrifices that the plaintiff has made for the parties' two children, Tiffany and Ashley, both of whom suffer with special needs. As evidenced by her testimony, the plaintiff has made more than a good faith effort to find employment in Connecticut, however, she places the needs of her children ahead of herself.
At the time that the parties were divorced, it was anticipated that the children would continue to improve and be less dependent on their mother. The court finds that this has not been the case. Tiffany has had to endure multiple surgeries. All of these surgeries required numerous trips to the doctor's offices for visits, pre-and post-surgery, blood tests, MRIs, CAT scans, etc, and post operative rehabilitative care. The plaintiff is the party responsible for coordinating and taking Tiffany to all her appointments. In addition, the court finds credible the plaintiff's testimony that Tiffany has frequent accidents of incontinence while attending school, which requires the plaintiff to stop whatever she is doing, and go to Tiffany's school to bring her new clothes and help Tiffany clean herself so that she could go back to class. Therefore, the court finds that it is not realistic to expect the plaintiff to procure employment that would allow her to leave her job each time the school called.
The plaintiff's other daughter, Ashley, requires constant monitoring and care due to her autism. The court finds credible the plaintiff's testimony that Ashley is functioning at the emotional level of a seven (7) year old.
The court finds that the defendant is correct in his assessment in that the children have been doing well. The court finds, however, that the reason that the children are doing so well is due to the care and dedication of the plaintiff to their well being.
As previously stated, the Florida court in Blumberg entered its rehabilitative alimony award based on certain assumptions. These same assumptions are applicable to the plaintiff in the present case. To wit, the plaintiff could receive a degree in medical billing or in medical transcription, thereby becoming self-sufficient. In fact, the plaintiff did attempt to get her degree. However, based on the ongoing issues with the children, it took longer than anticipated. In addition, the plaintiff submitted evidence as to her search for employment and she was not able to obtain employment in this field. Moreover, the plaintiff did not have a computer on which to perform the work, because she could not afford one. As such, she required additional courses to learn the current computer programs. Instead, the plaintiff accepted employment in a field for which she is much better suited, a paraprofessional for autistic children in the Plymouth, Connecticut, school system. There, she is able to use the skills she developed in raising a daughter with autism. Furthermore, she is able to work the same hours that her children are in school and to have the same vacation days. Her ability to earn income in this position is limited, however, as she can only work when school is in session. The plaintiff is behind on all of her bills. The defendant has not paid any support since July 2008. As such, the plaintiff has had to rely on the charity and loans from her family to keep her house out of foreclosure and to keep the utilities on.
As stated in the Blumberg case, "In addition to good-faith efforts toward rehabilitation, the court should consider other factors in determining when it is fair to place the entire burden of support on the economically disadvantaged spouse. The health, disabilities, and job market for the skills of the spouse seeking an extension of the rehabilitative period are relevant factors in determining whether self sufficiency has been attained . . . [S]elf-sufficiency connotes more than subsistence or partial self-support . . . Courts require more than a showing of mere employability or a capacity for subsistence level self-support in order to classify a person as rehabilitated." (Citations omitted.) Blumberg v. Blumberg, supra, 561 So.2d 1189.
Based on the facts since the judgment of divorce, the plaintiff could not have possibly been rehabilitated within the limited time schedule set by the court. Moreover, while the plaintiff has not yet attained the earnings anticipated by the court, the defendant's earnings have continued to grow as of the date the marriage was dissolved. The defendant has the capacity and ability to keep paying support. The plaintiff continues to be at a significant disadvantage financially when compared to that of the defendant.
CONCLUSION
In applying the Blumberg criteria to the facts found herein, the court orders that the defendant shall pay alimony to the plaintiff in the amount of $125 per week terminating on July 28, 2012. Said payments are ordered retroactive to July 28, 2008.