THOMAS FRASER, APPELLANT,
v.
FAY FRASER, APPELLEE
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Thomas Fraser appeals the alimony provision in a divorce decree that awarded his ex-wife Fay his interest in the marital home and required him to pay $275 monthly in mortgage payments as alimony. The court reverses, finding the award of his property interest unsupported by any showing of necessity and remands for reconsideration of the alimony award.
The court reversed the award of Thomas's property interest in the marital residence because there was no showing of necessity on Fay's part to support such an award. The court also vacated the $275 monthly alimony award and remanded for reconsideration, while remanding the case to allow the trial court to award Fay and the minor children possession of the home and make equitable provisions for mortgage payments, insurance, and taxes.
[1] A lump sum alimony award transferring a party's interest in the marital home is improper without a showing of necessity.
[2] A court may award possession of the marital home to a spouse and children pending further equitable provisions for mortgage, insurance, and taxes.
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Join FLexlaw to unlock all legal intelligence“The award of Thomas Fraser's interest in the marital residence is unsupported by the record in that there is no showing of necessity on Fay Fraser's part.”
Establishes the court's primary basis for reversing the alimony award—the lack of any demonstrated necessity to support the property transfer.
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Join FLexlaw to unlock all legal intelligenceThomas and Fay Fraser were divorced after a twenty-year marriage. Fay was awarded custody of two minor children (ages 17 and 15) and $50 weekly child …
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PER CURIAM.
Petitioner, Thomas Fraser, appeals the alimony provision of a dissolution of marriage judgment.
A final judgment was entered dissolving the bonds of the twenty-year marriage between Thomas and Fay Fraser. Fay Fraser was awarded custody of the two minor children, ages seventeen and fifteen, and child support of $50 per week. In addition, the trial judge entered the following alimony award:
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“4. ALIMONY. By the way of lump sum and periodic alimony, in view of the long standing marriage and disparate earning capacity of the two people, FAY FRASER is awarded THOMAS FRASER’S interest in the house at 3900 S W 122nd Avenue, Miami, Florida, and THOMAS FRASER is ordered to continue to make the payments on the mortgage, being responsible for the mortgage payments to the extent of $275.00 a month, FAY FRASER being responsible for the balance of the monthly payments until such time as the mortgage is retired. In the event that the house is sold before then, or death of the parties, payment shall cease. This order shall remain in effect as long as FAY FRASER is alive and living in the house. If the house should be sold before her death and the mortgage retired, THOMAS FRASER shall continue to make payment in the amount of $275.00 to her per month.”
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We reverse.
The record reflects that Thomas Fraser, a sales manager, earns a net income of approximately $1,000 a month. Other than his undivided interest in the marital residence, he has no major assets. Fay Fraser had worked part-time most of her married life and was currently earning $500 per month. She is in good health.
The award of Thomas Fraser’s interest in the marital residence is unsupported by the record in that there is no showing of necessity on Fay Fraser’s part. See Cummings v. Cummings, 330 So. 2d 134, 136 (Fla.1976); Meredith v. Meredith, 366 So. 2d 425 (Fla.1978). We, therefore, vacate this award and remand the cause to the trial court with directions to (a) award Fay Fraser and the minor children possession of the marital home until further order of the court, and (b) make such other provisions for the payment of mortgages, insurance, taxes, etc. as may be equitable. See e. g. Meredith v. Meredith, 352 So. 2d 72, 73 (Fla. 4th DCA 1977).
In light of the above holding, we set aside the award of $275 as permanent periodic alimony and remand this question to the trial court for reconsideration. This opinion is not to be construed as our passing upon the merits of Fay Fraser’s entitlement to and/or amount of permanent or rehabilitative alimony.
Reversed and remanded.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Cabrera v. Cabrera, 484 So. 2d 1338 (Fla. 3d DCA 1986)…tent with this opinion and for an equitable determination as to which party shall bear the reasonable and necessary expenses associated with the use and upkeep of the marital home. Judge v. Judge, 370 So. 2d 833 (Fla. 2d DCA 1979); Fraser v. Fraser, 368 So. 2d 97 (Fla. 3d DCA 1979). Affirmed in part; reversed in part; remanded for further proceedings consistent with this opinion.…
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Creel v. Creel, 378 So. 2d 1251 (Fla. 3d DCA 1979)…interest in the marital home, which was the primary asset of the parties. See Meridith v. Meridith, 366 So. 2d 425 (Fla.1978); Cummings v. Cummings, 330 So. 2d 134 (Fla.1976); Griffith v. Griffith, 376 So. 2d 418 (Fla.3d DCA 1979); Fraser v. Fraser, 368 So. 2d 97 (Fla.3d DCA 1979). I would therefore reverse that provision of the final judgment and remand the cause for consideration of granting the wife the exclusive possession of the home for the period of her residence there with the minor children. McRae v…
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Desmond G. Judge v. Judge, 370 So. 2d 833 (Fla. 2d DCA 1979)…Hendricks, 312 So. 2d 792 (Fla. 3d DCA 1975). Keeping in mind the other portions of the judgment, the court should make such provisions for the payment of the mortgage, insurance, taxes and related expenses as may be equitable. See Fraser v. Fraser, 368 So. 2d 97 (Fla. 3d DCA 1979). The order directing the sale of the beach house suffers from the same defects as the one in Carlsen v. Carlsen, 346 So. 2d 132 (Fla. 2d DCA 1977). As in Carlsen, this order is stricken. The cause is remanded for entry of an amen…
Previewing 3 of 9 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Cummings v. Cummings, 330 So. 2d 134 (Fla. 1976)
- Meridith v. Meridith, 366 So. 2d 425 (Fla. 1978)
- In re the Est. of Philip Siegel, 366 So. 2d 425 (Fla. 1978)
- Meridith v. Meridith, 352 So. 2d 72 (Fla. 4th DCA 1977)