CECIL E. NICHOLSON, APPELLANT,
v.
GLYNN C. NICHOLSON, APPELLEE
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In this divorce appeal, the Florida District Court of Appeal reversed the trial court's award of rehabilitative alimony to the wife, finding it to be an abuse of discretion because the financial obligation imposed on the husband was excessive relative to his income, leaving him with inadequate means to support himself.
The trial court erred in awarding the wife rehabilitative alimony, and the paragraph of the final judgment awarding such alimony is stricken. The award was clearly excessive and constituted an abuse of discretion given that the husband's limited financial resources would leave him with only $10.50 per week to live on, the wife already had substantial assets including over $50,000 equity in the marital home, and although financial assistance is needed, the husband's income cannot support such an obligation.
[1] An award of rehabilitative alimony is an abuse of discretion when it leaves the payor with an unreasonably small amount of income to live on.
[2] A trial court may err in awarding rehabilitative alimony when the payor's income is insufficient to meet the alimony obligation and their own living expenses.
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Join FLexlaw to unlock all legal intelligence“The financial obligation of approximately $240 per week imposed upon the husband by the court is 86% of his income as shown on his financial statement and about 96% of his present income, which he testified had decreased since the filing of his financial statement due to increased withholding taxes. He is left with $10.50 per week to live on.”
Establishes the court's finding that the alimony award was excessive in proportion to the husband's income
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Join FLexlaw to unlock all legal intelligenceCecil Nicholson and Glynn Nicholson divorced. The trial court awarded the wife $100 per week in rehabilitative alimony for 104 weeks, $50 per week in …
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BOARDMAN, Acting Chief Judge.
On this appeal appellant husband challenges several provisions of the final judgment of dissolution. Specifically, he asserts that the trial court erred in awarding appel-lee wife $100 per week rehabilitative alimony for 104 weeks, awarding child support in the amount of $50 per week, awarding as lump sum alimony a 1976 Mazda automobile and the marital residence held as tenants by the entirety, and requiring the husband to pay the marital debts including the unpaid balance on the automobile.
Upon review of the record and briefs and having considered the legal issues presented at oral argument, we find one point to have merit.
The trial court erred in awarding the wife rehabilitative alimony. While we are hesitant to tread in those areas in which the trial court is accorded a wide latitude of discretion, we are compelled to do so in this ease. The financial obligation of approximately $240 per week imposed upon the husband by the court is 86% of his income as shown on his financial statement and about 96% of his present income, which he testified had decreased since the filing of his financial statement due to increased withholding taxes. He is left with $10.50 per week to live on. The alimony award is clearly excessive and constitutes an abuse of discretion. DeHart v. DeHart, 360 So. 2d 1285 (Fla. 2d DCA 1978); Santacroce v. Santacroce, 347 So. 2d 815 (Fla. 2d DCA 1977); Nevins v. Nevins, 305 So. 2d 63 (Fla. 3d DCA 1975), cert. denied, 327 So. 2d 33 (Fla.1976).
The parties have accumulated no marital assets other than the home awarded to the wife, which is worth at least $60,000 and has two outstanding mortgages in the amount of $8,500.
Thus the wife has over $50,000 equity in the house. In addition she owns fifty-five acres of land in Kentucky, acquired during a prior marriage. There is no question that the wife needs financial assistance from her husband to support herself and their minor child.
However, his financial resources are limited to his weekly salary. Under the factual circumstances presented, we conclude that the husband should not be required to pay the wife rehabilitative alimony.
Accordingly, the following paragraph of the trial court’s final judgment is stricken:
ORDERED AND ADJUDGED that Glynn C. Nicholson be and she is hereby granted rehabilitative alimony in the amount of $100 per week for a term of 104 weeks, the first of such payments to be made on or before one week from the date of this Final Judgment. . .1
Otherwise the judgment is affirmed.
SCHEB and OTT, JJ., concur. . We recognize that the husband has made several alimony payments under this paragraph as originally entered and as modified pending appeal. However, in view of the circumstances here, this opinion is not to be construed as giving the husband the right to recover any monies so paid prior to the issuance of our mandate in this cause.
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Citator
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Gentile v. Gentile, 565 So. 2d 820 (Fla. 4th DCA 1990)…(Fla. 2d DCA 1983) (awards totalling 71% of husband’s take home pay an abuse of discretion); Kaylor v. Kaylor, 413 So. 2d 870 (Fla. 2d DCA 1982) (awards of in excess of 70% of husband’s take home pay an abuse of discretion); Nicholson v. Nicholson, 372 So. 2d 178 (Fla. 2d DCA 1979) (award of 86% of current take home pay an abuse of discretion). In response, the wife points to the husband’s remaining capital assets and notes that Canakaris also permits the trial court to consider their value in assessing the…
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Blum v. Blum, 382 So. 2d 52 (Fla. 3d DCA 1980)…ort may not exceed the ability to pay them. Cana-karis v. Canakaris, supra; Sisson v. Sisson, 336 So. 2d 1129 (Fla.1976).7 Accordingly, each of the alimony and support provisions of the judgment must be reversed.8 See, e. g., Nicholson v. Nicholson, 372 So. 2d 178 (Fla. 2d DCA 1979), and cases cited. Other aspects of the judgment likewise may not be approved. While it was appropriate, since she had been using it, to award the four-door car to Mrs. Blum, it was entirely unfair and inequitable to decline recip…
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Desilets v. Desilets, 377 So. 2d 761 (Fla. 2d DCA 1979)…ave considered all other points raised by the husband on this appeal and found them to be without merit. Accordingly, we affirm the modification order in all respects. Affirmed. BOARDMAN, A. C. J., and RYDER, J., concur. . Nicholson v. Nicholson, 372 So. 2d 178 (Fla.2d DCA 1979); DeHart v. DeHart, 360 So. 2d 1285 (Fla.2d DCA 1978); Santacroce v. Santacroce, 347 So. 2d 815 (Fla.2d DCA 1977). . A CETA position is an employment opportunity created under the Comprehensive Employment and Training Act (CETA), 2…
Previewing 3 of 13 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- DeHART v. DeHART, 360 So. 2d 1285 (Fla. 2d DCA 1978)
- Freeman J. Nevins v. Nevins, 305 So. 2d 63 (Fla. 3d DCA 1974)
- Santacroce v. Anne Santacroce, 347 So. 2d 815 (Fla. 2d DCA 1977)