H. G. MARTIN, APPELLANT,
v.
PEGGY M. MARTIN, APPELLEE
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In a dissolution of marriage case, the Florida appellate court reversed the trial court's award of the husband's one-half interest in the marital home as lump sum alimony to the wife, finding insufficient evidence of necessity and ability to pay, but affirmed the division of proceeds from the sale of diesel trucks and remanded for reconsideration of other judgment provisions.
The award of the husband's one-half interest in the marital home as lump sum alimony was erroneous and reversed because there was no positive showing of necessity on the wife's part or ability of the husband to comply with payment. The award of one-half of the net proceeds from the diesel trucks was affirmed based on the parties' stipulation. The case was remanded for reconsideration of other judgment provisions that may have been influenced by the erroneous lump sum alimony award.
[1] An award of lump sum alimony requires a showing of necessity by one spouse and the ability of the other spouse to comply with payment.
[2] Evidence must affirmatively demonstrate the necessity for lump sum alimony and the payor spouse's ability to pay.
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Join FLexlaw to unlock all legal intelligence“To justify an award of lump sum alimony, there must be a positive showing of necessity on the part of one spouse and a showing of an ability of the other spouse to comply with payment thereof.”
Establishes the legal standard for lump sum alimony awards that the trial court failed to meet
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Join FLexlaw to unlock all legal intelligenceThe parties were married for approximately 31 years and jointly owned a home with equity between $13,500-$16,000. The husband owned two diesel trucks …
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SHIVERS, Judge.
The husband seeks review of a final judgment in a dissolution of marriage proceeding contending that the court erred in awarding the wife as lump sum alimony the husband’s undivided one-half interest in the jointly held marital home and by awarding the wife one-half of the net proceeds from the sale of two diesel trucks titled in the husband’s name. We reverse in part and remand.
The parties were married for approximately thirty-one years. They jointly owned a home, purchased for $62,500, with an equity therein of between $13,500 and $16,000. The only other joint assets were tangible personal property and two automobiles. The husband also owned two diesel trucks which had been paid for primarily from the $60,000 he had inherited from his mother’s estate in 1977. The wife had been employed throughout the marriage and was currently earning a net salary of approximately $134 per week. At the time of the final hearing, the husband had a net income of approximately $158 per week.
The final judgment awarded custody of the parties’ two minor children to the wife and required the husband to pay to the wife $50 per week as child support. The husband’s interest in the marital home was awarded to the wife as lump sum alimony. The final judgment further provided that the two diesel trucks be sold and that the net proceeds, after deduction of all reasonable expenses incurred by the husband in preparing them for sale, be divided equally between the parties. Although requested, no rehabilitative or permanent periodic alimony was awarded to the wife.
In the light of the stipulation entered into between the parties and the husband’s reaffirmance thereof at the final hearing, we find no error in that portion of the final judgment awarding the wife one-half of the net proceeds from the sale of the diesel trucks. However, we agree that the lump sum alimony award to the wife of the husband’s undivided one-half interest in the marital home was erroneous. To justify an award of lump sum alimony, there must be a positive showing of necessity on the part of one spouse and a showing of an ability of the other spouse to comply with payment thereof. Meridith v. Meridith, 366 So. 2d 425 (Fla.1978); Cummings v. Cummings, 330 So. 2d 134 (Fla.1976); Gordon v. Gordon, 192 So. 2d 514 (Fla.1st DCA 1966). The evidence herein does not justify the award of lump sum alimony.
Accordingly, that portion of the final judgment awarding the wife the husband’s one-half interest in the marital home is reversed. Since other provisions of the final judgment may have been influenced by the lump sum alimony award to the wife of the marital home, which we have reversed, the cause is remanded to the trial court so that he may reconsider the other aspects of the final judgment. The court may take further testimony in this regard if it deems it appropriate. Winner v. Winner, 370 So. 2d 845 (Fla.3d DCA 1979); Fraser v. Fraser, 368 So. 2d 97 (Fla.3d DCA 1979). Reversed in part and remanded.
ERVIN, Acting C. J., and BOOTH, J., concur.
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In re The Marriage of Lynn Earl Lynch v. Lynch, 437 So. 2d 234 (Fla. 5th DCA 1983)…ord to determine if it can be supported either as support alimony or as an equitable distribution of property. Prior to Canakaris, other courts agreed that need was a necessary ingredient to an award of lump sum (support) alimony. Martin v. Martin, 376 So. 2d 400 (Fla. 1st DCA 1979); Simpson v. Simpson, 372 So. 2d 526 (Fla. 4th DCA 1979). Although the fourth district appears to now believe that Canakaris has done away with any requirement to show need, and that only a showing of “justification” is required,…
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Sanders v. Sanders, 435 So. 2d 372 (Fla. 5th DCA 1983)…o. 2d 1221 (Fla. 5th DCA 1982), where the marital home was the parties’ only substantial asset, a lump [*375] sum award to the wife of the jointly owned home was reversed in favor of an award of exclusive possession. Similarly, see Martin v. Martin, 376 So. 2d 400 (Fla. 1st DCA 1979); Foxx v. Foxx, 357 So. 2d 754 (Fla. 1st DCA 1978); Gesford v. Gesford, 337 So. 2d 1017 (Fla. 4th DCA 1976). In Simpson v. Simpson, 372 So. 2d 526 (Fla. 4th DCA 1979), when faced with the same situation the court said: Since the…
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Culp v. Culp, 413 So. 2d 1221 (Fla. 5th DCA 1982)…ld support is a discretionary matter and should not be disturbed unless abuse is shown. Droubie v. Droubie, 379 So. 2d 1331 (Fla. 2d DCA 1980). REVERSED in part, and AFFIRMED in part. ORFINGER and COBB, JJ., concur. . See, e.g., Martin v. Martin, 376 So. 2d 400 (Fla. 1st DCA 1979)—the evidence did not justify award of lump sum alimony when the parties had substantially similar salaries and the major asset was the marital home; Simpson v. Simpson, 372 So. 2d 526 (Fla. 4th DCA 1979)— when wife’s needs would…
Authorities Cited
- Cummings v. Cummings, 330 So. 2d 134 (Fla. 1976)
- Winner v. Winner, 370 So. 2d 845 (Fla. 3d DCA 1979)
- Gordon v. Gordon, 192 So. 2d 514 (Fla. 1st DCA 1966)
- Meridith v. Meridith, 366 So. 2d 425 (Fla. 1978)
- In re the Est. of Philip Siegel, 366 So. 2d 425 (Fla. 1978)
- Fraser v. Fay Fraser, 368 So. 2d 97 (Fla. 3d DCA 1979)