FRANCES GROBARD, APPELLANT,
v.
ALEXANDER GROBARD, APPELLEE

Fla. 3d DCA | 1980-04-01
No. 79-1594
Before SCHWARTZ and NESBITT, JJ., and CHARLES A. CARROLL (Ret.), Associate Judge.
382 So. 2d 117 Florida District Court of Appeal, Third District (1980) Positive Treatment
Cited by 5 cases

AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.

Synopsis

A wife appeals from a final judgment of dissolution that denied her lump sum alimony while awarding periodic alimony with a reserved charging lien against the husband's estate. The court reversed, finding the charging lien mechanism ineffective and remanding for the trial court to award lump sum alimony as a substitute.


Holding

The charging lien is ineffective because property will vest in the husband's heirs or devisees upon his death, leaving no property titled in his name against which a lien could be imposed, and because he may divest himself of property before death. Lump sum alimony is appropriate as an effective substitute and is authorized under Florida Statutes Section 61.08.


Headnotes

[1] A charging lien against a deceased husband's estate is ineffective if it is not imposed at the time of the final judgment and the husband may divest himself of his intere…

[2] Title to a decedent's property vests in heirs or devisees upon death, preventing a subsequently imposed charging lien from attaching to property no longer in the decedent…

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Key Quotes

“In the first instance, the husband may divest himself of his interests prior to imposition of the charging lien which would not take effect until the time of his death. Secondly, by statute, title to his property, both real and personal, will vest, either testate or intestate, upon the husband's death, in his heirs or devisees.”

Explains why the charging lien mechanism is ineffective as a matter of law

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Facts & Procedural History

This was an 18-year childless marriage. The husband, age 74 and in good health, had annual income of $25,000 plus social security and a net worth of a…

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Opinion of the Court
NESBITT, Judge.

NESBITT, Judge.

The wife appeals from a final judgment of dissolution denying her lump sum alimony. To ensure the wife’s continued receipt of an award of periodic alimony, the court reserved jurisdiction to impose a charging lien against the husband’s estate upon his demise. We find that the charging lien will not become effective and therefore determine that this deficiency requires the judgment be reversed and the case be remanded to the trial court for determination of lump sum alimony in favor of the wife.

The husband has not cross-appealed from any of the provisions of the final judgment.

This was a childless marriage of some eighteen years. The husband was seventy-four years of age and in good health at the time of the final dissolution. He had an annual income of $25,000 in addition to social security benefits. His net worth is approximately $400,000.

The wife is in her mid-fifties and is employed as a legal secretary on a part-time basis from which she realizes about $4,000 annually. Additionally, she earns $156 per week from rental income. Her net worth is relatively insignificant.

The final judgment awarded the wife a life estate in the marital home and $50 per week in permanent periodic alimony together with the reservation to determine and award her counsel fees and taxable costs. Recognizing the need of the wife to continue to receive payments for her support, the trial court, in its final judgment, retained jurisdiction to determine whether permanent periodic payments should become a charging lien against the husband’s estate in the event of his demise. The trial court based such a reservation upon the case of Ford v. First National Bank in St. Petersburg, 260 So. 2d 876 (Fla. 2d DCA 1972), cert. discharged 283 So. 2d 342 (Fla.1973).

In Ford v. First National Bank in St. Petersburg, supra, the charging lien was imposed against the husband’s estate at the time of the entry of the final judgment. There are several reasons why the provision purporting to create a charging lien in this case is ineffective. In the first instance, the husband may divest himself of his interests prior to imposition of the charging lien which would not take effect until the time of his death. Secondly, by statute, title to his property, both real and personal, will vest, either testate1 or intestate,2 upon the husband’s death, in his heirs or devisees. The effect of this is that the intention of the court and the purpose in reserving jurisdiction will be defeated in that there will be no property titled in the husband’s name against which a charging lien may be imposed.

Section 61.08, Florida Statutes (1979) authorizes alimony in the form of lump sum or periodic or both, the award of which rests within the sound discretion of the trial court. Linares v. Linares, 292 So. 2d 63 (Fla. 3d DCA 1974). In this case, an award of lump sum alimony will not impair the husband’s economic status. Bradley v. Bradley, 327 So. 2d 253 (Fla. 4th DCA 1976).

We consider the wife’s appeal from the denial of lump sum alimony meritorious because we are persuaded that it was the intention of the trial court to protect the wife’s future needs through a charging lien which, in this case, is ineffective. An award of lump sum alimony will provide an effective substitute for a charging lien.

Accordingly, the judgment appealed from is affirmed except as it denied the wife’s .lump sum alimony. On remand, the trial court is authorized to determine the amount, time and mode of payment of lump sum alimony to which the wife is entitled.

Affirmed in part, reversed in part.

. Section 732.514, Florida Statutes (1979) provides that:

“The death of the testator is the event that vests the right to devises unless the testator in his will has provided that some other event must happen before a devise shall vest.” Section 731.201(8), Florida Statutes (1979) defines the term “devise” to mean “a testamentary disposition of real or personal property . .

. Section 732.101(2), Florida Statutes • (1979) provides that:

“The decedent’s death is the event that vests the heirs’ right to intestate property.” Section 731.201(28), Florida Statutes (1979) defines the term “property” to mean “both real and personal property or any interest in it and anything that may be the subject of ownership.”

Cases With Similar Vibessemantic neighbors from the corpus


Citator

Cited By

  • Carroll v. Carroll, 471 So. 2d 1358 (Fla. 3d DCA 1985)
    …hereby vacate the rehabilitative alimony award and, on remand, direct that it be made a permanent periodic alimony award. LUMP SUM ALIMONY Both periodic and lump sum alimony may be. awarded in the discretion of the trial court. Grobard v. Grobard, 382 So. 2d 117 (Fla. 3d DCA 1980). An award of lump sum alimony is appropriate in this case. Although a justification for the lump sum alimony award is not set out in the trial court’s order, it is reflected in the record and the husband is financially able to pay…
  • Stith v. Stith, 384 So. 2d 317 (Fla. 2d DCA 1980)
    …justified, such an award can provide an ex-wife with sufficient security to minimize her risk that her sole means of support will be lost to her if her ex-husband should die, and an award designed for that purpose is appropriate. Grobard v. Grobard, 382 So. 2d 117 (Fla. 3d DCA 1980). A lump sum award payable in installments is perfectly proper in an appropriate case. West v. West, 260 So. 2d 541 (Fla. 1st DCA 1972). Further, jurisdiction may be retained, as the trial judge did in the instant case, to award pe…
  • NOE v. NOE, 431 So. 2d 657 (Fla. 2d DCA 1983)
    …mony may be awarded as a means of insuring an equitable distribution of property acquired during the marriage, Canakaris v. Canakaris, 382 So. 2d 1197 (Fla.1980), or to provide for the wife’s further needs for continuing support, Grobard v. Grobard, 382 So. 2d 117 (Fla. 3d DCA 1980). The trial court availed itself of this means of achieving a fair division of assets in the instant case, awarding the wife certain items of real and personal property as lump sum alimony, due undoubtedly to the fact that much of…

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