CLARENCE E. HUTCHINSON, APPELLANT,
v.
MARGARET S. HUTCHINSON, APPELLEE
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In this 1931 Florida divorce case, the court upheld the dismissal of the husband's divorce petition but reversed the trial court's award of child support and spousal maintenance, finding the amount excessive given the husband's severely reduced income from illness and his substantial creation of a trust fund for the children's benefit.
The court affirmed the award of attorney's fees but reversed and reduced the child support and maintenance award, finding the amount excessive under the circumstances where the husband's total income was limited to approximately $4,500 annually from trust income plus minimal personal income, despite his prior generous contributions to the trust.
“Under the circumstances presented the trust may not exist except in morals but it was created by the joint assent of both parties hereto, it was primarily in intangibles and the fact that it is producing only forty-five hundred dollars per annum makes it's value problematical.”
Establishes the court's reasoning that the trust fund's limited income-producing capacity makes the support obligation assessment problematic
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Join FLexlaw to unlock all legal intelligenceThe parties had been married for approximately twenty years and had three children. The husband, a prominent surgeon formerly earning $10,000-$12,000 …
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— This appeal is from a final decree dismissing appellant’s bill for divorce and awarding appellee seven hundred fifty dollars Attorney’s fees and three hundred fifty dollars per month for the support and maintenance of the three children of appellant and appellee, the custody of said children having been awarded to appellee. That part of the final decree dismissing the bill for divorce is not challenged.
The record discloses that the parties hereto had been married for about twenty years and that three children were the fruit' of this union, that they had been estranged for several years, that appellee had some income in her own right, and that during most of their married life appellant *1124liad been a prominent surgeon earning from ten to twelve thousand dollars per year. It is also shown that a large portion of appellant’s income has been used to create a trust fund for the benefit of the three children and that said fund is valued at $150,000 to $200,000, that appellant is the designated trustee t'o handle said fund which is now producing an income of not exceeding forty-five hundred dollars per annum, and that said income as trustee including about one hundred twenty-five dollars per month personal income is all the income that appellant has. The record further shows that appellant is on account of sickness and disease totally incapacitated to follow his profession, that he has no other source of income and that he has been contributing liberally to the support of his wife and children although the wife has considerable income in her own right and owns the home where she lives.
Under the circumstances presented the trust may not exist except in morals but it was created by the joint assent of both parties hereto, it was primarily in intangibles and the fact that it is producing only forty-five hundred dollars per annum makes it's value problematical. In view of this and' other facts presented we think the amount allowed for support and maintenance was too large. We find no fault with that part of the final decree allowing attorney’s fees.
Reversed in part, affirmed in part.
Whitfield, P.J., and Terrell and Davis, J.J., concur.
Buford, C.J., and Ellis and Brown, J.J., concur in the opinion and judgment.
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Platt v. Platt, 103 So. 2d 253 (Fla. 1st DCA 1958)…be and the same is hereby affirmed. STURGIS, C. J., and CARROLL, DONALD K., J., concur. . Bredin v. Bredin, Fla.1956, 89 So. 2d 353. . Brown v. Brown, Fla.1956, 84 So. 2d 311; Yandell v. Yandell, Fla.1949, 39 So. 2d 554; Hutchinson v. Hutchinson, 102 Fla. 1123, 137 So. 5. . Chastain v. Chastain, Fla.1954, 73 So. 2d 66.…
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Kaufman v. Kaufman, 63 So. 2d 196 (Fla. 1950)…n accustomed may be considered as well as [*200] her station and condition in life. The courts’, however, cannot enforce this rule where the resources and earning's of the husband are not sufficient ■ for the purpose.” See Hutchinson v. Hutchinson, 102 Fla. 1123, 137 So. 2d 5, and similar cases. The record discloses .that Samuel Kaufman was not in the State of Florida but at Toms River, New Jersey, and had been for several days, when the wife filed her suit in the Circuit Court of Volusia County, Florida,…
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Denny v. Denny, 334 So. 2d 300 (Fla. 1st DCA 1976)…2d 353.] Factors to be considered in awarding alimony are the needs of the wife and child and the husband’s capacity to meet such needs. [Brown v. Brown, Fla.1956, 84 So. 2d 311; Yandell v. Yandell, Fla.1949, 39 So. 2d 554; Hutchinson v. Hutchinson, 102 Fla. 1123, 137 So. 5.] Income alone is not necessarily the sole test in determining ability to pay. The nature of the husband’s capital assets is a proper consideration, [Chastain v. Chastain, Fla.1954, 73 So. 2d 66.] as is his earning capacity.” Then, in Th…