SHERYE BRADLEY, APPELLANT,
v.
HARRY BRADLEY, JR., APPELLEE
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In this Florida divorce appeal, the court reversed the trial court's denial of alimony to a wife of 15 years, holding that the husband's substantial military retirement annuity ($94,500) and demonstrated ability to pay, combined with the wife's documented need and limited earning capacity, warranted an award of permanent periodic alimony of at least $150 per month.
The court held that the trial court abused its discretion in denying alimony. The wife's need combined with the husband's ability to pay—evidenced by his substantial annuity and net worth—justified an award of permanent periodic alimony of at least $150 per month in addition to any lump sum alimony previously awarded.
[1] A trial court abuses its discretion in denying alimony when the requesting spouse demonstrates need and the other spouse possesses significant assets, such as a military…
[2] The value of a military retirement annuity, even if received after separation from service, can be considered a marital asset for the purpose of determining alimony.
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Join FLexlaw to unlock all legal intelligence“The test for the award of alimony is still the need of the spouse seeking alimony and the ability of the other spouse to pay”
Establishes the fundamental legal standard for alimony awards under Florida law
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Join FLexlaw to unlock all legal intelligenceThe parties were married for 15 years. The husband, age 41, is retired from the Coast Guard and was attending school to become a mechanic at the time …
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BROWNLEE, JACKSON 0., Associate Judge.
The question presented to the court is whether or not the trial court erred in denying the wife alimony when her need for it was shown and when the husband had an annuity as a result of his military retirement in the sum of $94,500.00, a large portion of the annuity being earned during the fifteen years of marriage in which the wife was principally the homemaker. The parties had been married for fifteen years, the husband is forty-one years and the wife is thirty-six, the husband being currently retired from the Coast Guard and now attending school to learn to be a mechanic. The wife has not been employed since the early years of the marriage except for a time just prior to retirement when she became employed in order to help pay for a newly acquired house.
The husband was not employed at the time of trial and in fact was attending school, which had no relationship whatsoever to his plans of attending school to become a mechanic. The husband was receiving an educational allotment of $351.00 per month, plus a retirement pension of $373.00 per month. The wife earned $121.00 per week. Considering the husband’s military retirement as an annuity, a financial expert testified that the value of the annuity as an asset was $94,500.00. Including the annuity, the husband had a net worth of one hundred one thousand sixty dollars. The wife had a net worth of three thousand two hundred and sixteen dollars.
Testimony at the time of trial indicated that the wife’s future income would not change except for cost of living increases. It would be nice if the wife could go to college or secretarial school or some other educational facility in order to increase her earning capacity; however, her financial situation coupled with two children at home simply does not afford her that luxury. The question then arises whether the husband, because he does have an annuity, should be allowed to make the election of whether or not to go to school and become educated while drawing the annuity, or whether or not he should be placed in the position of having to also enter the work force for purposes of contributing to the needs of his wife of fifteen years.
The court is well aware of the great weight which must be accorded the findings and award of alimony by the trial court. Palmer v. Palmer, 338 So. 2d 86 (Fla. 1st DCA 1976); Dorman v. Dorman, 332 So. 2d 358 (Fla. 1st DCA 1976), cert. denied 341 So. 2d 1081 (Fla.1976). However, in this case, where the husband is separated from the military service after twenty faithful years, he is rewarded an annuity of equal in value to $94,500.00 against which he may draw for the rest of his life. Whereas the wife, after fifteen years of service to her husband, is awarded two children to continue to look after, plus the husband’s interest in the marital residence which this court views as nothing more than a division of the assets of the parties. We think the disparity is too great to be ignored and consider that an abuse of discretion was shown. The test for the award of alimony is still the need of the spouse seeking alimony and the ability of the other spouse to pay, Sisson v. Sisson, 336 So. 2d 1129 (Fla.1976). Earning ability as well as anticipated earning ability may also be considered, Gordon v. Gordon, 335 So. 2d 321 (Fla. 4th DCA 1976), cert. denied, 344 So. 2d 324 (Fla. 1977); Fried v. Fried, 375 So. 2d 46 (Fla. 2d DCA 1979). The circumstances surrounding this case justify and require the award of permanent periodic alimony, in addition to the lump sum alimony previously awarded by the court, in a sum of not less than $150.00 per month.
Reversed and remanded with directions to modify the final judgment to award the wife permanent periodic alimony, in addition to the lump sum alimony previously awarded by the court, in a sum of not less than $150.00 per month.
REVERSED and REMANDED.
SHARP, J., concurs.
CROSS, J., dissents without opinion.
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Diffenderfer v. Diffenderfer, 491 So. 2d 265 (Fla. 1986)…rove those Florida decisions in which the court has done just that. See, e.g., Marshall v. Marshall, 445 So. 2d 706 (Fla. 4th DCA 1984); Higgins v. Higgins, 408 So. 2d 731 (Fla. 1st DCA), review denied, 417 So. 2d 329 (Fla.1982); Bradley v. Bradley, 385 So. 2d 101 (Fla. 5th DCA), review denied, 392 So. 2d 1392 (Fla.1980). Lest our observations here be misunderstood, [*269] we once again reiterate our warning in Walter v. Walter, 464 So. 2d 538, 540 (Fla.1985), quoting Canakaris, 382 So. 2d at 1197, that we wi…
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O'Neal v. O'Neal, 410 So. 2d 1369 (Fla. 5th DCA 1982)…nge in the circumstances of the parties on which to base an order to modify the Final Judgment.” (emphasis added) . See Higgins v. Higgins, 408 So. 2d 731 (Fla. 1st DCA 1981); Cowan v. Cowan, 389 So. 2d 1187 (Fla. 5th DCA 1980); Bradley v. Bradley, 385 So. 2d 101 (Fla. 5th DCA 1980).…
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Colucci v. Colucci, 392 So. 2d 577 (Fla. 3d DCA 1980)…umulated during the marriage. Far more important, Mr. Colucci has a very substantial earning capacity and additional security provided by his annuity and his pension plan. See, Cowan v. Cowan, 389 So. 2d 1187 (Fla. 5th DCA 1980); Bradley v. Bradley, 385 So. 2d 101 (Fla. 5th DCA 1980). In contrast, Mrs. Colucci has no real capacity for self-support and is almost entirely dependent upon her ex-husband. If he dies, her financial situation would be no less than catastrophic. See the considerations expressed in Co…
Previewing 3 of 10 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Sisson v. Sisson, 336 So. 2d 1129 (Fla. 1976)
- Hampton v. State, 375 So. 2d 46 (Fla. 3d DCA 1979)
- Gordon v. Jeri Lee Gordon, 335 So. 2d 321 (Fla. 4th DCA 1976)
- Palmer v. Stanford B. Palmer, Jr., 338 So. 2d 86 (Fla. 1st DCA 1976)
- Dorman v. Dorman, 332 So. 2d 358 (Fla. 1st DCA 1976)