MARY M. MAHAFFEY, APPELLANT,
v.
JAMES W. MAHAFFEY, APPELLEE
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In this divorce appeal, the Florida District Court of Appeal affirmed most of the trial court's alimony and property division awards but remanded for modification of the lump sum alimony payment schedule. The court held that while the $200,000 lump sum amount was appropriate, the contingent payment terms tied to future partnership sales were impermissibly vague and indefinite.
The court affirmed the $200,000 lump sum alimony amount, the $1,100 monthly permanent alimony, the homestead award with maintenance credit, and the attorney's fees award as all within the trial court's discretion. However, the court reversed and remanded regarding the payment schedule for the lump sum alimony, holding that the contingent payment terms tied to partnership sales were too vague and indefinite, and that a definite payment schedule must be established.
[1] A trial court has discretion to award exclusive possession and use of the marital home to a custodial parent during the minority of the children.
[2] Provisions requiring a spouse to be credited for mortgage payments, taxes, insurance, maintenance, and upkeep on the marital home upon sale are standard in dissolution ju…
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Join FLexlaw to unlock all legal intelligence“Having determined that lump sum alimony of $200,000 is appropriate, the lower court should then have set a definite time and manner for its payment.”
Establishes the core holding that while the amount was proper, a definite payment schedule was required.
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Join FLexlaw to unlock all legal intelligenceThe parties, both in their early forties, were married for twenty years and had four children, two of whom were minors at dissolution. The wife was pr…
The full statement of facts, procedural history, and disposition for this case are member content.
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SHARP, Judge.
The parties appeal from a final judgment of dissolution. The former husband urges the trial court erred in awarding the wife: (1) $200,000 lump sum alimony, (2) the use and possession of the marital home during the minority of the two children in the wife’s custody and allowing her to recoup on sale of the home, one-half of the mortgage, taxes, insurance, maintenance and upkeep on the house, (3) $1,100 per month permanent alimony, and (4) $15,000 towards payment of the wife’s attorney’s fees. The wife argues the trial court erred by: (1) failing to award a larger amount of lump sum alimony and in not making it payable at a definite time and in definite amounts, and (2) failing to grant her a $20,000 special equity in the marital home. We affirm the judgment in all respects except the provisions for payment of the lump sum alimony, and we remand this proceeding to the trial court for reconsideration consistent with the views expressed in this opinion.
At the time of the dissolution the parties were in their early forties, and had been married for twenty years. They had four children and two were still minors: a boy eleven years old and a girl thirteen years old. The wife had been primarily a housewife during the marriage. Recently she began a small clothing business, which produced a small net income. From her family the wife inherited some funds and properties, and she owned one-half the marital home, which had been appraised at $225,-000. Some $20,000 of her inherited funds were used to make part of the down payment on the marital home, and to remodel and furnish it. Her net assets totaled approximately $200,000.
She testified she needed in excess of $5,000 per month to maintain herself and the children in the lifestyle they enjoyed during the marriage. The husband had paid most of their living expenses, so she was uncertain about the accuracy of her financial affidavit. He testified their needs were only $2,090.00 per month.
The husband agreed there was no question he could pay a reasonable amount of alimony. He is a wealthy, successful apartment and real estate owner and developer. His net worth statement for 1979 totaled $1,441,782. Over the years, his net worth had steadily increased and the assets had been acquired during the marriage. In 1978 he paid $36,350 in federal income taxes and in 1979 he expected to pay $91,500. He estimated $72,000 as his tax bill for 1980.
Most of the husband’s property consisted of his interests in some eighteen to twenty partnerships which owned, developed or managed apartments. In each case he held a minority percentage or interest in the partnership, and each partnership had restrictions on his right to sell or transfer his partnership interest. Three projects which were generating heavy taxes had been sold in the past two years. The husband testified that the forced sale of his business interests would cause him financial disaster. If forced to liquidate them, the taxes would reduce his net worth to only $472,000. At the trial the attorneys for both parties and a witness who was a C.P.A. agreed that the award of lump sum alimony to the wife of an interest in the partnership assets, would be a “taxable event” or “sale” to the husband. I.R.C. § 71(a) and (c)(1).
The lower court originally awarded the wife $800 per month in child support and $800 per month permanent periodic alimony. It also awarded her $400,000 in lump sum alimony payable in increments of one-half the net profit obtained by the husband on sale or liquidation of any partnership interest shown in his financial statement, or upon his death, whichever occurred first. On rehearing the court increased the permanent periodic alimony to $1,100 per month and reduced the lump sum alimony to $200,000. As did the prior judgment, the amended judgment required payment of the lump sum alimony in increments of one-half the net profit obtained by the husband upon sale or liquidation of a partnership interest or upon his death,1 whichever occurred first. In any event, $100,000 of the $200,000 must be paid within five years.
The trial court’s judgment should be upheld unless the conflicting party shows an abuse of discretion or lack of substantial evidence to support the ruling, or an error of law.2 Most of this judgment accordingly must be affirmed:
(1) We find no error in awarding the wife exclusive possession and use of the marital home during the minority of the children in her custody or until she dies or remarries. This is a frequent provision is dissolution judgments and is generally deemed to be in part a discharge of the child support obligation of the non-custodial parent. Alford v. Alford, 364 So. 2d 1255 (Fla. 2d DCA 1978); Singer v. Singer, 342 So. 2d 861 (Fla. 1st DCA 1977); McNaughton v. McNaughton, 332 So. 2d 673 (Fla. 3d DCA 1976), cert. denied, 345 So. 2d 424 (Fla. 1977). The requirement that the wife be given credit on sale of the house for one-half of the mortgage payments, taxes, insurance, maintenance and upkeep on the home is also a standard provision, perhaps required by the law of joint tenancy. Rubino v. Rubino, 372 So. 2d 539 (Fla. 1st DCA 1979). See Power v. Power, 387 So. 2d 546 (Fla. 5th DCA 1980). The inclusion of unlimited sums for “maintenance” and “upkeep” goes further than may be normally appropriate. However, in this case where the court chose not to recognize the wife’s “special equity” in her $20,000 contribution to the home3 under circumstances where such an award may have been permissible, this broader award is within the lower court’s discretion.
(2) The amount set for permanent periodic alimony and its award are well within the trial court’s discretion. Canakaris v. Canakaris, 382 So. 2d 1197 (Fla. 1980); Shaw v. Shaw, 334 So. 2d 13 (Fla. 1976).
(3) The record supports the award of attorney’s fees to the wife. Canakaris v. Canakaris, 382 So. 2d 1197 (Fla.1980); Cummings v. Cummings, 330 So. 2d 134 (Fla.1976). The wife has no cash or liquid assets and her primary source of income is the periodic alimony awarded in this judgment.
(4) The amount of lump sum alimony awarded ($200,000) appears to us as also well within the trial court’s discretion considering the nature of the husband’s assets and the apparent tax consequences of their sale or other disposition.4 Further, it is augmented by the award of substantial periodic alimony. Canakaris v. Canakaris, 382 So. 2d 1197 (Fla.1980). The concept of “equitable distribution” does not require an equal division of the assets acquired during the marriage 5 between the parties although that is a good starting point in most cases.
Having determined that lump sum alimony of $200,000 is appropriate, the lower court should then have set a definite time and manner for its payment. Lump sum alimony may be payable in installments over a time period and it can be made up in whole or in part by cash or property.6 However in this case, the provisions of the judgment are so contingent and vague as to when the payments are due, and the amount of the payments, it is entirely possible the wife will never receive the final $100,000 and she will probably have to wait the full five years to receive the first $100,-000. Clearly it is unreasonable to require her to wait until her former husband dies to receive equitable distribution of her share of the marital assets. 27B C.J.S. Divorce § 250 (1959); See Kirchman v. Kirchman, 389 So. 2d 327 (Fla. 5th DCA 1980). We therefore remand this proceeding to the trial court to set a definite payment schedule for the lump sum alimony award. Codie v. Codie, 328 So. 2d 863 (Fla. 2d DCA 1976). In all other respects the judgment is affirmed.
AFFIRMED in part, REVERSED in part and REMANDED.
DAUKSCH, C. J., and ORFINGER, J., concur. . The judgment provides:
6. The Husband shall pay to the Wife lump sum alimony of $200,000 payable in the following manner:
a. The said $200,000 is to be paid in increments of one-half (V2) of any net profit obtained by the Husband on any sale, transfer or liquidation or any partnership interest shown in the Financial Statement of the Husband dated October 22, 1979 and filed herein on March 7, 1980, or on the death of the Husband, whichever occurs first.
. Kirchman v. Kirchman, 389 So. 2d 327 (Fla. 5th DCA 1980); Storer v. Storer, 353 So. 2d 152 (Fla. 3d DCA 1977), cert. denied, 360 So. 2d 1250 (Fla.1978); Bradley v. Bradley, 327 So. 2d 253 (Fla. 4th DCA 1976); Ortiz v. Ortiz, 211 So. 2d 243 (Fla. 3d DCA 1968).
. Landay v. Landay, 400 So. 2d 43 (Fla. 2d DCA 1981).
. Yandell v. Yandell, 39 So. 2d 554 (Fla.1949).
. Canakaris v. Canakaris, 382 So. 2d 1197 (Fla.1980).
. Haiberstadt v. Halberstadt, 72 So. 2d 810 (Fla.1954); Reid v. Reid, 68 So. 2d 821 (Fla.1953); Caidin v. Caidin, 367 So. 2d 248 (Fla. 3d DCA 1979), cert. denied, 381 So. 2d 765 (Fla.1980); Storer v. Storer, 353 So. 2d 152 (Fla. 3d DCA 1977), cert. denied, 360 So. 2d 1250 (Fla.1978); Oritz v. Oritz, 211 So. 2d 243 (Fla. 3d DCA 1968); Pollak v. Pollak, 196 So. 2d 771 (Fla. 3d DCA 1967); Katz v. Katz, 159 So. 2d 241 (Fla. 3d DCA), cert. denied, 166 So. 2d 594 (Fla.1964).
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Lou Jean Miller v. Miller, 625 So. 2d 1320 (Fla. 5th DCA 1993)…venty-one), that is a problem. Finally, I agree with the majority that tax considerations are appropriate factors in making equitable distributions of marital assets. See Rey v. Rey, 598 So. 2d 141 (Fla. 5th [*1323] DCA 1992); Mahaffey v. Mahaffey, 401 So. 2d 1372 (Fla. 5th DCA 1981). However, they may not be relevant in every case. If the marital distribution decree requires one spouse to transfer property to the other, or sell property and pay the proceeds to the other, and those actions have significant ta…
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Carroll v. Carroll, 471 So. 2d 1358 (Fla. 3d DCA 1985)…So. 2d 1316 (Fla. 3d DCA 1983) (trial court’s division of assets proper, though not equal); Tronconi v. Tronconi, 425 So. 2d 547 (Fla. 4th DCA 1982), aff'd, 466 So. 2d 203 (Fla.1985), although that is a good starting point, see Mahaffey v. Mahaffey, 401 So. 2d 1372 (Fla. 5th DCA 1981). Based on the foregoing analysis, we conclude that the distribution of the marital assets between the husband and the wife was not made equitably. The trial court must reconsider the lump sum alimony award so as to achieve that…
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Sanders v. Dorsey A. Sanders, 547 So. 2d 1014 (Fla. 1st DCA 1989)…ther contribution, but instead due solely to purely passive appreciation of the original asset. The starting point for apportionment of the enhanced value of a marital asset should be an equal division between the parties. See Mahaffey v. Mahaffey, 401 So. 2d 1372 (Fla. 5th DCA 1981). The court’s distribution plan should treat the enhanced value of the farm accordingly, excluding only that portion which the husband may establish as exempt under the principles above stated, and effecting any further apportionm…
Previewing 3 of 28 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited (23 total)
- Canakaris v. Canakaris, 382 So. 2d 1197 (Fla. 1980)
- Shaw v. Shaw, 334 So. 2d 13 (Fla. 1976)
- Ashleigh M. Moye v. Moye (Fla. 1st DCA 2021)
- Cummings v. Cummings, 330 So. 2d 134 (Fla. 1976)
- Storer v. Storer, 353 So. 2d 152 (Fla. 3d DCA 1977)
- Reid v. Reid, 68 So. 2d 821 (Fla. 1953)
- Monserrate B. McNAUGHTON v. McNAUGHTON, 332 So. 2d 673 (Fla. 3d DCA 1976)
- Maita P. Singer v. Singer, 342 So. 2d 861 (Fla. 1st DCA 1977)
- Ortiz v. Ortiz, 211 So. 2d 243 (Fla. 3d DCA 1968)
- Rubino v. Rubino, 372 So. 2d 539 (Fla. 1st DCA 1979)