CAROLYN JEAN COOLEY, APPELLANT/CROSS-APPELLEE,
v.
FLEMING BLACKWELL COOLEY, III, APPELLEE/CROSS-APPELLANT

Fla. 4th DCA | 1982-02-17
No. 80-780
OWEN, WILLIAM C., Jr. (Retired), and GREEN, OLIVER L., Jr., Associate Judges, concur.
409 So. 2d 533 Florida District Court of Appeal, Fourth District (1982) Caution
Cited by 14 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

In this dissolution of marriage appeal, the wife challenges the division of marital assets and alimony awards after a 22-year marriage. The appellate court reverses and remands because the trial court improperly awarded automatically declining alimony and failed to consider the wife's contributions to the marriage and the husband's substantial assets when setting support.


Holding

The trial court erred in awarding automatically declining alimony, which constitutes a legal error when no showing is made that the wife will have greater future income. The overall award to the wife was too low given her needs and the husband's clear ability to pay. The matter is remanded for reconsideration of lump sum and permanent periodic alimony commensurate with her needs and the husband's ability.


Headnotes

[1] An automatic reduction in permanent periodic alimony is improper.

[2] A trial court's award of alimony may be reversed if it is inadequate considering the parties' respective financial positions and the duration of the marriage.

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Key Quotes

“In Garrison v. Garrison, 380 So. 2d 473 (Fla. 4th DCA 1980), this court found progressive reductions in alimony to be improper and ordered permanent periodic alimony where it was not shown that the wife would have any greater income in the future.”

Establishes that automatically declining alimony is improper legal error

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Facts & Procedural History

The parties were married for approximately 22 years and had three adult children at dissolution. The wife was a dental hygienist who worked intermitte…

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Opinion of the Court
BERANEK, Judge.

BERANEK, Judge.

This matter has been considered on the husband’s petition for rehearing directed to this court’s previous opinion filed December 23, 1981. The opinion of December 23, 1981, is hereby withdrawn.

This is an appeal by the wife from a final judgment of dissolution of marriage, along with a cross-appeal by the husband. The parties were married for approximately 22 years. Three children were born of the marriage who were adults at the time of the dissolution. The wife was a dental hygienist and the husband a dentist. The wife assisted the husband by working to further his education and, when not engaged in raising the children, the wife worked intermittently. Her earnings, although minimal, went into a joint account. At the time of the dissolution of marriage, the husband had substantial assets in his own name and a profitable dental professional association producing substantial income. A simple comparison shows the husband was in a far superior financial position to the wife with most of the assets held in his name. The only substantial joint asset was the marital residence.

By virtue of the appeal and cross-appeal, both parties contest most of the financial provisions of the judgment regarding alimony. We conclude that the court erred in certain respects to the prejudice of the wife and reverse.

The trial court awarded the wife the husband’s interest in the marital homeplace as lump sum alimony. The house was valued at approximately $70,000 with an outstanding balance on the mortgage of approximately $38,000 leaving an equity of $32,000.

Thus, the award to the wife represented some $16,000 in lump sum alimony if and when the house is sold. In addition, the trial court awarded permanent periodic alimony to the wife in the amount of $1,000 per month for the first year but automatically reduced this amount thereafter. In Garrison v. Garrison, 380 So. 2d 473 (Fla. 4th DCA 1980), this court found progressive reductions in alimony to be improper and ordered permanent periodic alimony where it was not shown that the wife would have any greater income in the future. Similarly, in DeVito v. DeVito, 393 So. 2d 1189 (Fla. 3d DCA 1981), an automatic reduction of permanent alimony was found to be improper. The appellant/wife contends that she was short-changed after 22 years of marriage in that the sum of $1,000 a month plus the husband’s interest in the home was totally inadequate when viewed in light of her future needs and the husband’s obvious ability to pay. At the time of the dissolution, the husband had an interest in various real estate trusts which the trial court valued at a minimum of $150,000. These assets were held in the husband’s name alone. They had been bought from a joint account and if money was borrowed to make an investment in the husband’s name, the wife’s name was also placed on the mortgage, or she was otherwise bound on the debt.

The trial court denied the wife’s request for any interest in the husband’s real estate holdings.

Husband urges that the wife, a dental hygienist, is earning a reasonable income, and that she should support herself. We view the overall award to the wife as being too low. The fact that the wife may, with her own earnings plus alimony, be able to provide basic food, shelter, and necessities, does not mean that this is the maximum she is entitled to receive after 22 years of participation in the partnership of marriage. Her standard of living during the marriage was considerably higher than “the bare necessities” and husband can clearly afford greater payments.

We conclude that the automatically declining alimony constituted a legal error, and same is hereby reversed based upon the above cited authorities. The matter is remanded to the trial court for further proceedings to reconsider the wife’s prayer for lump sum alimony and permanent periodic alimony commensurate with her needs and the husband’s ability. The points raised by husband on cross-appeal are found to be without merit.

REVERSED and REMANDED.

OWEN, WILLIAM C., Jr. (Retired), and GREEN, OLIVER L., Jr., Associate Judges, concur.


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Citator

Cited By

  • DE Cenzo v. de Cenzo, 433 So. 2d 1316 (Fla. 3d DCA 1983)
    …her financial need in light of the standard of living enjoyed during the marriage. These principles were not changed by Canakaris. Id. at 1371 (citations omitted). See also Nichols v. Nichols, 418 So. 2d 1198 (Fla. 5th DCA 1982); Cooley v. Cooley, 409 So. 2d 533 (Fla. 4th DCA 1982). While the parties disagree strongly over the amount each earns, it appears from his own admissions that Dr. DeCenzo earns approximately four times as much money as a doctor as does Mrs. DeCenzo as a nurse. Suffice it to say that…
  • Elisabetta La Monaca Antonini v. Antonini, 473 So. 2d 739 (Fla. 1st DCA 1985)
    …in future permanent periodic alimony payments. Sever v. Sever, 467 So. 2d 492 (Fla. 2d DCA 1985); McClung v. McClung, 465 So. 2d 637 (Fla. 2d DCA 1985); Ramsey v. Ramsey, 431 So. 2d 258 (Fla. 2d DCA 1983), and cases cited therein; Cooley v. Cooley, 409 So. 2d 533 (Fla. 4th DCA 1982). There is no evidence in this record to support a finding that the wife’s financial needs will change five years hence, therefore that portion of the order directing future diminution of the amount of alimony payments is reversed…
  • Sussman v. Sussman, 915 So. 2d 281 (Fla. 4th DCA 2005)
    …a trial judge “fails to apply the correct legal rule ... the action is erroneous as a matter of law.” Ondrejack, 839 So. 2d at 870 (quoting Kennedy v. Kennedy, 622 So. 2d 1033, 1034 (Fla. 5th DCA 1993)). The majority relies on to Cooley v. Cooley, 409 So. 2d 533 (Fla. 4th DCA 1982), to support a reversal. In Cooley, standard of living was a necessary element in determining the propriety of an alimony award, but so too was the husband’s ability to pay. In reversing an award of alimony, the court noted that t…
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