BETHANY B. VICKERS, APPELLANT,
v.
ROBERT L. VICKERS, APPELLEE
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This case addresses the proper standard for awarding temporary alimony and child support pendente lite in a dissolution of marriage. The trial court awarded only $215 biweekly plus half mortgage payments based on a minimal subsistence approach, but the appellate court held that the correct standard requires balancing the parties' standard of living and ability to pay, and reversed to award $1,600 monthly based on the husband's voluntary pre-separation payments.
The proper standard for temporary alimony and child support is the balance of need (as fixed by the parties' standard of living) and ability to pay, not a bare subsistence approach. The trial court's award was reversed and the husband was ordered to pay $1,600 per month based on the parties' own acknowledged recognition that this amount satisfied the wife's needs and was within the husband's ability to pay.
[1] Temporary alimony and child support awards must balance the parties' needs, as determined by their standard of living, with the ability to pay.
[2] A trial court's temporary alimony and child support award based solely on the principle of keeping parties financially stable until a final hearing is legally erroneous.
Previewing 2 of 5 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“The correct standard by which these amounts are to be assessed is instead the familiar one which balances needs as fixed by the parties' standard of living, on the one hand, and ability to pay, on the other.”
Establishes the proper legal standard for temporary alimony awards, rejecting the trial court's subsistence approach.
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Join FLexlaw to unlock all legal intelligenceThe husband and wife separated, and for over six months the husband voluntarily paid his wife approximately $1,600 per month without court order. The …
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SCHWARTZ, Judge.
In making a temporary alimony and child support award of $215 biweekly, plus half the mortgage payments on the parties’ home for which the husband was obligated anyway, the trial judge observed that “the only thing I am doing is keeping everybody alive until the final hearing.” This just-prevent-them-from-going-to-the-poorhouse-until-the-case-is-over view of the legal principle controlling pendente lite awards, which is directly reflected in the inadequacy of the sums provided, is both widely held and thoroughly wrong. The correct standard by which these amounts are to be assessed is instead the familiar one which balances needs as fixed by the parties’ standard of living, on the one hand, and ability to pay, on the other. In Belcher v. Belcher, 271 So. 2d 7, 11 (Fla.1972), the supreme court approved a temporary award under which the husband must continue to support his wife during coverture by paying generally the same expenses (omitting long range and vacation items) and by paying amounts he had been providing prior to their separation. .. .
The court stated further:
The historical balance of ‘need and ability’ remains as the formula in determining alimony during coverture. This principle is repeatedly cited in the authorities as the basis for alimony, support and attorney’s fees to the wife from a husband more able to pay; it continues to undergird support provisions despite the present changes in our divorce laws (now ‘dissolution of marriage’).
The order under review was thus not based Upon a properly-founded exercise of discretion, but upon an error of law, see Wagner v. Wagner, 383 So. 2d 987 (Fla. 4th DCA 1980); compare Canakaris v. Canakaris, 382 So. 2d 1197 (Fla.1980), and cannot therefore be permitted to stand.
There is no reason, however, to require either a further hearing as to temporary relief or that the trial court exercise its discretion upon the appropriate standard.1 This is because for over six months after they separated, Vickers voluntarily sent his wife approximately $1,600 per month without order of court.2 He ceased doing so — an act which inspired the proceedings below — not because of any change in Ms. Vickers' needs or his ability, but because he was informed by counsel that he need not continue. In Belcher, the court stated, as we have seen, that the husband must continue to pay his wife roughly the same amounts he did before separating. The present situation is therefore an a for-tiori one. The parties have jointly recognized that $1,600 monthly is within the husband’s ability and satisfies the wife’s needs, completely in tune with the Belcher test as to a post -separation temporary award. Accord, Jelke v. Jelke, 233 So. 2d 408 (Fla. 3d DCA 1970), cert. denied, 238 So. 2d 107 (Fla.1970). In the virtually admitted absence of any basis to depart from the Vickers’ own conclusions to this effect, we reverse the order below and remand the cause with directions that appellee be required to pay $1,600 per month in temporary alimony and support.
Reversed and remanded with directions.
. The case, which we are told has not even yet been set for final hearing on the financial aspects of the dissolution, has already been inordinately delayed below by the continuing controversy over the misnamed “temporaries” and by, inter alia, the fact that, even though exten sive testimony on temporary relief had been taken before the trial judge, the action was submitted to a master for a so-called “pre-trial hearing” and recommendation as to the final judgment.
. The $1,600 figure included all of the mortgage payments. In the final judgment, Vickers should therefore be credited with his wife’s half of those payments which he has voluntarily made and which he will be ordered to make as a result of this opinion. Abella-Fernandez v. Abella, 393 So. 2d 40 (Fla. 3d DCA 1981).
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By (13 total)
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Dwyn Daniels Robbie v. Robbie, 591 So. 2d 1006 (Fla. 4th DCA 1991)…o generous in his allowances”).1 We have found only one case, cited also by the wife, involving temporary alimony where an appellate court deemed the amount of the award so insufficient as to amount to an abuse of discretion. In Vickers v. Vickers, 413 So. 2d 788 (Fla. 3d DCA 1982), the third district reversed a $215 biweekly temporary alimony and child support award because the trial judge observed that “the only thing I am doing is keeping everybody alive until the final hearing.” As Judge Schwartz said,…
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Lane Mitzenmacher v. Mitzenmacher, 656 So. 2d 178 (Fla. 3d DCA 1995)…need of the spouse requesting the alimony and the ability of the other spouse to pay. Canakaris v. Canakaris, 382 So. 2d 1197 (Fla.1980); Adams v. Adams, 604 So. 2d 494 (Fla. 3d DCA 1992), rev. denied, 614 So. 2d 502 (Fla. 1993); Vickers v. Vickers, 413 So. 2d 788 (Fla. 3d DCA 1982). Since the first Mitzenmacher appeal, it is clear that the former husband’s present inability to pay alimony has not changed. Given these circumstances, therefore, our prior enunciation in the first Mitzenmacher appeal necessarily…
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Weasel v. Weasel, 421 So. 2d 749 (Fla. 4th DCA 1982)…respect to the issue of “adequate care” in determining temporary alimony: The measure of adequate care is the historical need of the wife, ability of the husband to pay and their standard of living (footnote omitted). See also Vickers v. Vickers, 413 So. 2d 788 (Fla. 3d DCA 1982). Unfortunately, the trial judge never gave due consideration to the standard of living to which appellant was accustomed and short circuited the testimonial portion of the hearing before appellant was able to present all of her e…
Previewing 3 of 13 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Canakaris v. Canakaris, 382 So. 2d 1197 (Fla. 1980)
- Annabelle G. Belcher v. Belcher, 271 So. 2d 7 (Fla. 1972)
- Wagner v. Wagner, 383 So. 2d 987 (Fla. 4th DCA 1980)
- Jelke v. Minot Frazier Jelke, 233 So. 2d 408 (Fla. 3d DCA 1970)
- Manuel E. Abella-Fernandez, M.D. v. Abella, 393 So. 2d 40 (Fla. 3d DCA 1981)
- Roper v. Pittwood, Inc., 238 So. 2d 107 (Fla. 1970)