HELENE CUTLER, APPELLANT,
v.
EDWARD CUTLER, APPELLEE; EDWARD CUTLER, APPELLANT, V. HELENE CUTLER, APPELLEE
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The court held that the trial court abused its discretion by ordering the sale of the marital home and that a hybrid alimony award was improper, requiring both lump sum and permanent alimony.
[1] An award of exclusive possession of the marital home should be made to the wife when she is given custody of the minor children, absent compelling circumstances.
[2] A hybrid alimony award that is contingent upon the death of either spouse, remarriage of the recipient spouse, or a change in the economic status of either spouse is disa…
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Join FLexlaw to unlock all legal intelligenceFollowing a dissolution proceeding, the wife appealed the trial court's judgment regarding alimony and the sale of the marital home. The wife had no s…
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JORGENSON, Judge.
Helene Cutler appeals from a final judgment following a dissolution proceeding which terminated the marriage of sixteen years. For the reasons which follow, we reverse in part, affirm in part and remand.
The parties were married in 1964. Three children were born of the marriage and, at the time of final judgment, were twelve, thirteen and fourteen years of age. The two eldest children have learning disabilities which require special schooling.1
With the exception of an eighteen-month period during the marriage when she worked, Mrs. Cutler has no significant employment history, nor does she have any advanced educational background which would assist her in finding her way into the job marketplace. When the youngest child reaches majority, Mrs. Cutler will be fifty-three years old.
Dr. Cutler, a board-certified cardiologist and internist, has an annual salary of approximately $58,000.00 and is sole stockholder of his P.A. During the course of the marriage, many of the domestic expenses were paid directly by the P.A. Dr. Cutler, at the time of dissolution, had a conservative net worth of $242,775.00. Mrs. Cutler had a net worth of approximately $125,-550.00. The net worth computations included each of the parties’ interest in the marital home, valued by them at $250,000.00, which was subject to a $39,000.00 mortgage.
The trial court granted custody of the children to Mrs. Cutler and ordered child support for each of them. Neither party appeals that portion of the trial court’s judgment.
Mrs. Cutler claims the trial court erred in ordering that the marital domicile be sold and the proceeds therefrom be divided between the parties.2 We agree in the absence of compelling circumstances not present here an award of exclusive possession of the marital home should be made to the wife, when she is given custody of the minor children. Duncan v. Duncan, 879 So. 2d 949 (Fla.1980); Zeller v. Zeller, 396 So. 2d 1177 (Fla. 4th DCA 1981); Smith v. Smith, 378 So. 2d 11 (Fla. 3d DCA 1979). We believe the trial court abused its discretion by not making such an award.
With respect to alimony, the trial court originally ordered Dr. Cutler to pay a lump sum of $84,000.00, payable at the rate of $700.00 per month over a period of ten years. The court further ordered $500.00 per month rehabilitative alimony for a period of two years. At a subsequent hearing, the trial court receded from its lump sum alimony award and indicated that, instead, the award be regarded as periodic and contingent upon the death of either spouse, the remarriage of Mrs. Cutler, or a change in the economic status of either spouse. A similar hybrid alimony award case was specifically disapproved of in Kirchman v. Kirchman, 389 So. 2d 327 (Fla. 5th DCA 1980). We, likewise, disapprove such a hybrid award.
We agree with the appellant that both lump sum and permanent alimony are required in this case. Canakaris v. Canakaris, 382 So. 2d 1197 (Fla.1980); Kuvin v. Kuvin, 412 So. 2d 900 (Fla. 3d DCA 1982); Rosen v. Rosen, 386 So. 2d 1268 (Fla. 3d DCA 1980).3 Permanent rather than rehabilitative alimony is indicated on these facts. Kuvin, supra; Colucci v. Colucci, 392 So. 2d 577 (Fla. 3d DCA 1980); Bowen v. Bowen, 347 So. 2d 675 (Fla. 3d DCA 1977). Mrs. Cutler also claims as error the trial court’s failure to include reasonable dental expenses, in addition to the medical expenses which had been ordered by the trial court, on behalf of the children. Mrs. Cutler’s final point concerns the method by which the trial court dealt with the special educational expenses of the two eldest children. We need not address these issues in light of our direction to the trial court to award both permanent and lump sum alimony. On remand, we direct the trial court to re-address these issues.
On cross-appeal, Dr. Cutler alleges as error the trial court’s order to pay, on Mrs. Cutler’s behalf, any federal income tax for which she might become liable as a result of the alimony award. In view of our remand, we do not address this issue. But see Sumner v. Tart, 362 So. 2d 344 (Fla. 1st DCA 1978); Tsavaris v. Tsavaris, 307 So. 2d 845 (Fla. 2d DCA 1975); Lang v. Lang, 252 So. 2d 809 (Fla. 4th DCA 1971). .
Dr. Cutler also complains that the trial court erred in assessing an accountant’s fee as part of the wife’s costs. We find no merit to this contention and affirm.
Affirmed in part, reversed in part and remanded for further proceedings consistent with the views expressed herein.
. The eldest child has organic brain damage which requires special schooling and treatment. The middle child has psychological problems which, also, result in his need for special schooling and treatment.
. A date of July 1, 1981, was specified by the trial court for the sale. That order was stayed by this court pending the outcome of this appeal.
. On remand, the trial court may wish, when considering the lump sum award, to be guided by the principles announced in Seum v. Seum, 384 So. 2d 223 (Fla. 3d DCA 1980); Cuevas v. Cuevas, 381 So. 2d 731 (Fla. 3d DCA 1980); Bullard v. Bullard, 385 So. 2d 1120 (Fla. 2d DCA 1980); MacDonald v. MacDonald, 382 So. 2d 50 (Fla. 2d DCA 1980).
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Carroll v. Carroll, 471 So. 2d 1358 (Fla. 3d DCA 1985)…’s personal expenses amounted to almost $75,000 in 1983. Permanent rather than rehabilitative alimony is indicated based upon the circumstances in this case and should be awarded to the wife in addition to the lump sum alimony. See Cutler v. Cutler, 421 So. 2d 585, 586 (Fla. 3d DCA 1982). The trial court erred in not awarding the wife permanent periodic alimony of $60,000 net per year and not requiring the husband to be responsible for the taxes. See Colucci; see also Walter v. Walter, 464 So. 2d 538 (Fla.198…
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Cabrera v. Cabrera, 484 So. 2d 1338 (Fla. 3d DCA 1986)…e awarded exclusive use and possession of the marital home until the children reach majority or the parent remarries have almost without exception answered the question affirmatively. Cato v. Cato, 432 So. 2d 768 (Fla.2d DCA 1983); Cutler v. Cutler, 421 So. 2d 585 (Fla.3d DCA 1982); Pino v. Pino, 418 So. 2d 311 (Fla. 3d DCA 1982); Bullard v. Bullard, 413 So. 2d 1238 (Fla.3d DCA 1982); Florence v. Florence, 400 So. 2d 1018 (Fla.1st DCA 1981); Zeller v. Zeller, 396 So. 2d 1177 (Fla.4th DCA 1981); Farrington v.…
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Forster v. Forster, 436 So. 2d 966 (Fla. 3d DCA 1983)…ly reflects that the wife’s funds are inadequate to meet the obligations on the homes. Second, the circumstances indicate that a reduction in rehabilitative alimony would be inappropriate and that an increase is called for instead. Cutler v. Cutler, 421 So. 2d 585 (Fla. 3d DCA 1982). Dr. Forster is a successful ophthalmologist who enjoys a yearly income of $150,000, plus fringe benefits. Mrs. Forster, on the other hand, has no significant employment history. After she obtains her degree in education, she will…
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited (17 total)
- Canakaris v. Canakaris, 382 So. 2d 1197 (Fla. 1980)
- Colucci v. Colucci, 392 So. 2d 577 (Fla. 3d DCA 1980)
- Rosen v. Rosen, 386 So. 2d 1268 (Fla. 3d DCA 1980)
- Lang v. Lang, 252 So. 2d 809 (Fla. 4th DCA 1971)
- Zeller v. Zeller, 396 So. 2d 1177 (Fla. 4th DCA 1981)
- Vernell v. Edge, Inc., 389 So. 2d 327 (Fla. 5th DCA 1980)
- Budagail S. Kirchman v. Kirchman, 389 So. 2d 327 (Fla. 5th DCA 1980)
- Smith v. Smith, 378 So. 2d 11 (Fla. 3d DCA 1979)
- Adams v. Division OF Administration, 378 So. 2d 11 (Fla. 4th DCA 1979)
- Bowen v. Bowen, 347 So. 2d 675 (Fla. 3d DCA 1977)