RONALD C. MILLER, APPELLANT,
v.
CHERYL L. MILLER, APPELLEE
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In this Florida family law appeal, the Fourth District reversed a dissolution judgment awarding lump sum alimony to the former wife because the former husband lacked the financial ability to pay it. The court also quashed residential restrictions placed on the custodial father and reversed the attorney's fees award, remanding for reconsideration of all issues.
The lump sum alimony award must be reversed because the record established the former husband lacked immediate funds to pay it. The residential restrictions are quashed without prejudice because the record contains no competent substantial evidence demonstrating they are necessary to safeguard the child's best interests. The attorney's fees award must be reversed because it was made without a hearing and without evidence of waiver by the husband.
[1] An award of lump sum alimony is improper when the payor spouse lacks the financial ability to make the payment without substantially endangering his or her economic statu…
[2] When a lump sum alimony award is reversed due to the payor spouse's inability to pay, the cause should be remanded for modification of related matters to achieve equity.
Previewing 2 of 4 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“A judge may award lump sum alimony to ensure an equitable distribution of property acquired during the marriage, provided the evidence reflects (1) a justification for such lump sum payment and (2) financial ability of the other spouse to make such payment without substantially endangering his or her economic status.”
Establishes the legal standard for lump sum alimony, which requires both justification and demonstrated financial ability to pay.
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Join FLexlaw to unlock all legal intelligenceThe parties were dissolved and disputed matters concerning support and living arrangements for their minor child. The trial court awarded the former w…
The full statement of facts, procedural history, and disposition for this case are member content.
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HURLEY, Judge.
The amended final judgment of dissolution in this case, among other things, awarded the former wife fifteen thousand dollars as lump sum alimony. The same judgment, however, candidly acknowledged that a critical problem in the case “is the lack of immediate and ready dollars .... ” Since the latter determination is amply supported by the record, the award of lump sum alimony cannot be sustained. “A judge may award lump sum alimony to ensure an equitable distribution of property acquired during the marriage, provided the evidence reflects (1) a justification for such lump sum payment and (2) financial ability of the other spouse to make such payment without substantially endangering his or her economic status.” Canakaris v. Canakaris, 382 So. 2d 1197, 1201 (Fla.1980). Here, the former husband totally lacks the ability to comply with the court’s award. Consequently, it must be reversed. But, since the lump sum award is part of an integrated effort to assist the former wife, we remand the cause with sufficient authority so that the trial court may “exercise broad discretion to modify the related matters within his original plan for division and support as may be necessary in order to do equity and justice between the parties .... ” Eagan v. Eagan, 392 So. 2d 988, 990 (Fla. 5th DCA 1981).
Next, we address the limitations which the trial court placed on the use of the marital residence. Prior to the final hearing, the parties agreed that the husband would have custody of the minor child. Counsel for the wife also indicated to the court that “we are not contesting the use to the exclusive right of the home. Mrs. Miller wants her daughter to have the continuance of living in the house.” Accordingly, the amended final judgment awarded custody of the minor child to the father and permitted both to live in the marital home “as long as [the father] is unmarried and has no sleep-over or live-in girl friends.” Because restrictions of this nature impact upon the private life of the custodial par- ent, they will be sustained only if the record contains competent substantial evidence to demonstrate that they are required to safeguard the best interests of the child. Trylko v, Trylko, 392 So. 2d 1034 (Fla. 2d DCA), appeal dismissed, 399 So. 2d 1147 (Fla.1981); Hackley v. Hackley, 380 So. 2d 446 (Fla. 4th DCA 1979); see also Dinkel v. Dinkel, 322 So. 2d 22 (Fla.1975). Here, the record is devoid of any supporting evidence. Accordingly, the restrictions are quashed without prejudice to reconsideration on remand.
Finally, we consider the issue of attorney’s fees. Perhaps through a misunderstanding, attorney’s fees were awarded to the wife without a hearing and without a stipulation that affidavits could be used in place of a hearing. The record does not indicate a waiver by the husband and, thus, the award of attorney’s fees must be reversed. However, the court may reconsider the matter on remand. Kalman v. Kalman, 393 So. 2d 641 (Fla. 4th DCA 1981).
REVERSED and REMANDED.
DELL, J., and GEIGER, DWIGHT L., Associate Judge, concur.
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Danoff v. Burton H. Danoff, 501 So. 2d 1361 (Fla. 4th DCA 1987)…Greer v. Greer, 438 So. 2d 535 (Fla. 2d DCA 1983). Restrictions of this nature are sustainable only if the record contains competent, substantial evidence that such restrictions are necessary to safeguard the children’s interests. Miller v. Miller, 423 So. 2d 638 (Fla. 4th DCA 1982); Hackley v. Hackley, 380 So. 2d 446 (Fla. 5th DCA 1979). Since the record in the instant case is devoid of any supporting evidence, the live-in restriction shall be stricken on remand. On the husband’s consolidated appeal, we af…
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Lovell v. Lovell, 14 So. 3d 1111 (Fla. 5th DCA 2009)…n standard. Allen v. Allen, 787 So. 2d 215 (Fla. 5th DCA 2001). There must, however, be competent, substantial evidence that such a restriction or limitation is in the best interests of the children in order for it to be sustained. Miller v. Miller) 423 So. 2d 638 (Fla. 4th DCA 1982). In Miller, our sister court succinctly held that because restrictions such as the one imposed in the present case “impact upon the private life of the custodial parent, they will be sustained only if the record contains competen…
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Frechter v. Frechter, 548 So. 2d 712 (Fla. 3d DCA 1989)…his nature impact upon the private life of the custodial parent, they will be sustained only if the record contains competent substantial evidence to demonstrate that they are required to safeguard the best interests of the child.” Miller v. Miller, 423 So. 2d 638, 639-40 (Fla. 4th DCA 1982); see also Martin v. Martin, 507 So. 2d 1136 (Fla. 3d DCA 1987); Nichols v. Nichols, 491 So. 2d 617 (Fla. 1st DCA 1986). Summarizing, we reverse and remand for a new hearing wherein the trial judge should set forth his fi…
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
- Canakaris v. Canakaris, 382 So. 2d 1197 (Fla. 1980)
- Dinkel v. Dinkel, 322 So. 2d 22 (Fla. 1975)
- McQUIGGAN v. State, 392 So. 2d 988 (Fla. 5th DCA 1981)
- Eagan v. Eagan, 392 So. 2d 988 (Fla. 5th DCA 1981)
- Robley H. Hackley, II v. Hackley, 380 So. 2d 446 (Fla. 5th DCA 1979)
- Marilynn Trylko v. Trylko, 392 So. 2d 1034 (Fla. 2d DCA 1981)
- Osborne v. Osborne, 393 So. 2d 641 (Fla. 4th DCA 1981)