DONNA JEAN MCCLAY, APPELLANT,
v.
MICHAEL ARNOLD MCCLAY, APPELLEE
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.
Wife appeals final judgment of dissolution in a ten-year marriage with five children, challenging the trial court's denial of alimony, failure to award husband's home interest as lump sum alimony, partial attorney's fee award, and a provision terminating her exclusive home possession if an adult male resides there. The appellate court reversed in part, finding the wife entitled to some permanent alimony or reserved jurisdiction, full attorney's fees given income disparity, and striking the male residency restriction.
The court reversed the judgment and remanded, holding that: (1) the trial court should have awarded some permanent alimony or reserved jurisdiction to do so in the future, despite the husband's current financial burden from child support and debt; (2) the husband should have been required to pay the wife's reasonable counsel fees given the disparity between the parties' incomes; and (3) the prohibition on adult males living in the marital residence during the wife's exclusive possession is erroneous, as such matters should be addressed through future modification if warranted.
[1] A court should reserve jurisdiction to award permanent alimony at a later date when a party's current financial circumstances may prevent immediate alimony payments but f…
[2] A trial court should award reasonable attorney's fees to a party in a dissolution proceeding when there is a significant disparity in the parties' incomes.
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“the court should have made some small award of permanent alimony to preserve her future right to such assistance, see Munger v. Munger, 249 So.2d 772, 773 (Fla. 4th DCA 1971), or at least have reserved jurisdiction to do so at a later day”
Establishes that even nominal alimony awards or reservation of jurisdiction preserve future alimony rights despite current financial constraints.
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceThe parties were married for ten years and had five children ages two to nine. The marital home was jointly owned and awarded to the wife with the chi…
The full statement of facts, procedural history, and disposition for this case are member content.
Join FLexlaw to unlock all legal intelligence© FLexlaw, Inc. — AI-generated enrichments are proprietary. All rights reserved.
Explore caselaw by topic → Browse Exclusive Possession Of Marital Home cases and more on FLexlaw
DOWNEY, Judge.
The wife seeks reversal of a final judgment of dissolution.
This ten year marriage produced five children, ages two to nine. The home was jointly owned and the wife was given actual custody of the children under a shared responsibility arrangement. The husband has income of over $3,000 per month while the wife earns about $100 per week from babysitting additional children along with her own. The wife held a teacher’s certificate but has not used it since beginning her family, which has taken her full time during the marriage.
The final judgment awarded the wife child support of $300 per month per child, required the husband to pay numerous outstanding bills, awarded her one half of her attorney’s fees, and no alimony. The wife contends she should have been awarded the husband’s interest in the marital home as lump sum alimony as well as permanent periodic alimony and all of her attorney’s fees. In addition, she argues that the provision of the judgment which terminated her exclusive possession of the marital home “if an adult male takes up residence therein,” is erroneous. Our study of the record and appellant’s brief (appellee did not favor us with a brief) convinces us that the appellant’s contentions are correct.
We appreciate that under the husband’s present financial burden, what with large child support and debt payments, he may not be in a position to pay any significant alimony; however, those things will pass and eventually he will have the ability to do so and meet her needs. Therefore, we believe the court should have made some small award of permanent alimony to preserve her future right to such assistance, see Munger v. Munger, 249 So. 2d 772, 773 (Fla. 4th DCA 1971), or at least have reserved jurisdiction to do so at a later day, see Moore v. Moore, 401 So. 2d 841 (Fla. 5th DCA 1981).
Furthermore, in view of the disparity between the incomes of the parties the husband should have been required to pay appellant’s reasonable counsel fees.
Finally, we reverse the prohibition on adult males living in the marital residence during the wife’s exclusive possession thereof. Such a provision would preclude one of their sons living there after he passes his eighteenth birthday. Like the Second District Court of Appeal in Tyler v. Tyler, 427 So. 2d 1027 (Fla. 2d DCA 1983), we believe the better way to handle this situation is by way of future modification. Should a situation arise whereby the husband feels that either the welfare of his children or his rights are being harmed by a male resident, he can seek modification of the possessory rights of the wife. This holding does not conflict with our decision in Whiteley v. Whiteley, 329 So. 2d 352 (Fla. 4th DCA 1976), because there the husband’s counsel had stipulated in the trial court to such a provision.
Accordingly, the judgment appealed from is reversed in part and the cause is remanded for further proceedings consistent with this opinion.
REVERSED IN PART AND REMANDED, with directions,
LETTS and DELL, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By (13 total)
-
Linn v. Linn, 464 So. 2d 614 (Fla. 4th DCA 1985)…ent legal counsel. Gerber v. Gerber, 392 So. 2d 317 (Fla. 4th DCA 1980), appeal after remand, 437 So. 2d 798 (Fla. 4th DCA 1983). The disparity between the parties’ incomes in this case requires that husband pay all of wife’s fees. McClay v. McClay, 447 So. 2d 1026 (Fla. 4th DCA 1984). We find no error in the award of attorneys’ fees. We therefore affirm in part, reverse in part, and remand with instructions to enter a judgment for permanent, periodic alimony. DELL and WALDEN, JJ., concur.…
-
Mandy v. Williams, 492 So. 2d 759 (Fla. 4th DCA 1986)…dgens v. Hudgens, 411 So. 2d 354, 355 (Fla. 2d DCA 1982). This court has held that a trial court’s failure to award fees to a wife whose financial position is substantially inferior to her husband’s constitutes abuse of discretion. McClay v. McClay, 447 So. 2d 1026 (Fla. 4th DCA 1984); Johns v. Johns, 423 So. 2d 443 (Fla. 4th DCA 1982). But where the parties’ financial positions are comparable, an award of attorney’s fees is not appropriate. Cummings v. Cummings, 330 So. 2d 134 (Fla. 1976); Wenz v. Codings, 41…
-
Howard v. Howard, 467 So. 2d 768 (Fla. 1st DCA 1985)…her use and possession of the marital home upon occupation of that home by another adult of the opposite sex. Such provision, literally enforced, would preclude the couple’s son living there after he passes his eighteenth birthday. McClay v. McClay, 447 So. 2d 1026 (Fla. 4th DCA 1984). Should a situation arise whereby the husband feels that the welfare of his children is threatened or his rights are being infringed upon by the presence of a male resident, he can seek modification of the possessory rights of th…
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
- Whiteley v. Whiteley, 329 So. 2d 352 (Fla. 4th DCA 1976)
- Deortha A. Moore v. Moore, 401 So. 2d 841 (Fla. 5th DCA 1981)
- Tyler v. Tyler, 427 So. 2d 1027 (Fla. 2d DCA 1983)
- Bailey Lee Sloan v. State, 249 So. 2d 772 (Fla. 3d DCA 1971)