EDWARD K. MILLER, APPELLANT,
v.
FRANCES S. MILLER, APPELLEE
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In this post-divorce dispute, the trial court modified a 1978 final judgment to recharacterize the ex-wife's $64,000 lump sum alimony award as a one-half interest in the husband's pension and profit-sharing plan. The appellate court reversed, holding that lump sum alimony vests at entry of judgment and is not subject to modification, though the manner of payment may be adjusted.
The court held that lump sum alimony vests at the time entry of the final judgment and is not subject to modification. Although the manner of payment of lump sum alimony may be modified upon a showing of changed circumstances, the trial court erred in modifying the award itself from a fixed $64,000 to a one-half interest in the plan.
[1] Lump sum alimony vests at the time of entry of the final judgment and is not subject to modification.
[2] A trial court errs when it modifies a final judgment to grant a party an interest in a pension plan instead of the originally awarded lump sum alimony.
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Join FLexlaw to unlock all legal intelligence“Lump sum alimony vests at the time of entry of the final judgment and is not subject to modification.”
Establishes the core legal principle that lump sum alimony awards become final and immutable upon entry of judgment.
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Join FLexlaw to unlock all legal intelligenceEdward and Frances Miller were divorced in 1978 after 26 years of marriage. The final judgment awarded Frances $64,000 as lump sum alimony, payable wh…
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RYDER, Chief Judge.
Appellant, Edward K. Miller, and appel-lee, Frances S. Miller, were divorced in 1978 after a twenty-six year marriage. The husband is a medical doctor. One provision of the final judgment granted the wife $64,000.00 as lump sum alimony, which was to be paid when the husband’s pension and profit sharing accumulations were withdrawn or paid to him in installments. The husband appealed that judgment and this court affirmed. Miller v. Miller, 381 So. 2d 776 (Fla. 2d DCA 1980).
In late 1982, the wife filed a supplemental petition requesting that the court clarify the final judgment and alleging that the $64,000.00 award was one-half of the amount then existing in the pension and profit sharing plan and that she was being deprived of her property without due process of law because she had a vested interest in the award but no access to the fund from which withdrawals were solely within the husband’s control. Because distribution was not made in 1978, the amount in the pension and profit sharing plan continued to grow and $64,000.00 no longer represented one-half of that fund. Both parties filed motions for summary judgment.
The trial court granted the wife’s motion, ruling that it was the court’s intention when it entered the final judgment in 1978 to award to the wife a one-half interest in the husband’s pension and profit sharing plan and that, when distribution from the plan is made, the wife will maintain a one-half interest in it. The husband appeals from that order. In the matter sub judice, we are faced with the problem of what the trial judge may have intended to do and the consequences of what was actually done. The original order was explicit and awarded the wife $64,000.00 as lump sum alimony but no interest in the plan. Had the wife sought an interest in the pension and profit sharing plan rather than a lump sum award of money, she had a right to appeal the trial judge’s order — but she did not. Lump sum alimony vests at the time of entry of the final judgment and is not subject to modification. Philipose v. Philipose, 431 So. 2d 698 (Fla. 2d DCA 1983); Horne v. Horne, 289 So. 2d 39 (Fla. 2d DCA 1974).
Therefore, the trial judge erred when he modified the final judgment to grant the wife a one-half interest in the pension and profit sharing plan rather than the original lump sum of $64,000.00.
Even though a lump sum alimony award is not modifiable, the manner of its payment may be modified. Philipose. We reverse and set aside the order modifying the original final judgment without prejudice to the wife to seek a modification of the manner of payment of the lump sum alimony upon a proper showing of change of circumstances.
REVERSED.
GRIMES and OTT, JJ., concur.
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Citator
Cited By
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Semko v. Semko, 537 So. 2d 588 (Fla. 3d DCA 1988)…ubsequent order requiring distribution of appellant’s retirement plan constitutes a redetermination of the parties’ property rights and improperly modifies a vested right. See Harrell v. Harrell, 515 So. 2d 1302 (Fla. 3d DCA 1987); Miller v. Miller, 455 So. 2d 436 (Fla. 2d DCA 1984), review denied, 462 So. 2d 1107 (Fla.1985); Covin v. Covin, 403 So. 2d 490 (Fla. 3d DCA 1981); Schneider v. Schneider, 296 So. 2d 77 (Fla. 3d DCA 1974); Minis v. Ellison, 233 So. 2d 156 (Fla. 3d DCA 1970). See also Franks v. Frank…
Authorities Cited
- Philipose v. Philipose, 431 So. 2d 698 (Fla. 2d DCA 1983)
- Horne v. Alton L. Horne, 289 So. 2d 39 (Fla. 2d DCA 1974)