DEBORAH HERR, APPELLANT,
v.
LARRY HERR, APPELLEE
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In this dissolution of marriage case, the Fourth District Court of Appeal reversed the trial court's temporary support award, holding that both the general master's recommendation and the trial court's modification failed to properly apply the legal standard requiring a balance between the wife and children's needs (based on the parties' standard of living) and the husband's ability to pay.
The court held that both the master's recommendation and the trial court's order were deficient under the correct legal standard established in Vickers v. Vickers. Temporary support must be determined by balancing the needs of the wife and children as fixed by the parties' standard of living against the husband's ability to pay, not by a "keep-everybody-alive-until-final-hearing" approach or by finding an award "over generous" without proper factual findings.
[1] Temporary support awards must balance the needs of the parties, as determined by their standard of living, with the ability of the payor spouse to pay.
[2] A general master's report recommending temporary support must include findings of fact regarding the needs of the recipient spouse and children.
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“In Vickers, the district court specifically disapproved the keep-everybody-alive-until-final-hearing approach to temporary support.”
Establishes that the prior Vickers standard explicitly rejected the approach of merely providing subsistence-level support until final judgment.
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Join FLexlaw to unlock all legal intelligenceThe general master recommended temporary support of $2,000 for the wife and two children in a dissolution of marriage case. The general master made fi…
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DELL, Judge.
In this dissolution of marriage suit, the general master recommended that the wife receive $2,000 temporary support for herself and the parties’ two children. The trial court granted the husband’s exceptions to the general master’s report, and the wife appeals.
The general master’s report made findings of fact as to the amount of income each party earned. It made no finding of fact as to the needs of the wife and children. It also said
That the Court can compute the lifestyle of the parties pursuant to Vickers vs. Vickers, [413 So. 2d 788 (Fla. 3d DCA 1983)] but the Husband is living else where and has present income problems such that an award of support may be more than the Husband can afford but less than the Wife needs.
The meaning of this paragraph is not entirely clear. If it constitutes a finding that the husband does not have the ability to pay, then the master erred by recommending an award which his findings of fact do not support. If it is a conclusion that Vick-ers authorizes awards of temporary support in excess of a party’s ability to pay, then the conclusion is legally incorrect. Either reason could have provided a legally sufficient ground to grant the husband’s exceptions. However, the trial court granted the exceptions for a different reason: because it found the master’s award to be “over generous,” citing Vickers.
In Vickers, the district court specifically disapproved the keep-everybody-alive-until-final-hearing approach to temporary support.
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. Id. at 789.
Measured against this standard, both the master’s recommendation and the judge’s order are deficient. Therefore we reverse and remand the cause to the trial court with instructions to conduct such further hearings as may be necessary to determine the needs of the wife and children as well as the husband’s ability to pay, and to enter an order based upon those factual determinations.
ANSTEAD, C.J., and HERSEY, J., concur.
Cases With Similar Vibessemantic neighbors from the corpus
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Dwyn Daniels Robbie v. Robbie, 591 So. 2d 1006 (Fla. 4th DCA 1991)…buse of discretion where “the amount of temporary alimony awarded by the trial court not only exceeds the amount requested by the wife but also appears to exceed the standard of living established by the parties during the marriage.”); Herr v. Herr, 463 So. 2d 447 (Fla. 4th DCA 1985) (court may not authorize temporary alimony awards in excess of party’s ability to pay); Clark v. Clark, 155 Fla. 574, 20 So. 2d 900 (Fla.1945) (award of temporary alimony quashed where chancellor was “entirely too generous in his…
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Isadore Philips Bolton v. Bolton, 898 So. 2d 1084 (Fla. 4th DCA 2005)…al court abused its discretion by awarding temporary support to the wife without regard to his ability to pay. We agree, because a trial court cannot enter a temporary support award that exceeds or nearly exhausts a party’s income. See Herr v. Herr, 463 So. 2d 447, 448 (Fla. 4th DCA 1985); Miller v. Miller, 707 So. 2d 419, 419 (Fla. 4th DCA 1998) (awards that provided the wife with nearly all of the husband’s income were an undue burden); Blum v. Blum, 382 So. 2d 52, 55 (Fla. 3d DCA 1980) (award that left the…
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Fields v. Fields, 533 So. 2d 922 (Fla. 2d DCA 1988)…assessing a temporary support award. Vickers. Second, even without considering the husband’s expenses as he attested in his affidavit, his net weekly salary of $984 does not sustain the present award since it exceeds his earnings. See Herr v. Herr, 463 So. 2d 447 (Fla. 4th DCA 1985) (court may not authorize temporary support award in excess of party’s ability to pay). The temporary support order is therefore reversed, and the case remanded for the trial court to apply the appropriate test set out above for…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Vickers v. Vickers, 413 So. 2d 788 (Fla. 3d DCA 1982)