JAMES L. KENNEDY, APPELLANT,
v.
JOANN KENNEDY, APPELLEE

Fla. 1st DCA | 1985-03-07
No. AS-413
THOMPSON and WIGGINTON, JJ., concur.
464 So. 2d 1289 Florida District Court of Appeal, First District (1985) Positive Treatment
Cited by 20 cases

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.

Synopsis

In this alimony modification appeal, the court addressed whether a trial court properly imposed a lien on the husband's notes and mortgages to secure alimony payments, and whether the effective date of the alimony reduction was properly set. The court affirmed the imposition of a lien based on evidence of the husband's intent to be uncooperative but vacated the lien as to all mortgages, requiring the trial court to limit it to property reasonably necessary to secure the payments.


Holding

The court affirmed that a lien was proper based on evidence of the husband's intent to be uncooperative, but reversed and remanded regarding the scope of the lien, holding that the trial court abused its discretion by placing a lien on all mortgages when the monthly income far exceeded the monthly obligation. The court vacated the effective date provision and remanded with directions to set it on or before March 10, 1983, in the trial court's discretion. The court affirmed the $500 per month reduction and the treatment of past-due alimony as a charge against the estate while clarifying that alimony accruing after death is not a charge against the estate.


Headnotes

[1] A court may impose a lien to secure alimony payments when a party intends to convey or conceal assets to avoid that obligation.

[2] A lien securing alimony payments is proper only where there is evidence of intent to be uncooperative or to convey or conceal assets.

Previewing 2 of 6 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

Key Quotes

“a lien is proper only where there is evidence of intent to be uncooperative or to convey or conceal assets”

Establishes the legal standard for imposing a lien to secure alimony payments under Florida law

Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.

Join FLexlaw to unlock all legal intelligence

Facts & Procedural History

James and Joann Kennedy divorced in 1976 with an initial alimony order of $750 per month, later increased to $1,000. The husband remarried, moved to L…

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.


Opinion of the Court
ZEHMER, Judge.

ZEHMER, Judge.

James L. Kennedy, the former husband, appeals an order denying in part his petition for modification of alimony. Joann Kennedy, the former wife, cross-appeals from the same order. We affirm in part and reverse in part.

The marriage of the parties was dissolved in 1976 by a final judgment of the Circuit Court of Okaloosa County which effected a property settlement and ordered the husband to pay $750 per month permanent periodic alimony. Several months later, a modification order increased this amount to $1,000 per month. Thereafter, the husband remarried and moved to his new wife’s home state of Louisiana. He sold his property interests in Florida and received in payment notes secured by mortgages on the property. He has suffered substantial medical problems, and his new wife has been appointed curator of his estate by a Louisiana court.

This modification proceeding commenced in July 1981 when appellee wife filed a petition alleging that appellant intended to remove his property from the state and deprive her of alimony. Her petition requested the court to protect her interest by (1) ordering the lump-sum payment of the present value of her alimony, or (2) giving her a security interest in the husband’s assets. Appellant husband counter-petitioned for elimination or reduction of alimony based on changed circumstances.

Some eighteen months later, the matter came on for hearing before the Circuit Court of Okaloosa County. In the order entered March 10, 1983, the court determined that appellant husband was in arrears in the payment of alimony in the amount of $9,500 and imposed “a lien against all sums due and to become due from all notes and mortgages” owned by the husband and recorded in Okaloosa County. The lien so ordered was “placed against said mortgages jointly and severally to secure the payment of the arrears of alimony in the amount of $9,500 at the rate of $500 per month beginning April 1,1983.” The order also provided: “The proceeds or payments on all of these eight (8) notes and mortgages shall be held in a constructive trust by the recipient of the payments thereof for and on behalf of the payment of the arrearage_” Finding that a “substantial change of circumstances” had occurred warranting modification of the periodic alimony, the court ordered the alimony “reduced to the sum of $500 per month commencing 1 April 1983,” payable on the first day of each month thereafter. The court order further specified:

As each monthly alimony payment becomes due, the rights thereto shall vest and be chargeable against the estate of the petitioner, James L. Kennedy, Sr., and shall likewise be secured by the lien against all eight of the above-described notes and mortgages of the petitioner, and the recipient of the monthly payments on said notes and mortgages shall hold such funds in a constructive trust for the payment of the reduced alimony due the respondent each month beginning April 1, 1983.

The appellant husband’s first point on appeal is that the court erred in placing a lien against the notes and mortgages to secure his payment of periodic alimony. Relying on White v. White, 429 So. 2d 730 (Fla. 1st DCA 1983), and Davis v. Davis, 358 So. 2d 126 (Fla. 1st DCA 1978), he argues that the evidence was insufficient to support a finding of intent on his part to convey or conceal assets for the purpose of avoiding payment of alimony. In any event, appellant contends, the trial judge abused his discretion in placing a lien against all appellant’s assets.

Section 61.11, Florida Statutes (1981), provides in part:

When either party is about to remove himself or his property out of the state, or fraudulently convey or conceal it, the court may award a ne exeat or injunction against him or his property and make such orders as will secure alimony to the party who should receive it.

(emphasis added.) This statute authorizes the court to impose a lien to secure the payment of alimony where a party intends to convey or conceal assets to avoid that obligation. Both White and Davis stand for the proposition that “a lien is proper only where there is evidence of intent to be uncooperative or to convey or conceal assets.” White v. White, supra, at 732. The facts and issues in this case differ from White and Davis sufficiently that neither case is controlling. The record in this case contains sufficient evidence of the husband’s intent to be uncooperative and avoid payment of alimony to support the trial court’s order imposing a lien to secure alimony payments. See Carter v. Carter, 164 So. 2d 219 (Fla. 1st DCA 1964).

It does appear, however, that the trial court abused its discretion in imposing a lien on all the notes and mortgages to secure the payment of $500 per month periodic alimony and the temporary payment of $500 per month in arrearages. The total income from all mortgages is over $3,500 per month—more than seven times the monthly indebtedness being secured. The lien against all these notes and mortgages is vacated with directions that the trial court, on remand, impose a lien on only that portion of the property reasonably necessary to secure the monthly payments ordered.

The appellant husband next complains that the trial judge erred in ordering that the reduced alimony payments became effective April 1, 1983 (subsequent to the date of the order), rather than August 11, 1981, the date appellant filed his counter-petition for reduction of alimony. The rule appears to be well settled that the trial judge

has the discretion to make the modification effective as of the date of the petition for modification ... or subsequent thereto but prior to the date of the order of modification. See McArthur v. McArthur, 106 So. 2d 73 (Fla.1958); Simon v. Simon, 155 So. 2d 849 (Fla. 3d DCA 1963).

Brisco v. Brisco, 355 So. 2d 506, 508 (Fla. 2d DCA 1978). Accord, Lau v. Lau, 407 So. 2d 927 (Fla. 3d DCA 1981). We do not read Friedman v. Friedman, 307 So. 2d 926 (Fla. 3d DCA 1975), and Meltzer v. Meltzer, 262 So. 2d 470 (Fla. 3d DCA 1972), cited by appellant, as abrogating this discretionary rule and requiring, as a matter of law, that the modification must always become effective on the date the petition is filed. The record in the instant case supports the trial court’s exercise of discretion in refusing to make the order effective from the filing of the petition. On the other hand, the reduced alimony was not ordered to take effect “prior to” the date of the order of modification but subsequent thereto, contrary to the applicable rule. Therefore, the effective date of the order is vacated with directions to make the order effective on or before March 10, 1983, as determined by the trial court in the exercise of its discretion on remand.

Appellant’s contention that the court erred in failing to reduce the monthly alimony below $500 because of the husband’s diminished ability to pay and the wife’s lack of need is without merit. Appellant has not demonstrated any abuse of discretion on this point. Finally, the appellant husband contends that the trial court erred in establishing the permanent periodic alimony as a charge against his estate, arguing that the language of the order is unclear and may impose an obligation on his estate to pay alimony after his death. Appellant has no obligation to pay alimony after his death. E.g., White v. White, supra. Past-due installments of alimony, however, become vested property rights enforceable against his estate. E.g., Gottesman v. Gottesman, 202 So. 2d 775, 777 (Fla. 3d DCA 1967). As we construe the language of the order, the estate is not obligated to pay alimony accruing after appellant’s death and only alimony accruing prior to appellant’s death and remaining unpaid shall become a charge against his estate. We see no reason to disturb the order in this regard.

The appellee wife’s cross-appeal raises four points concerning the trial court’s abuse of discretion in reducing the alimony to $500, failing to award lump-sum alimony equal to the present value of periodic alimony, calculating the alimony ar-rearages due, and failing to award the wife attorney’s fees and costs, as well as to impose sanctions against the husband. We find no abuse of discretion on any of these points.

AFFIRMED IN PART, REVERSED IN PART, and REMANDED.

THOMPSON and WIGGINTON, JJ., concur.


Cases With Similar Vibessemantic neighbors from the corpus


Citator

Cited By

  • Watford v. Watford, 605 So. 2d 1313 (Fla. 4th DCA 1992)
    …e wife’s awards. While section 61.08(3), Florida Statutes (1989) permits the trial court to order a lien on the property of a spouse to secure an alimony award, the trial court abuses its discretion by imposing an excessive lien. Kennedy v. Kennedy, 464 So. 2d 1289 (Fla. 1st DCA 1985). In this case the trial court imposed a lien on over one million dollars of assets for an award of $100,000 and an award of permanent alimony. Since several of the assets alone were worth more than that, the trial court should ha…
  • Carrison v. Carrison, 486 So. 2d 1363 (Fla. 1st DCA 1986)
    …the wife.1 The husband argues that prior case law indicates that such a lien is proper only where the record contains evidence of an intent on the encumbered spouse’s part to be uncooperative or to convey away or conceal assets. Kennedy v. Kennedy, 464 So. 2d 1289 (Fla. 1st DCA 1985); White v. White, 429 So. 2d 730 (Fla. 1st DCA 1983). However, the trial court had before him a number of peculiar facts: First, the primary marital assets of the parties were contained in the H. George Carrison Revocable Trust; a…
  • RAY v. RAY, 707 So. 2d 358 (Fla. 2d DCA 1998)
    …for modification or subsequent thereto, but it cannot modify alimony that was due prior to the filing of the petition. See McArthur v. McArthur, 106 So. 2d 73 (Fla.1958); Brisco v. Brisco, 355 So. 2d 506, 508 (Fla. 2d DCA 1978); Kennedy v. Kennedy, 464 So. 2d 1289, 1291 (Fla. 1st DCA 1985). Because Mr. Ray did not file his “petition for modification” until March 29, 1995, the trial court could not modify any alimony due prior to that date. Thus, the trial court erred in terminating Mrs. Ray’s support on Janua…

Previewing 3 of 10 citing cases — full citator treatment, depth of discussion, and citing context are member features.

Join FLexlaw to unlock all legal intelligence

Authorities Cited

Full citator, related cases, and AI research tools

Open in FLexlaw