BARBARA LOU MCINTOSH, APPELLANT,
v.
THOMAS FRANCES MCINTOSH, 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.
Barbara Lou McIntosh appealed a divorce judgment challenging the award of $400 per month permanent alimony, denial of the marital home as lump sum alimony, and allegedly inadequate attorney's fees. The court affirmed the alimony awards but reversed and remanded regarding $1,500 in unpaid attorney's fees that the trial court had found reasonable but failed to award.
The court affirmed the $400 monthly alimony award and the denial of the marital home as lump sum alimony as supported by competent substantial evidence and within the trial court's discretion. However, the court reversed and remanded regarding the attorney's fees, requiring the trial court to award the remaining $1,500 that it had found reasonable, while affirming the $350 award for post-appeal services.
[1] Permanent periodic alimony is intended to provide for the needs and necessities of life of a former spouse as established during the marriage, requiring consideration of…
[2] An appellate court will affirm a trial court's determination of alimony if it is supported by competent substantial evidence, and will not substitute its judgment for tha…
Previewing 2 of 5 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“Permanent periodic alimony is used to provide the needs and necessities of life to a former spouse as they have been established by the marriage of the parties.”
Establishes the purpose and standard for permanent periodic alimony awards
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceBarbara Lou McIntosh and Thomas Francis McIntosh were divorced. The trial court awarded Mrs. McIntosh $400 per month in permanent periodic alimony, ov…
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 Competent Substantial Evidence Standard Of Review cases and more on FLexlaw
MILLS, Judge.
Barbara Lou McIntosh appeals from a final judgment of dissolution of marriage. She alleges as error the award by the trial court of only $400 per month permanent alimony and the failure to award her the marital home as lump sum alimony. She further alleges that the amounts awarded as attorney’s fees were inadequate. With the exception hereafter stated, we affirm.
Permanent periodic alimony is used to provide the needs and necessities of life to a former spouse as they have been established by the marriage of the parties. Canakaris v. Canakaris, 382 So. 2d 1197 (Fla.1980). The court must consider the need of one spouse for the funds and the ability of the other to provide them. Cana-karis. While the record demonstrates Mrs. McIntosh’s need, we must find that it also contains competent substantial evidence to support the trial court’s finding that her spouse’s ability to pay extends only to the amount of $400 per month. Since “[i]t is not the function of the appellate court to substitute its judgment for that of the trial court through re-evaluation of the testimony and evidence,” but rather to determine if “the judgment of the trial court is supported by competent substantial evidence,” Kuvin v. Kuvin, 442 So. 2d 203, 206 (Fla.1983), we must affirm on this issue.
In granting lump sum alimony, the trial court should be guided by all relevant circumstances to insure equity and justice between the parties. We cannot say from the record before us that the trial court abused its discretion in denying the lump sum alimony requested by Mrs. McIntosh. She has received in excess of $14,000 cash as a lump sum award and, in addition, is a tenant in common with her ex-spouse of the approximately $151,000 worth of real property possessed by them during the marriage. Finally, even should this court agree that Mrs. McIntosh was shortchanged by the awards made by the trial court, the Florida Supreme Court has found this to be an issue of fact, the determination of which is beyond the scope of appellate review. Conner v. Conner, 439 So. 2d 887 (Fla.1983). We therefore affirm.
The reasonableness of attorney’s fees is an issue of fact to be determined by the trial court. Conner. However, with regard to the attorney’s fee of $3,000 requested for services of Mrs. McIntosh’s counsel during her second appeal, 432 So. 2d 176 (Fla. 1st DCA 1983) appealing after remand 393 So. 2d 582 (Fla. 1st DCA 1981), the trial court found, in an order entered prior to this final judgment awarding $1,500 of this amount, that $3,000 was a reasonable fee for those services, that Mrs. McIntosh could not pay it and that her spouse could. No evidence to the contrary appears in the record. Therefore, no competent evidence supports the trial court’s refusal to award the remainder of the fee. We reverse and remand with instructions to award the remaining $1,500.
With regard to the $350 fee awarded for services since the second appeal, it was not an ipso facto abuse of discretion to award a fee less than the affidavit offered by Mrs. McIntosh, even though no opposition was made. Crispin v. Crispin, 411 So. 2d 218 (Fla. 3d DCA 1982). It was within the trial court’s discretion to determine the amount of the fee based on its evaluation of all relevant factors, Kozelski v. Kozelski, 448 So. 2d 1228 (Fla. 2d DCA 1984), and we therefore affirm.
Affirmed in part and reversed in part and remanded.
NIMMONS, J., and PEARSON, TILLMAN, (Ret.) Associate Judge, concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Authorities Cited
- Canakaris v. Canakaris, 382 So. 2d 1197 (Fla. 1980)
- Kuvin v. Kuvin, 442 So. 2d 203 (Fla. 1983)
- Doyle Edward Conner v. Conner, 439 So. 2d 887 (Fla. 1983)
- Crispin v. Crispin, 411 So. 2d 218 (Fla. 3d DCA 1982)
- McINTOSH v. McINTOSH, 393 So. 2d 582 (Fla. 1st DCA 1981)
- Kozelski v. Kozelski, 448 So. 2d 1228 (Fla. 2d DCA 1984)
- McINTOSH v. McINTOSH, 432 So. 2d 176 (Fla. 1st DCA 1983)