RICHARD A. POTTER, APPELLANT,
v.
JUNE W. POTTER, APPELLEE
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In a dissolution of marriage case, the Florida District Court of Appeal reversed the trial court's alimony award based on a fixed mathematical formula, holding that permanent periodic alimony must be determined by considering multiple statutory factors including need, ability to pay, and the marital standard of living, not by a formulaic approach that ignores these broader circumstances.
The formula used violates Florida alimony law because it focuses exclusively on income changes and lacks necessary relationship to the multiple statutory factors governing alimony determinations. The court's award of special equity in the real estate business was not an abuse of discretion and is affirmed.
[1] Permanent periodic alimony must be determined based on the needs of one spouse and the ability of the other spouse to provide funds, considering factors such as earning a…
[2] A fixed alimony formula that automatically adjusts based solely on income fluctuations may improperly alter the burden of proof for future modifications and may not adequ…
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Join FLexlaw to unlock all legal intelligence“The two primary considerations in determining permanent periodic alimony are the "needs of one spouse for the funds and the ability of the other spouse to provide the necessary funds," to maintain the marital standard of living for each when possible.”
Establishes the foundational legal standard for alimony determinations under Florida law.
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Join FLexlaw to unlock all legal intelligenceRichard and June Potter were parties to a dissolution of marriage. The trial court awarded June permanent periodic alimony using a formula of one-thir…
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WENTWORTH, Judge.
Appellant seeks review of a dissolution order by which appellee was awarded permanent periodic alimony, the amount to be determined by a flexible formula based on the parties’ respective incomes. We find that the formula used by the trial court does not conform to the proper standard for alimony based on need and ability to pay. We therefore reverse the order and remand for reconsideration.
The order provides:
Respondent is hereby awarded permanent periodic alimony in an amount equal to one-third (⅛) of the Petitioner’s pretax, net earned income, reduced by one-third (Vs) of the Respondent’s pre-tax net earned income. Such alimony shall abate for such period of time that the Respondent’s income exceeds two-thirds (⅜) of the Petitioner’s income. The alimony shall be adjusted quarterly unless changed upon application. Both parties shall furnish the other within ten (10) days following the end of each quarter period a sworn statement indicating their pre-tax net earned income for the prior quarterly period. The permanent periodic alimony for the first July 1, 1984, period is hereby fixed by the Court, based upon the Petitioner’s income of $38,400.00 per year and the Respondent’s income of $3,240.00 per year, at $976.67 per month. The first said payment shall be due May 1, 1984, with a like payment on the first of each month thereafter, except as modified from time to time as formerly provided herein.
The two primary considerations in determining permanent periodic alimony are the “needs of one spouse for the funds and the ability of the other spouse to provide the necessary funds,” to maintain the marital standard of living for each when possible. Canakaris v. Canakaris, 382 So. 2d 1191, 1201, 1202 (Fla.1980). The criteria to be used in establishing an amount of alimony include the parties’ earning ability, age, health, education, the duration of the marriage, the standard of living enjoyed during its course, and the value of the parties’ estates. Id.
The formula applied in this case would result in alimony being adjusted quarterly by an indefinite amount, which would have no necessary relationship with many of the then existing relevant circumstances. Since change in one or both of the parties’ incomes would be only one of the potential factors affecting actual need and ability to pay alimony under our law, supra, we conclude that the fixed formula in question improperly alters the burden of proof with respect to future modifications. The effort to avoid judicial intervention is, of course, commendable, and the difficulty in achieving that end by a binding order should not deter the parties’ voluntary effort to apply the formula in question, or some comparable measurement of their relative positions, in adapting to such changes as may occur following any final order. Appellant, in addition to challenging the alimony formula, also argues that the trial court abused its discretion in granting appellee a special equity in her real estate business. Appellant testified that he spent considerable time and money establishing and improving the real estate office during the marriage. We find no abuse of discretion by the trial court in its findings on this issue.
The order is accordingly reversed and the cause remanded for a reconsideration of alimony based on the cited criteria.
ERVIN and ZEHMER, JJ., concur.
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Pirino v. Pirino, 549 So. 2d 219 (Fla. 5th DCA 1989)…he standard of living of the parties prior to a divorce is only one factor to be examined when setting the amount of alimony. Canakaris, supra. The primary criteria remains the wife’s need coupled with the husband’s ability to pay. Potter v. Potter, 477 So. 2d 67 (Fla. 1st DCA 1985). Clearly the husband cannot be required to maintain the wife’s standard of living when this maintenance stretches beyond his financial capacity. Indeed, it is the exceptional case when a couple’s resources and earnings prove suff…
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Safferstone v. Safferstone, 501 So. 2d 165 (Fla. 3d DCA 1987)…loyment at St. Thomas University, his additional work at Miami-Dade Community College, and his demonstrated earning capacity, I cannot agree with the majority’s reasoning that the trial court’s judgment is excessively generous. Cf. Potter v. Potter, 477 So. 2d 67 (Fla. 1st DCA 1985) (alimony award should be based upon parties’ earning abilities, age, health, education, duration of marriage, standard of living and value of parties’ estates); De Cenzo v. De Cenzo, 433 So. 2d 1316 (Fla. 3d DCA 1983) (award of a…
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Wiesenfeld v. Wiesenfeld, 95 So. 3d 959 (Fla. 1st DCA 2012)…equesting party cannot be self-supporting. Griffith v. Griffith, 528 So. 2d 1325, 1326 (Fla. 5th DCA 1988). Therefore, where alimony or its modification is at issue, the trial court must determine the payee’s actual financial need. Potter v. Potter, 477 So. 2d 67, 68 (Fla. 1st DCA 1985). A trial court is authorized to modify alimony retroactively to the filing date of the petition for modification “as equity requires, giving due regard to the changed circumstances or the financial ability of the parties.” §…
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