BRENDA GAIL ABERNETHY, APPELLANT,
v.
FRANK CONLEY ABERNETHY, JR., APPELLEE
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The former wife appeals a dissolution of marriage judgment that awarded her only the husband's equity in the marital home as lump sum alimony but no periodic alimony. The court reverses, holding that the trial court abused its discretion by failing to retain jurisdiction to award periodic alimony in the future given the wife's lack of employment and income.
The trial court abused its discretion by failing to retain jurisdiction to award periodic alimony in the future. Although the award of permanent or rehabilitative periodic alimony is discretionary, under these circumstances—where the wife has no current income, uncertain future employment prospects, and minimal earning capacity—the court should have reserved jurisdiction for potential future alimony awards.
[1] A trial court abuses its discretion by failing to retain jurisdiction to award periodic alimony in the future when the former wife's financial circumstances are uncertain…
[2] An award of a former spouse's equity in the marital home as lump sum alimony is insufficient to provide for the former wife's maintenance and support when she resides in…
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“Although an asset to the wife, the home does not furnish her a source of funds for her own maintenance and support. She cannot liquidate the asset as it would require selling the home in which she and her five children live.”
Establishes that lump sum alimony consisting of home equity is inadequate to meet the wife's support needs
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceThe parties were married approximately 15 years and have five children. The wife, now 35+ years old, has a high school education with no further train…
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THOMPSON, Judge.
The former wife appeals a judgment of dissolution of marriage which awarded her the husband’s equity in the marital home in the amount of approximately $5,000.00 as lump sum alimony but awarded neither permanent nor rehabilitative alimony. We reverse.
The parties were married for approximately 15 years and have five children. The wife was 20 years old at the time of the marriage, and has a high school education but has had no further education or training of any kind since the date of her graduation. She has worked briefly for her father in his used car business but has never been employed full time outside of the home. The wife was not employed at the time of the final hearing but was to be employed by her father after the dissolution of the marriage. The wife has made no other effort to locate employment. The husband is employed by Southern Bell Telephone Company. He earned in excess of $35,000 in 1984 and in excess of $31,000 in 1985.
The wife was not earning any income at the time of the dissolution hearing, yet the only alimony awarded was the husband’s equity in the marital home. Although an asset to the wife, the home does not furnish her a source of funds for her own maintenance and support. She cannot liquidate the asset as it would require selling the home in which she and her five children live. The wife may not use the support awarded the children for her personal expenses and support. The court did not even reserve jurisdiction to award periodic alimony in the future.
The award of either permanent or rehabilitative periodic alimony is a matter within the discretion of the trial court and the trial court’s decision on these matters will not be disturbed on appeal unless it is unsupported by the evidence or is an abuse of discretion. However, under the facts of this case we find it was an abuse of discretion for the trial court not to retain jurisdiction to award periodic alimony in the future, should the facts make such an award appropriate. Brown v. Brown, 440 So. 2d 16 (Fla. 1st DCA 1983). There was testimony that the wife’s father will give her a job after the dissolution, but the record does not reflect what amount she will earn or how long she will be employed.
Although the award of $1,000 per month for the support of the children is not overly generous, it does not constitute a reversible abuse of discretion.
REVERSED and REMANDED for further proceedings consistent with this opinion.
SHIVERS and ZEHMER, JJ., concur.
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Citator
Cited By
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Eckroade v. Eckroade, 570 So. 2d 1347 (Fla. 3d DCA 1990)…trial court should have reserved jurisdiction to modify its alimony ruling if in the future the wife demonstrates a need and the husband has the ability to pay alimony. Burchard v. Burchard, 455 So. 2d 625 (Fla. 2d DCA 1984); Abernathy v. Abernathy, 494 So. 2d 309 (Fla. 1st DCA 1986). In his cross-appeal, the husband argues that the trial court erred in awarding the wife attorney’s fees without hearing testimony. Agreeing that the award of attorney's fees based solely on affidavits was error, Ashourian v. As…
Authorities Cited
- Mirth K. Brown v. Brown, 440 So. 2d 16 (Fla. 1st DCA 1983)