JOHN G. KERNAN, APPELLANT,
v.
VIOLA D. KERNAN, APPELLEE
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In this Florida alimony case, the trial court awarded alimony based on the husband's anticipated ability to pay, assuming the IRS would substantially reduce his tax payment obligations in the future. The appellate court reversed, holding that alimony awards must be based on present financial circumstances, not speculative future events.
The court held that the alimony award was error because it was improperly based on a future occurrence rather than on present circumstances. Alimony awards must be calculated based on the payor's current ability to pay, not on anticipated future changes. If the husband's tax obligations are substantially reduced by the IRS, the wife may then petition for modification based on changed circumstances and the husband's increased ability.
[1] An alimony award cannot be based on a finding of ability to pay that relies on a speculative future reduction of tax obligations by the IRS.
[2] An alimony award must be based on present circumstances, not on future occurrences, to avoid improperly shifting the burden of proof at modification hearings.
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Join FLexlaw to unlock all legal intelligence“The trial court should have properly considered the husband's ability at the present time, not what might occur because of the possible benevolent attitude by the Internal Revenue Service at some unspecified future date.”
Establishes the core holding that alimony must be based on present circumstances, not speculative future events.
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Join FLexlaw to unlock all legal intelligenceThe trial court granted an alimony award to the wife based on findings of the husband's ability to pay. The court's award was predicated on the assump…
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COBB, Judge.
The trial court in this case granted an alimony award based upon a finding of the husband’s ability to pay
[Bjecause of the strong likelihood the Internal Revenue Service will substantially reduce the monthly payments (he) is required to make on account of the parties’ federal income taxes for 1985 and prior years upon considering the financial obligations imposed on (him) by this final.judgment.
We find this award was error. For one thing, there was no evidence presented to the trial court that the IRS would reduce the required payments. For another, the amount of the alimony award is improperly based on a future occurrence rather than on present circumstances, and thus erroneously shifts the burden of proof at any subsequent modification hearing. See Shapiro v. Shapiro, 452 So. 2d 81 (Fla. 1st DCA 1984); Henderson v. Henderson, 226 So. 2d 699 (Fla. 4th DCA 1969); and Traylor v. Traylor, 214 So. 2d 15 (Fla. 1st DCA 1968).
The trial court should have properly considered the husband’s ability at the present time, not what might occur because of the possible benevolent attitude by the Internal Revenue Service at some unspecified future date. The husband’s testimony at trial indicated that the IRS wanted a minimum of $1,000 per month with the amount possibly rising. The trial court seems to imply, and the appellee urges, that the burden is on the husband to move to modify based on “unchanged circumstances” should the IRS not reduce his obligation. The opposite is the case. If the $1,000 payment is substantially lowered, the wife can then petition for a modification based on changed circumstances and increased ability. See § 61.14, Fla. Stat. (1985). We find no error, however, in the trial court’s attorney fee award in favor of the wife.
REVERSED and REMANDED for further proceedings consistent with this opinion.
ORFINGER and COWART, JJ., concur.
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Cited By (12 total)
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Rovena L'Tanya R. Nelson v. Miles Vernard Nelson, 651 So. 2d 1252 (Fla. 1st DCA 1995)…); Traylor v. Traylor, 214 So. 2d 15 (Fla. 1st DCA 1968) (error to consider husband’s potential interest in father’s living trust created six years earlier where possibility of income from such trust is too remote and speculative); Kernan v. Kernan, 495 So. 2d 275 (Fla. 5th DCA 1986) (error to consider possible benevolent treatment of husband by IRS at some unspecified future date). In view of these cases, we find the trial court erred in considering a reduction in the husband’s income due to anticipated ren…
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Thilem v. Thilem, 662 So. 2d 1314 (Fla. 3d DCA 1995)…rds. First, the trial court must reevaluate the wife’s permanent periodic alimony award. Most notably, the trial court’s order lacks findings that the wife needs alimony support and that the husband has the present ability to pay. Kernan v. Kernan, 495 So. 2d 275 (Fla. 5th DCA 1986); Shapiro v. Shapiro, 452 So. 2d 81 (Fla. 1st DCA 1984). Rather, the trial court seems to base the alimony award on the fact that the husband once “contributed” $49,000 to the marriage in 1992. While a trial court may base an ali…
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Edwards v. Sanders, 622 So. 2d 587 (Fla. 1st DCA 1993)…00.00 monthly. Next, the trial court’s order anticipates appellant’s receipt of social security benefits in light of appellant’s serious medical problems. The trial court’s reliance on these anticipated benefits was erroneous. See Kernan v. Kernan, 495 So. 2d 275 (Fla. 5th DCA 1986) (error to award alimony on strong likelihood of benevolent action on the part of the IRS); cf. Marks v. Marks, 576 So. 2d 859 (Fla. 3d DCA 1991) (evidence that one of payor’s construction firms was “near” bankruptcy insufficient…
Previewing 3 of 12 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Traylor v. Traylor, 214 So. 2d 15 (Fla. 1st DCA 1968)
- Henderson v. Henderson, 226 So. 2d 699 (Fla. 4th DCA 1969)
- Shapiro v. Shapiro, 452 So. 2d 81 (Fla. 1st DCA 1984)