GERARD P. KINZLER, APPELLANT,
v.
BETTY JO KINZLER, APPELLEE
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In this dissolution of marriage appeal, the Florida Fifth District Court of Appeal reversed the trial court's award of permanent periodic alimony and attorney's fees to the former wife, finding that both awards were unsupported by the evidence where the parties were of similar age, health, education, and economic circumstances.
The court held that awarding permanent periodic alimony was an abuse of discretion where both parties were self-supporting with similar education and employment status, the wife's disposable income exceeded the husband's after child support obligations, and the wife's standard of living had improved. The court also held that it is error to order alimony payments to begin at a future date, and it was error to award attorney's fees where the parties departed the marriage in relatively equal economic circumstances.
[1] An award of permanent periodic alimony is an abuse of discretion when both parties are of similar age and health, possess master's degrees, are gainfully employed, and th…
[2] It is error to order the commencement of permanent periodic alimony payments at a future date, as the determination of need and ability to pay must be based on present ci…
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Join FLexlaw to unlock all legal intelligence“Although the gross income of the husband is somewhat higher than that of the wife, when the husband's income is considered in light of the husband's child support obligations, his disposable income is actually less than that of the wife.”
Establishes that despite higher gross income, the husband's actual disposable income was less than the wife's, undermining the basis for alimony.
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Join FLexlaw to unlock all legal intelligenceThe husband and wife were of similar age and in good health, each holding master's degrees and employed in their respective professions. Although the …
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ORFINGER, Judge.
The former husband appeals from a final judgment of dissolution of marriage, contending that the trial court erred in awarding permanent periodic alimony and attorney’s fees to the former wife. We agree on both issues and reverse.
The evidence before the court showed that the husband and wife, of similar age and in good health, each had master’s degrees and were gainfully employed in their respective professions. Although the gross income of the husband is somewhat higher than that of the wife, when the husband’s income is considered in light of the husband’s child support obligations, his disposable income is actually less than that of the wife. Not only is the wife currently self-supporting, it appears that her standard of living has improved somewhat since the parties separated. Under these circumstances the award of permanent periodic alimony was an abuse of discretion, thus error. Canakaris v. Canakaris, 382 So. 2d 1197 (Fla.1980).
Although not raised by either party, we note that the payment of permanent periodic alimony was not ordered to begin until a future date (the older daughter’s graduation from high school), which was erroneous. Just as this court held in Spa-nogle v. Spanogle, 376 So. 2d 249 (Fla. 5th DCA 1979) that it is error to order an automatic increase in alimony in the future when child support payments end, it is likewise error to order the start of alimony payments at a point in the future. The determination of a need for alimony is based on the evidence of present need and ability to pay. There is no way to predetermine those factors for some future time. See also Reid v. Reid, 365 So. 2d 1050 (Fla. 4th DCA 1978) (it is error for a trial court to order an automatic increase in alimony once child support obligations cease by merely redesignating the amount of the payments as alimony rather than child support without a showing of need and ability at that time).
It was also error for the trial court to order the husband to contribute to the wife’s attorney’s fees. “Where the parties depart the marriage in relatively equal economic circumstances, it is error to award attorney’s fees to one party.” Sizemore v. Sizemore, 487 So. 2d 1080 (Fla. 5th DCA 1986); Sumner v. Sumner, 480 So. 2d 706 (Fla. 5th DCA 1986).
REVERSED and REMANDED.
DAUKSCH and COBB, JJ., concur.
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Citator
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Stock v. Stock, 693 So. 2d 1080 (Fla. 2d DCA 1997)…r the husband’s earning ability and his ability to pay alimony in the future as each child’s emancipation reduces his child support obligation. The husband argues that it is error to order an automatic future increase in alimony. Kinzler v. Kinzler, 497 So. 2d 909 (Fla. 5th DCA 1986). However, the court here did not direct that a specific alimony award commence in the future, but merely reserved jurisdiction to make that determination at a later time. The question whether to reserve jurisdiction to award alim…
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Umstead v. Umstead, 620 So. 2d 1074 (Fla. 2d DCA 1993)…this case, there is no evidentiary basis for the determination of the wife’s need or the husband’s ability to pay alimony at the time the future increases will become effective, and the court erred by ordering such increases. See Kinzler v. Kinzler, 497 So. 2d 909 (Fla. 5th DCA1986); Reid. There is an adequate procedure for modification when changes in the circumstances of the parties do occur. We, accordingly, remand to the trial court with instructions to strike all provisions relating to future automatic…
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McPEAK v. McPEAK, 582 So. 2d 82 (Fla. 5th DCA 1991)…ey’s fees.2 Accordingly the case is affirmed in all particulars except the award of permanent periodic alimony to the wife is reversed. REVERSED. COWART and PETERSON, JJ., and ANTOON, J., II, Associate Judge, concur. . See Kinzler v. Kinzler, 497 So. 2d 909 (Fla. 5th DCA 1986); Campbell v. Campbell, 432 So. 2d 666 (Fla. 5th DCA 1983), rev. denied, 453 So. 2d 1364 (Fla.1984); see also Pirino v. Pirino, 549 [*83] So. 2d 219 (Fla. 5th DCA 1989) (Pirino II); Woodard v. Woodard, 477 So. 2d 631 (Fla. 4th DCA…
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Canakaris v. Canakaris, 382 So. 2d 1197 (Fla. 1980)
- Thad Richard Sizemore, Jr. v. Sizemore, 487 So. 2d 1080 (Fla. 5th DCA 1986)
- Sumner v. Sumner, 480 So. 2d 706 (Fla. 5th DCA 1986)
- Reid v. Demetria Reid, 365 So. 2d 1050 (Fla. 4th DCA 1978)
- Wood v. State, 376 So. 2d 249 (Fla. 5th DCA 1979)