PATTY C. AYCOCK, APPELLANT/CROSS APPELLEE,
v.
RICHARD H. AYCOCK, APPELLEE/CROSS APPELLANT

Fla. 4th DCA | 1986-12-10
No. 4-86-0067
HERSEY, C.J., and DOWNEY and GLICKSTEIN, JJ., concur.
498 So. 2d 999 Florida District Court of Appeal, Fourth District (1986) Positive Treatment
Cited by 4 cases

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Synopsis

In this marital dissolution appeal, the Fourth District Court of Appeal affirmed parts of the trial court's judgment dividing assets and custody between spouses after a thirteen-year marriage, but remanded to amend provisions regarding the wife's alimony award, the husband's life insurance beneficiary designation, and home maintenance responsibilities to better protect the children's interests and leave open the possibility of future alimony modifications.


Holding

The court affirmed the trial court's general approach but remanded for amendments: (1) the wife's exclusive possession of the home should extend until all children reach eighteen (or earlier upon remarriage or permanent residence of an unrelated adult contributing to household support), (2) the husband's $100,000 life insurance policy should be designated for the children's benefit, (3) the husband must pay all encumbrances and reasonable home repairs exceeding $300, and (4) the wife should receive $1.00 as token periodic alimony with retained jurisdiction for future modifications based on the husband's actual financial ability.


Headnotes

[1] A trial court may amend a final judgment of dissolution to terminate a spouse's exclusive possession of the marital home upon remarriage or the presence of an adult male…

[2] A trial court may direct that children be beneficiaries of a life insurance policy as part of a dissolution judgment.

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Key Quotes

“he has successfully engaged in gambling during the marriage and he never explained to the satisfaction of the trial court all of the sources of the $200,000 expended by the couple over a seven year period”

Establishes the basis for the court's concern about the husband's undisclosed assets and justifies retained jurisdiction for future alimony modifications

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Facts & Procedural History

The marriage lasted thirteen years, during which the wife worked as a bartender for approximately half the period. The husband has interests in multip…

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Opinion of the Court
PER CURIAM.

PER CURIAM.

This is an appeal by the wife and a cross appeal by the husband. We conclude that each is entitled to some relief, in part; and while we affirm much of the final judgment, we also remand with direction to amend the final judgment of dissolution in some respects.

The marriage terminated after thirteen years during about half of which the wife worked as a bartender. The husband has an interest in more than one small business and, having no confidence in banks, kept all of his money hidden in different places at home, in his place of business or in his car. He has successfully engaged in gambling during the marriage and he never explained to the satisfaction of the trial court all of the sources of the $200,000 expended by the couple over a seven year period.

The wife’s two teenage children had been adopted by the husband and the parties had another child, now five. They are the primary beneficiaries of the final judgment, and will continue to be so by the amendments we require. We say that because (a) the wife has exclusive possession of the home until all of the children are eighteen. As the judgment is to be amended upon remand, this exclusive possession would also terminate upon the wife’s remarriage or upon the home also becoming the permanent residence of an adult male under such circumstances as (1) to affect adversely the welfare of the children or (2) to substantially and materially take advantage of the benefits of the husband and father’s payments, without contribution which said individual is capable of making or (3) to substantially and materially contribute to the support of the wife. Dahlhofer v. Dahlhofer, 495 So. 2d 858 (Fla. 4th DCA 1986); (b) the children — by the amendment we direct — shall be the beneficiaries of the husband’s $100,000 life insurance policy and (c) the husband shall make all payments on any encumbrance upon the marital home, as well as taxes and insurance, and all reasonable expenses for repair in excess of $300, the emphasized word to be added on remand, so long as the wife has exclusive possession. There was no error in not providing for the husband to receive any credit for any sum paid by him in connection with the marital home upon its ultimate sale.

The wife did not fare as well as the children, but she is in good health and able to work. The husband had given her a 1985 Lincoln automobile when they separated. Worth about $23,000, it was not identified as lump sum alimony or anything else in the final judgment. It was just awarded to her. Her only award of alimony was that of the husband’s interest in the marital furniture as lump sum alimony. That interest was worth $25,000, its total appraised value being $50,000. Given the unexplained sources of the husband’s funds, we direct the trial court, on remand, to award the wife as additional alimony the sum of $1.00, as a token of periodic alimony, and to retain jurisdiction to consider additional periodic alimony in the future, permanent or rehabilitative, should it subsequently be determined that the financial ability of the husband is different than as represented by him to the trial court, or should the wife’s future need for either be established. We wish the courthouse door to be open to her for relief rather than to close it permanently now — given the unexplained aspects of this case — with resulting injustice in the future against which she might be without resources. There was no error in awarding her $5,000 for her attorney’s fees.

HERSEY, C.J., and DOWNEY and GLICKSTEIN, JJ., concur.


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Citator

Cited By

  • Mummaw v. Mummaw, 532 So. 2d 737 (Fla. 1st DCA 1988)
    …urts,1 I concur with the court’s opinion. [*739] But on remand, I would expressly permit the trial court, should it elect to do so, to amend the final judgment by including a provision of the kind approved by the Fourth District in Aycock v. Aycock, 498 So. 2d 999 (Fla. 4th DCA 1986): [Exclusive possession [will] also terminate upon the wife’s remarriage or upon the home also becoming the permanent residence of an adult male under such circumstances as (1) to affect adversely the welfare of the children or…
  • Walker v. Erpenbach, 553 So. 2d 738 (Fla. 5th DCA 1989)
    …ction 741.211, Florida Statutes (1987) provides that no common law marriage entered into after January 1, 1968, shall be valid. . The trial court could have imposed other conditions relating to the husband’s life-style. See, e.g., Aycock v. Aycock, 498 So. 2d 999 (Fla. 4th DCA 1986).…

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