MARK J. SAFFERSTONE, APPELLANT,
v.
LINDA SAFFERSTONE, APPELLEE

Fla. 3d DCA | 1987-01-27
No. 86-854
Before HUBBART, NESBITT and JORGENSON, JJ.
501 So. 2d 165 Florida District Court of Appeal, Third District (1987) Positive Treatment
Cited by 6 cases

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Synopsis

In this marriage dissolution appeal, the Florida District Court of Appeal, Third District, affirmed the trial court's awards of rehabilitation alimony and attorney's fees to the former wife, but reversed the lump sum alimony award of the marital home and the sole parental responsibility award, remanding for reconsideration of the property division and custody arrangements.


Holding

The court affirmed the rehabilitation alimony and attorney's fees awards as within the trial court's discretion, but reversed the lump sum alimony award of the marital home and the sole parental responsibility award as abuses of discretion. On remand, the trial court may award exclusive possession of the marital home to Linda during the minority of the children and may designate her as primary residential custodian, but must award joint parental responsibility absent a finding of detriment to the children.


Headnotes

[1] An award of rehabilitation alimony and attorney's fees may be affirmed even if it represents the outer limits of discretion, given the payor's limited financial circumsta…

[2] Awarding a party's entire interest in the marital home as lump sum alimony can constitute an abuse of discretion when considering the payor's limited financial circumstan…

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Key Quotes

“we conclude that it was an abuse of discretion for the trial court to award Mr. Safferstone's one-half interest in the marital home to Linda Safferstone as lump sum alimony”

Establishes the primary holding that divesting the appellant of his marital property interest exceeded the trial court's discretion.

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Facts & Procedural History

Mark and Linda Safferstone dissolved their marriage. The trial court awarded Linda rehabilitation alimony of $150 per week for eight years, attorney's…

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Opinion of the Court
PER CURIAM.

PER CURIAM.

Mark J. Safferstone appeals a final judgment of marriage dissolution and raises four points on appeal. As to two of these points, we conclude that no abuse of discretion is shown in the trial court awards of (a) rehabilitation alimony of $150.00 a week for eight years, and (b) attorney’s fees — although we think these awards represent the outer limits of the trial court’s discretion in this case, given the limited financial circumstances of Mr. Safferstone and the $600 a month total child support award which he must pay under the final judgment for the parties’ three minor children. See Canakaris v. Canakaris, 382 So. 2d 1197, 1205 (Fla.1980); Wilds v. Wilds, 399 So. 2d 1038 (Fla. 3d DCA 1981); Dominik v. Dominik, 390 So. 2d 81, 83 (Fla. 3d DCA 1980).

The remaining two points on appeal, however, have merit. Given (a) the generous nature of the awards which Mr. Saffer-stone must pay under the final judgment, (b) the otherwise limited financial circumstances of Mr. Safferstone, (c) the potential earning capacity of Linda Safferstone, the former wife, after eight years of rehabilitative alimony, and (d) the fact that the marital home is the only real asset of the parties, we conclude that it was an abuse of discretion for the trial court to award Mr. Safferstone’s one-half interest in the marital home to Linda Safferstone as lump sum alimony. The trial court may, however, upon remand award exclusive possession of the marital home to Linda Safferstone for the minority of the parties’ three children. See Gorman v. Gorman, 400 So. 2d 75, 79 (Fla. 5th DCA 1981); Saldana v. Saldana, 372 So. 2d 528, 529-30 (Fla. 4th DCA 1979); Simpson v. Simpson, 372 So. 2d 526, 527 (Fla. 4th DCA 1979).

Beyond that, we can find no justifiable basis in this record for denying shared parental responsibility for the parties’ three minor children as there was no showing made below that such shared responsibility would be detrimental to the children. § 61.13(2)(b)(2), Fla.Stat. (1985). The trial court may, however, upon remand make Linda Safferstone the primary residential custodian. See Rhines v. Rhines, 483 So. 2d 4, 6 (Fla. 2d DCA 1985), review denied and remanded, 488 So. 2d 68 (Fla. 2d DCA 1986); Frey v. Wagner, 433 So. 2d 60, 61 (Fla. 3d DCA 1983); Nichols v. Nichols, 432 So. 2d 648, 648-49 (Fla. 1st DCA 1983).

Consistent with these views, we therefore (1) affirm the final judgment under review as to (a) the award of rehabilitative alimony and (b) attorney’s fees; (2) reverse the final judgment under review as to (a) the lump sum alimony award, and (b) the sole parental responsibility award as to the three minor children; and (3) remand the cause to the trial court with directions to (a) award joint parental responsibility for the parties’ three minor children, and (b) enter whatever order may seem just under the circumstances with respect to the marital home without divesting Mr. Safferstone of his one-half interest therein.

Affirmed in part; reversed in part and remanded.

HUBBART and JORGENSON, JJ., concur.

Dissent
NESBITT, Judge

NESBITT, Judge

(dissenting):

I respectfully dissent from the majority’s decision to reverse the lump sum alimony award of the marital home to Mrs. Saffer-stone. In all other respects I concur.

The trial court is vested with broad discretion to distribute the family assets and make appropriate awards in a dissolution of marriage proceeding. Canakaris v. Canakaris, 382 So. 2d 1197 (Fla.1980). Unless it can be said that “no reasonable man would take the view adopted by the trial court,” the reviewing court must affirm the judgment. Canakaris, 382 So. 2d at 1202.

In light of Mr. Safferstone’s present employment 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 alimony should be based on husband’s ability to pay and wife’s needs in light of the standard of living during marriage); Kuntz v. Kuntz, 370 So. 2d 1216 (Fla. 3d DCA 1979) (trial court may impute income to a spouse for failure to exert oneself to meet family obligations).

Given the trial court’s broad discretion, I do not believe that the trial court abused that discretion in awarding the marital home to Mrs. Safferstone as lump sum alimony, especially since the evidence demonstrates that she contributed substantially to the marriage for a period of twelve years and to Mr. Safferstone’s attainment of a Ph.D., gave up her career to raise the parties’ children, and that Mr. Safferstone’s level of education would enable him to achieve a much higher level of income. See Canakaris; Sokol v. Sokol, 441 So. 2d 682 (Fla. 2d DCA 1983); see also Stelk v. Stelk, 442 So. 2d 351 (Fla. 1st DCA 1983).

Accordingly, I would affirm the judgment under review in all respects, except for the denial of shared parental responsibility for the reasons expressed by the majority.


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Citator

Cited By

  • LEE v. LEE, 751 So. 2d 741 (Fla. 1st DCA 2000)
    …rding a marital home as lump sum alimony to one party when the home is the parties’ only significant asset. See Klinger v. Klinger, 570 So. 2d 1042 (Fla. 3d DCA 1990); Savage v. Savage, 556 So. 2d 1213 (Fla. 2d DCA 1990); Safferstone v. Safferstone, 501 So. 2d 165 (Fla. 3d DCA 1987). Mr. Lee fails to acknowledge, however, that the parties had other marital assets in the form of Mr. Lee’s retirement pension, valued at $16,000, and his 401K, valued at $6,000, for a total of $22,000, both of which the judge awar…
  • Horacio A. Rodriguez v. Rodriguez, 958 So. 2d 436 (Fla. 3d DCA 2007)
    …ny.) Compare Rosario v. Rosario, 945 So. 2d 629 (Fla. 4th DCA 2006)(reversing award of marital home), Perez v. Perez, 882 So. 2d 537 (Fla. 3d DCA 2004)(same), Jessee v. Jessee, 839 So. 2d 842 (Fla. 3d DCA 2003)(same), and Safferstone v. Safferstone, 501 So. 2d 165 (Fla. 3d DCA 1987)(same), with Bressler v. Bressler, 914 So. 2d 1042 (Fla. 4th DCA 2005)(upholding award of marital home), Russell v. Russell, 890 So. 2d 1148 (Fla. 4th DCA 2004)(same), Manrique v. Manrique, 786 So. 2d 1270 (Fla. 4th DCA 2001)(same)…
  • Wellman v. Wellman, 504 So. 2d 531 (Fla. 3d DCA 1987)
    …re much greater than the wife’s; and the husband had the financial ability to pay such award without endangering his economic status and the wife had a need therefor as the resident parent of the parties’ minor child. See Safferstone v. Safferstone, 501 So. 2d 165 (Fla. 3d DCA 1987) (Nesbitt, J., dissenting) (opining that lump sum award of marital home to wife instead of permanent periodic alimony, and in addition to rehabilitative alimony, was appropriate in view of parties’ disparate incomes and earning abi…

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