MARSHA ILENE HENNING, APPELLANT,
v.
WILLIAM JAMES HENNING, APPELLEE
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In this divorce dissolution case, the appellate court affirmed the trial court's equitable distribution of marital assets but reversed and remanded because the trial court abused its discretion by failing to award the former wife permanent periodic alimony and attorney's fees, given the substantial disparity in the parties' income and earning capacity resulting from their 24-year marriage where she acted as homemaker and he as breadwinner.
The court affirmed the equitable distribution of assets as roughly equal, but reversed and remanded on the issues of alimony and attorney's fees. The trial court abused its discretion by failing to award permanent periodic alimony and attorney's fees because the wife would otherwise be required to draw on capital assets for support and because of the great disparity in the parties' income and earning capacity resulting from the wife's role as homemaker during the 24-year marriage.
[1] A trial court abuses its discretion by failing to grant permanent periodic alimony and attorney's fees and costs when there is a great disparity in income and earning cap…
[2] A spouse may not be required to draw on capital assets to support themselves in a dissolution case.
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Establishes the court's rationale for requiring permanent alimony based on the wife's need and the disparity in earning capacity created by marital roles
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Join FLexlaw to unlock all legal intelligenceMarsha and William Henning were married for 24 years. During the marriage, William worked as a sergeant for the Dade County Public Safety Department e…
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SCHWARTZ, Chief Judge.
In this dissolution case, we find no error in the lower court’s equitable distribution of the parties’ variously titled marital assets, which consisted essentially of granting the wife the family home and the husband virtually everything else and which resulted in a roughly equal division. See Tronconi v. Tronconi, 466 So. 2d 203 (Fla. 1985); Blumberg v. Blumberg, 498 So. 2d 1387 (Fla. 3d DCA 1986); Roffe v. Roffe, 404 So. 2d 1095 (Fla. 3d DCA 1981).
Because, however, the wife would impermissibly otherwise be required to draw on her capital assets to support herself, De Cenzo v. De Cenzo, 433 So. 2d 1316 (Fla. 3d DCA 1983); Gordon v. Gordon, 204 So. 2d 734 (Fla. 3d DCA 1967), and, more important, because of the great disparity in the parties’ income and earning capacity1 which resulted from her acting as a homemaker and mother and her husband as the breadwinner during their 24-year marriage, we conclude that the trial judge abused his discretion, see Canakaris v. Canakaris, 382 So. 2d 1197 (Fla.1980), in failing to grant the wife (a) permanent periodic alimony, Green v. Green, 484 So. 2d 1269 (Fla. 3d DCA 1986); Carroll v. Carroll, 471 So. 2d 1358 (Fla. 3d DCA 1985), pet. for review denied, 486 So. 2d 347 (Fla.1985); Colucci v. Colucci, 392 So. 2d 577 (Fla. 3d DCA 1980), and (b) attorney’s fees and costs,2 Heller v. Kuvin, 490 So. 2d 245 (Fla. 3d DCA 1986); Carroll, 471 So. 2d at 1361-62. The judgment is reversed in these respects only for the trial court to make reasonable awards of permanent alimony and fees and costs.3
Ms. Henning has also moved for attorney’s fees on appeal. We grant the motion and remand the cause to the trial court for the assessment of these fees. Fla.R.App.P. 9.400(b). This will confirm to the bar that, as a result and in the light of Sierra v. Sierra, 505 So. 2d 434 (Fla.1987), the Court will follow this practice in each such instance in the absence of an affirmative stipulation of the parties that we may ourselves fix the amount of appellate fees. Such a stipulation may permit our determination of the issue either on the basis of affidavits or without them.
Affirmed in part; reversed in part and remanded with directions.
. Ms. Henning, who is forty-one, earns $127 a week as a J.C. Penney salesperson; Mr. Hen-ning, at age forty-two, earns approximately $40,-000 a year with concomitant pension rights as a sergeant for the Dade County Public Safety Department.
. The husband complains that the wife's lawyer unnecessarily prolonged the litigation and expended unreasonable amounts of time and energy in representing her. While this argument, if accurate, may of course be considered in determining the amount of a reasonable fee, it does not justify the complete denial of such an award.
. We find no harmful error in the remaining points presented.
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Martinez-Cid v. Recy Martinez-Cid, 559 So. 2d 1177 (Fla. 3d DCA 1990)…failing to require the husband to pay all the wife’s attorney's fees and costs.1 Attorney’s fees should be paid by the party who has a superior financial ability to pay. Canakaris; Kuse v. Kuse, 533 So. 2d 828 (Fla. 3d DCA 1988); Henning v. Henning, 507 So. 2d 164 (Fla. 3d DCA 1987). Although the wife received an equitable distribution of the marital assets,2 she has no immediate earning ability; the husband, however, is employed and has the present ability to pay. For these reasons, we reverse the judgment…
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Nelson v. Nelson, 588 So. 2d 1049 (Fla. 2d DCA 1991)…e distribution. Finally, we think the disparities in the parties’ annual incomes, and the lack of any substantial ready asset or income producing assets being distributed to the wife, entitled her to an award of attorney’s fees. Henning v. Henning, 507 So. 2d 164 (Fla. 3d DCA 1987); O’Steen v. O’Steen, 478 So. 2d 489 (Fla. 1st DCA 1985). On remand the trial court shall receive evidence with respect to the husband’s pension plan and make such awards as are equitable as outlined in this opinion. Further, sinc…
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Cruz v. Maximo L. Cruz, 574 So. 2d 1117 (Fla. 3d DCA 1990)…t outlined, an award of permanent periodic alimony should have been made. We reverse and remand for entry of an appropriate award. See Askegard v. Askegard, 524 So. 2d 736 (Fla. 1st DCA), review denied, 536 So. 2d 243 (Fla.1988); Henning v. Henning, 507 So. 2d 164 (Fla. 3d DCA 1987); see also Canakaris v. Canakaris, 382 So. 2d 1197, 1201-02 (Fla.1980). Fourth, the final judgment contains an award of lump sum alimony payable in installments over the space of two years. This award was evidently intended to con…
Previewing 3 of 8 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)
- Tronconi v. Tronconi, 466 So. 2d 203 (Fla. 1985)
- Colucci v. Colucci, 392 So. 2d 577 (Fla. 3d DCA 1980)
- DE Cenzo v. de Cenzo, 433 So. 2d 1316 (Fla. 3d DCA 1983)
- O'Dell v. Carlton B. O'Dell, 204 So. 2d 734 (Fla. 2d DCA 1967)
- Roffe v. Moises Roffe, 404 So. 2d 1095 (Fla. 3d DCA 1981)
- Carroll v. Carroll, 471 So. 2d 1358 (Fla. 3d DCA 1985)
- Heller v. Kuvin, 490 So. 2d 245 (Fla. 3d DCA 1986)
- Madelon Green v. Green, 484 So. 2d 1269 (Fla. 3d DCA 1986)
- Blumberg v. Blumberg, 498 So. 2d 1387 (Fla. 3d DCA 1986)