BEVERLY CHAPEL ADAMS, APPELLANT,
v.
REX EUGENE ADAMS, APPELLEE

Fla. 5th DCA | 1987-08-27
No. 86-1899
COBB, J., concurs., DAUKSCH, J., dissents with opinion.
511 So. 2d 743 Florida District Court of Appeal, Fifth District (1987)

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Synopsis

In this marriage dissolution appeal, the former wife challenges the trial court's decision not to award her the husband's interest in their jointly-owned marital home. The appellate court affirms, holding that the trial court did not abuse its discretion in making an equitable division of very limited marital assets.


Holding

The trial court did not abuse its discretion. Divesting the husband of his only substantial asset at age 59 with limited remaining earning years would endanger his economic future and place him in a precarious position. Because reasonable men could disagree on the equitable distribution given the parties' circumstances, the trial court's decision fell within the bounds of discretion.


Headnotes

[1] A trial court does not abuse its discretion by refusing to award a spouse the other spouse's interest in the marital home when doing so would endanger the other spouse's…

[2] A trial court's equitable distribution of limited marital assets will be affirmed if reasonable minds could disagree on the division.

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Key Quotes

“Taking away the husband's only substantial asset at a time when his earning years are limited would clearly endanger his economic future and put him in a precarious economic position.”

Establishes the trial court's reasoning for protecting the husband's interest in the marital home and the basis for finding no abuse of discretion

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Facts & Procedural History

The former husband is 59 years old and works as a security guard at Walt Disney World. The former wife is physically disabled and does not work, recei…

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Opinion of the Court
ORFINGER, Judge.

ORFINGER, Judge.

The former wife appeals from a judgment in this marriage dissolution case, contending only that the trial court abused its discretion in not awarding her the husband’s interest in the jointly-owned marital home. We affirm.

We have not been provided with a transcript of the testimony but only with an approved statement of the evidence. The former husband is 59 years of age and is employed as a security guard at Walt Disney World. The wife is physically disabled and does not work. She receives social security and, with the permanent periodic alimony and child support which the final judgment awarded her, the monthly income of the parties is virtually equal. The wife was also awarded an income tax refund of $1,325 as lump sum alimony, one-half of the $16,000 worth of jointly-owned stock, and was given exclusive use and possession of the marital home until the one minor child attained majority. The marital home is worth $43,000, according to the wife’s financial affidavit, encumbered by a $14,-000 mortgage, and is the only substantial asset owned by the parties. Taking away the husband’s only substantial asset at a time when his earning years are limited would clearly endanger his economic future and put him in a precarious economic position. The trial judge was faced with the difficult problem of making an equitable division of very limited assets, and it would be improper for us to substitute our judgment for his when he was able to observe the parties and their demeanor, and determine issues of credibility and weight of their testimony. The trial court could have determined that divesting the husband of his only substantial asset would shortchange him. See Rico v. Rico, 487 So. 2d 1161 (Fla. 5th DCA 1986); Lynch v. Lynch, 487 So. 2d 234 (Fla. 5th DCA 1983). Because reasonable men could disagree, there was no abuse of discretion under the standard established by Canakaris v. Canakaris, 382 So. 2d 1197 (Fla.1980).

AFFIRMED.

COBB, J., concurs.

DAUKSCH, J., dissents with opinion.

Dissent
DAUKSCH, Judge,

DAUKSCH, Judge,

dissenting.

In my opinion the trial judge abused his discretion in failing to award to the former wife, as lump sum alimony, the husband’s interest in the marital home. Although the income of the parties is approximately equal, the present and future ability of the husband to earn a living is far superior to the wife’s. Hers is nil. For her future security and in recognition of her many years as a wife and mother of seven children, I suggest she not only needs, but deserves that asset.

I would reverse that portion of the judgment which fails to award the lump sum alimony.


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