ISRAEL POLLACK, APPELLANT,
v.
MADELINE POLLACK, APPELLEE

Fla. 4th DCA | 1987-12-09
Nos. 4-86-2033, 4-86-2341
LINDA L. VITALE, Associate J., concurs., GUNTHER, J., dissents with opinion.
517 So. 2d 707 Florida District Court of Appeal, Fourth District (1987) Caution
Cited by 8 cases

AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.

Synopsis

The Florida District Court of Appeal affirmed a final judgment of dissolution regarding alimony and child support but remanded the case for recalculation of attorney's fees due to the trial court's failure to follow proper methodology. The court upheld the award of lump sum alimony, finding it justified by the age disparity between the spouses and the potential destitution of the wife and child if the husband were to die.


Holding

The court held that the award of permanent periodic alimony and attorney's fees was justified. However, the trial court erred in its methodology for calculating attorney's fees and must reconsider the award. The court also held that the trial court could consider the husband's non-marital assets when assessing alimony obligations and that the lump sum alimony award was a proper exercise of discretion.


Headnotes

[1] A trial court may resort to all assets and income of a financially capable spouse, regardless of their source, when assessing alimony for a needy spouse.

[2] An award of lump sum alimony may be justified to protect a financially dependent spouse from destitution in the event of the obligor spouse's early demise.

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Key Quotes

“Rather, we hold that, in assessing alimony for a needy spouse, the court may resort to all of the assets and income of the pecunious spouse regardless of their source.”

Establishes that non-marital assets can be considered for alimony.

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Facts & Procedural History

The husband appealed a final judgment of dissolution that awarded the wife permanent periodic alimony, lump sum alimony, child support, and attorney's…

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Opinion of the Court
DOWNEY, Judge.

DOWNEY, Judge.

Israel Pollack, the husband/appellant herein, appeals from a final judgment of dissolution in which the trial court awarded the wife permanent periodic alimony, lump sum alimony, child support, and attorney’s fees.

This marriage survived fourteen years and produced one child, ten years of age. At the time of trial the husband was sixty-five years old and the wife forty-two. The wife brought no assets of consequence to the marriage and was primarily a home maker throughout the union. The husband brought substantial assets to the marriage and, although not actively employed during the marriage, he spent his time caring for his investments. The evidence indicated the value of the husband’s estate at trial at about $1,039,000. The judgment appealed from awarded the wife custody of the child, permanent alimony of $2,000 per month, lump sum alimony of $225,000, and attorney’s fees. The trial court erred, contends the husband, in the alimony awards and in fashioning the award of attorney’s fees.

On this record we hold an award of permanent periodic alimony and attorney’s fees was justified. The only quarrel we have is with the methodology employed in determining the amount of attorney’s fees. The trial court failed to follow Florida Patient’s Compensation Fund v. Rowe, 472 So. 2d 1145 (Fla.1985), and thus the cause must be remanded for further consideration.

With regard to the award of lump sum alimony, the husband contends the trial court improperly considered the husband’s non-marital assets in effecting that distribution. If it is his legal position that non-marital assets are not subject to an equitable property distribution, we would agree. However, if his argument is that the court cannot look to the husband’s non-marital assets to meet alimony and other obligations ensuing from the marriage, then we reject it. Rather, we hold that, in assessing alimony for a needy spouse, the court may resort to all of the assets and income of the pecunious spouse regardless of their source. Having done so, the trial court exercised its discretion to award the wife less than one-quarter of the husband’s assets. In reviewing that discretionary disposition, we look to the evidence and, if we find that there is competent substantial evidence in the record to support that particular award, then there is logic and justification for the result and it is unlikely that any reasonable person would adopt a different view. Thus, there is no abuse of discretion. Marcoux v. Marcoux, 464 So. 2d 542, 544 (Fla.1985). One of the tools available to the trial judge in resolving the issues here is lump sum alimony, assuming there is a justification for resort thereto. We find justification therefor in the fact that the husband was sixty-five years old at final judgment, whereas the wife was forty-two, with a minor child. Should the husband suffer an early or sudden demise there would be no further child support, no further permanent alimony, and the wife would be destitute. It is sheer realism, we submit, to consider that scenario as an un-remote possibility, although ostensibly the husband’s health is good. This court, in Hartley v. Hartley, 399 So. 2d 1126, 1128 (Fla. 4th DCA 1981), recognized this point in saying:

The usually unspoken but sometimes very legitimate fear, of course, is that if periodic alimony is ordered and the husband dies shortly thereafter, his former wife may be left destitute.

In reviewing the trial court’s exercise of discretion in this area, we must keep in mind the supreme court’s admonition that we relied upon in Nusbaum v. Nusbaum, 386 So. 2d 1294, 1295 (Fla. 4th DCA 1980):

The Canakaris Court [Canakarias v. Canakarias, 382 So. 2d 1197 (Fla.1980)] pointed out that in making the determination to award lump sum alimony the trial judge is exercising a broad discretion to ensure equity and justice between the parties. Appellate courts were admonished to exercise restraint and caution in reviewing the trial court’s exercise of its discretion and to keep hands off unless that discretion is exercised in an arbitrary, fanciful or unreasonable way.

Accordingly, we affirm the judgment in all respects except as to the amount of attorney’s fees and we reverse that determination and remand the cause for further consideration of attorney’s fees in accordance with the methodology set forth in Rowe v. Florida Patient’s Compensation Fund, supra.

LINDA L. VITALE, Associate J., concurs.

GUNTHER, J., dissents with opinion.

Dissent
GUNTHER, Judge,

GUNTHER, Judge,

dissenting.

I agree with the majority opinion on all issues except I respectfully dissent on the issue of the award of lump sum alimony to the wife from the non-marital assets of the husband. I would reverse the award of lump sum alimony from the husband’s property not associated with the marriage since there was no showing of a special reason or great need of the wife. Ward v. Ward, 476 So. 2d 1292 (Fla. 4th DCA 1985), rev. denied, 488 So. 2d 69 (Fla.1986); Haass v. Haass, 468 So. 2d 1053 (Fla. 4th DCA), rev. denied, 478 So. 2d 53 (Fla.1985); Gardner v. Gardner, 452 So. 2d 981 (Fla. 5th DCA 1984).

The record is void of substantial competent evidence to support a special reason or great need of the wife as justification for an award of lump sum alimony from the husband’s non-marital assets. The majority relies on Hartley v. Hartley, 399 So. 2d 1126 (Fla. 4th DCA 1981) for the proposition that since a healthy, but older husband might die sooner, a special need for lump sum alimony is created in a younger wife. However, the Hartley case does not involve an award of lump sum alimony from non-marital assets. Therefore, I conclude that the philosophy underlying Hartley should not be extended to the instant case.

Accordingly, I would reverse the award of lump sum alimony to the wife from the non-marital assets of the husband. However, upon remand, the trial court could reassess the permanent periodic alimony award if it so desired, since the funds available to the wife would be severely diminished.


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Citator

Cited By

  • Dwyn Daniels Robbie v. Robbie, 591 So. 2d 1006 (Fla. 4th DCA 1991)
    …preme court held that a trial court must set forth specific findings regarding the “lodestar figure,” i.e., number of hours reasonably expended multiplied by a reasonable hourly rate, when it makes an award of attorneys’ fees. In Pollack v. Pollack, 517 So. 2d 707 (Fla. 4th DCA 1987), rev. denied, 528 So. 2d 1183 (Fla.1988), and Hoopes v. Hoopes, 525 So. 2d 1015 (Fla. 4th DCA 1988), we held that the Rowe lodestar requirements applied to dissolution of marriage proceedings and allowances of suit money under se…
  • Belmont v. Belmont, 761 So. 2d 406 (Fla. 2d DCA 2000)
    …roperty, requires the trial court to “set apart to each spouse that spouse’s nonmar-ital assets and liabilities....” Nonmarital assets may not be conveyed, absent agreement, to the non-owning spouse in equitable distribution. See Pollack v. Pollack, 517 So. 2d 707 (Fla. 4th DCA 1987). Although this issue was first raised at oral argument, we are not precluded from addressing it because it is the equivalent of fundamental error. Accordingly, we reverse the award to the wife of the Manaso-ta Key home. The undis…
  • Kelly v. Kelly, 557 So. 2d 625 (Fla. 4th DCA 1990)
    …s does not set forth specific findings as to the hourly rate, number of hours reasonably expended and the appropriateness of the application of reduction or enhancement factors. Lanham v. Lanham, 528 So. 2d 80 (Fla. 2d DCA 1988); Pollack v. Pollack, 517 So. 2d 707 (Fla. 4th DCA 1987). Accordingly, the judgment appealed from is affirmed in all respects except as to the allowance of attorney’s fees and remanded for further proceedings consistent herewith. DOWNEY and WALDEN, JJ., and McNULTY, JOSEPH P., Associ…

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