VICTORIA RUSSELL, APPELLANT,
v.
ROBERT RUSSELL, APPELLEE; ROBERT RUSSELL, APPELLANT, V. VICTORIA RUSSELL, APPELLEE
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In this marital dissolution case, the Florida Fourth District Court of Appeal reversed the trial court's distribution of a $1.4 million marital asset and alimony award to a homemaker wife of a 16-year marriage. The court held that a cash-out provision allowing the husband to pay only $142,000 instead of the awarded $400,000 was inadequate, and that limited rehabilitative alimony should be made permanent given the wife's limited earning capacity.
The court reversed in part, holding that: (1) the cash-out provision allowing payment of only 10% of the marital asset's value was inadequate under the circumstances, and the husband must pay the full $400,000 if paying in cash rather than periodic payments; and (2) the three-year rehabilitative alimony award should be made permanent given the wife's limited prospects for self-sufficiency and the husband's ability to pay.
[1] A cash payout of only 10% of a marital asset's value is inadequate when the asset is awarded to a spouse.
[2] A spouse cannot be awarded an interest in marital property to which they are already entitled by operation of law.
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Join FLexlaw to unlock all legal intelligence“We believe 10% of the total value to be inadequate under the facts of this case”
Establishes that the trial court's cash-out provision allowing only $142,000 payment on a $400,000 award was an abuse of discretion
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Join FLexlaw to unlock all legal intelligenceThis was a 16-year marriage with two children. The wife served as a homemaker and mother throughout the marriage. The primary marital asset was valued…
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LETTS, Judge.
A marital asset worth at least $1,400,000 was distributed, $1,258,000 to the husband and only $142,000 to the wife, if paid in cash. Also, no permanent periodic alimony was awarded. We reverse.
This was a sixteen-year marriage producing two children. The wife’s role was primarily that of the classic housewife and mother. In making the equitable distribution of the principal marital asset valued at $1,400,000, the court pronounced that the wife’s share was $400,000. Unequal though such a distribution would be, we would not deem it an abuse of discretion under the parameters of Canakaris v. Canakaris, 382 So. 2d 1197 (Fla.1980), even though the final judgment provided that the $400,000 be paid out over a twenty-three year period. However, the final judgment further provided the husband could, as an alternative, pay off the distribution in cash for only $142,000, a mere 10% of the total value of the asset. We believe 10% of the total value to be inadequate under the facts of this case, see Berger v. Berger, 464 So. 2d 649 (Fla. 4th DCA 1985), and we reverse the trial judge and remand this cause for the entry of an amended judgment requiring the full $400,-000 to be paid, if the award is paid off in cash rather than by periodic payments.
Included in the final judgment as part of the “award” to the wife was one-half of the proceeds of the sale of the marital residence. We agree that in making an equitable distribution it is important to consider the bottom line of what each spouse ends up with and that the value of the residence constitutes a marital asset. However, we could observe that consideration of one-half of the proceeds of the house sale as an “award,” is illusory under the facts sub judice. The title to the house has been held as a tenancy by the entirety ever since its acquisition in happier matrimonial days. One cannot be “awarded” that which one is already entitled to by operation of law.
As to alimony, the final judgment awarded it for only three years (the final year at the rate of $250 per month). The wife is in her forties and is described by the trial judge in the final judgment: The wife has two years of college education and a course in travel agency. The wife’s work during the marriage consisted of decorating a few of the funeral homes and working part-time at a travel agency. In the event that the wife could obtain a job in the travel agency business, she would be paid only approximately minimum wage.
We see little prospect of her being able to maintain herself in anything like the style she was accustomed to during the marriage and since the husband has the ability to pay, we hold that the $250.00 per month rehabilitative award should be made permanent.
In all other respects, the final judgment is affirmed.
' AFFIRMED IN PART, REVERSED IN PART.
WALDEN, J., concurs.
ANSTEAD, J., dissents in part with opinion.
ANSTEAD, Judge,
dissenting in part.
I would affirm in all respects.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Authorities Cited
- Canakaris v. Canakaris, 382 So. 2d 1197 (Fla. 1980)
- Berger v. Berger, 464 So. 2d 649 (Fla. 4th DCA 1985)