WILLIE C. COBB, APPELLANT,
v.
EDYTHE COBB, APPELLEE
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A Florida appellate court reversed a divorce judgment that awarded the marital home to the wife as lump sum alimony, denied the husband's pension without evidentiary support, and imposed unequal child support obligations. The court held that the trial court's awards were arbitrary due to insufficient evidence regarding asset valuations and the child's actual needs.
The lump sum alimony award was reversed because it stripped the husband of his only substantial asset and was based on unsubstantiated assertions about his pension value with no competent evidence. The child support award was reversed because no evidence established the child's needs and it placed the entire burden on the husband despite both parties' equal ability to support the child. The attorney's fees award was reversed because parties of equal financial status should bear their own costs.
[1] A lump sum alimony award that strips a party of their only substantial asset is improper without competent evidence of the value of other assets, such as a pension.
[2] A child support award is improper without evidence establishing the needs of the minor child and must not place the entire burden of support on one parent when both are e…
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Join FLexlaw to unlock all legal intelligence“The lump sum alimony award cannot stand because it strips the former husband of his only substantial asset.”
Establishes the fundamental error that the alimony award divested the husband of all marital assets without proper evidentiary support.
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Join FLexlaw to unlock all legal intelligenceWillie and Edythe Cobb divorced. Both parties were employed with roughly equal incomes. The parties' only substantial marital asset was the marital ho…
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PER CURIAM.
This is an appeal by the former husband Willie C. Cobb from a final judgment of marriage dissolution which (a) awards the former husband’s one-half interest in the marital home to the former wife as lump sum alimony, (b) awards the former wife custody of the parties’ minor child and $115 per week in child support, and (c) awards attorney’s fees to the former wife. Both parties are employed and earn roughly the same income; the parties’ only substantial marital asset is the marital home. We reverse and remand for further proceedings based on the following briefly stated legal analysis.
First, the lump sum alimony award cannot stand because it strips the former husband of his only substantial asset. The trial court’s reliance on the former husband’s pension cannot justify this result because no competent evidence was adduced below as to the value of such pension. The trial court merely accepted the unsubstantiated assertions of the former wife’s counsel as to the pension’s value; clearly, this was an insufficient evidentiary showing. This being so, the lump sum alimony award was arbitrary and must be reversed. Satanonchai v. Satanonchai, 522 So. 2d 1030, 1031 (Fla. 3d DCA 1988); Harris v. Harris, 498 So. 2d 1046 (Fla. 3d DCA 1986); Bullard v. Bullard, 413 So. 2d 1238, 1239 (Fla. 3d DCA 1982); Pike v. Pike, 332 So. 2d 147, 148 (Fla. 3d DCA 1976).
Second, the child support award cannot stand because (a) no evidence was adduced below to establish the needs of the parties’ minor child, and (b) the award places the entire burden of child support on the former husband, rather than on both the parties who are equally able to support the child. See DeArmas v. DeArmas, 471 So. 2d 185 (Fla. 3d DCA 1985); Smith v. Smith, 500 So. 2d 174, 175 (Fla. 1st DCA 1986); McLendon v. McLendon, 483 So. 2d 498, 499 (Fla. 1st DCA 1986); Doane v. Doane, 279 So. 2d 46 (Fla. 4th DCA 1973).
Third, the former wife confesses error as to the award of attorney’s fees. This confession of error is well taken because it is plain that both parties are of equal financial status and should bear their own attorney’s fees and costs. Seitz v. Seitz, 471 So. 2d 612, 615 (Fla. 3d DCA 1985); Arsht v. Arsht, 467 So. 2d 421 (Fla. 3d DCA 1985); Poppe v. Poppe, 412 So. 2d 38 (Fla. 3d DCA 1982).
Fourth, we see no abuse of discretion in the balance of the trial court’s rulings in the final judgment but nonetheless reverse the subject judgment in its entirety to allow the trial court to reevaluate the entire case upon remand and arrive at a fair and just result. In so doing, the trial court is free, in its discretion, to take additional testimony on (a) the value of the parties’ respective pensions, if any, (b) the actual financial needs of the minor child, and (c) any other matter deemed appropriate under the circumstances. See Elenewski v. Elenewski, 528 So. 2d 1354, 1355 (Fla. 3d DCA 1988); Meloan v. Coverdale, 525 So. 2d 935, 937-38 (Fla. 3d DCA), rev. denied, 536 So. 2d 243 (Fla.1988); McCray v. McCray, 493 So. 2d 1117, 1118 (Fla. 1st DCA 1986).
REVERSED AND REMANDED.
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Cited By
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Polley v. Polley, 588 So. 2d 638 (Fla. 3d DCA 1991)…the husband lacks the ability to obtain employment commensurate with his proven ability to formulate and market a product or to operate a corporation. Where both parties are financially able to fulfill their child-support obligations, Cobb v. Cobb, 538 So. 2d 1370 (Fla. 3d DCA 1989), one parent’s voluntary underemployment does not eradicate that parent’s child-support obligation. The trial court should have determined “the employment potential and probable earnings level of the parent ... based upon his ... r…
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Marshall v. Savilla K. Marshall, 596 So. 2d 675 (Fla. 2d DCA 1991)…ent evidence adduced as to the value of the pension, nor did the trial court make any finding in that regard. The wife merely testified that she “believe[d] the value of his pension is anywhere from three to five thousand dollars.” See Cobb v. Cobb, 538 So. 2d 1370 (Fla. 3d DCA 1989). Second, the amount of the child support award should be reversed and reevaluated. The wife appears to be voluntarily underemployed, and, in arriving at the amount of the child support award, the trial court is not shown to have…
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Coots v. Coots, 976 So. 2d 648 (Fla. 4th DCA 2008)…e financial situations of the parties, we hold that the trial court abused its discretion in ordering former husband to pay one-half of former wife’s attorney’s fees. See Ondrejack v. Ondrejack, 839 So. 2d 867, 872 (Fla. 4th DCA 2003); Cobb v. Cobb, 538 So. 2d 1370, 1371 (Fla. 3d DCA 1989). We remand for the trial court to enter an amended final judgment consistent with this opinion. Affirmed in part, Reversed in part, and Remanded. POLEN and MAY, JJ., concur.…
Authorities Cited (17 total)
- Seitz v. Seitz, 471 So. 2d 612 (Fla. 3d DCA 1985)
- Meloan v. Coverdale, 525 So. 2d 935 (Fla. 3d DCA 1988)
- Laraine Rose Doane v. Doane, 279 So. 2d 46 (Fla. 4th DCA 1973)
- Poppe v. Poppe, 412 So. 2d 38 (Fla. 3d DCA 1982)
- Jones v. State, 412 So. 2d 38 (Fla. 3d DCA 1982)
- Bullard v. Altha Elaine Bullard, 413 So. 2d 1238 (Fla. 3d DCA 1982)
- Arsht v. Arsht, 467 So. 2d 421 (Fla. 3d DCA 1985)
- McCRAY v. McCRAY, 493 So. 2d 1117 (Fla. 1st DCA 1986)
- Editorial Cernuda, Inc. v. Editorial Am., S.A., 522 So. 2d 1030 (Fla. 3d DCA 1988)
- Blue Satanonchai v. Amparo Satanonchai, 522 So. 2d 1030 (Fla. 3d DCA 1988)