KAREN ARLIE HARRISON, APPELLANT/WIFE,
v.
JOSEPH RICHARD HARRISON, APPELLEE/HUSBAND

Fla. 1st DCA | 1989-03-23
No. 88-2543
SMITH, C.J., and ERVIN, J., concur.
540 So. 2d 230 Florida District Court of Appeal, First District (1989) Positive Treatment
Cited by 14 cases

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Holding

The court held that the trial court abused its discretion by failing to award permanent periodic alimony and attorney's fees to the wife, and by making a computational error in the equitable distribution of assets.


Headnotes

[1] A trial court abuses its discretion by failing to award permanent periodic alimony when one spouse's need for alimony is established and the other spouse has a far strong…

[2] A former spouse's need for alimony is determined, in part, by reference to the standard of living enjoyed by the parties during the marriage.

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Facts & Procedural History

The parties were married for 21 years with four children. The husband had significantly higher income and earning potential than the wife, who also su…

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Opinion of the Court
NIMMONS, Judge.

NIMMONS, Judge.

Appellant wife raises several challenges to the trial court’s final judgment of dissolution of marriage. We affirm in part, reverse in part, and remand.

The parties are both 40 years old, and were married for 21 years. The marriage produced four children, three of whom are minors. Appellee husband is a veterinarian who obtained most of his education while the parties were married, and the wife is a high school graduate who attended one year of cosmetology school. The wife worked outside of the home at the beginning of the marriage, but stopped after the birth of the parties’ second child. More recently, she has worked from her home as a Mary Kay cosmetics saleswoman. The husband showed gross income of $1,230.21 per week, while the wife showed gross weekly income (at the time of filing for dissolution) of $250.00. The wife testified at the final hearing that her declining sales production — brought on by the stress of the dissolution proceedings — had caused her income to decline to $103 a week. The trial court recognized that the wife suffers from emotional problems.

At the time of commencement of the dissolution action, the parties lived in a home which was provided by the husband’s mother and upon which neither of the parties had made any payments. The trial court awarded the wife one half of the estimated value of the marital assets as equitable distribution in the form of lump sum alimony. The custody of the minor children was contested, and the trial court provided for shared parental responsibility with the primary physical residence of all three children to be with the husband.

On appeal, the wife challenges the trial court’s failure to award her permanent periodic alimony or attorney’s fees, the trial court’s equitable distribution of the parties’ assets, and the court’s ruling on custody.

The award of custody to the father was not an abuse of discretion and is therefore affirmed. Falk v. Falk, 422 So. 2d 1025 (Fla. 1st DCA 1982); Richardson v. Richardson, 442 So. 2d 1005 (Fla. 3rd DCA 1983).

However it was an abuse of discretion to fail to award permanent alimony. A trial court need not equalize the financial positions of the parties, but it must ensure that neither spouse passes from misfortune to prosperity or from prosperity to misfortune. Wagers v. Wagers, 444 So. 2d 520 (Fla. 1st DCA 1984); Canakaris v. Canakaris, 382 So. 2d 1197 (Fla.1980).

A former spouse’s need for alimony is determined partially by reference to the standard of living enjoyed by the parties during the marriage. § 61.08(2)(a); Canakaris at 1201-1207. In the instant case, the parties had a combined gross income of more than $1,400 per week with no rental or mortgage expense. After the divorce, the wife was left with a gross income of at best $250 and the need to pay for housing.1 The marriage was of long duration and the husband’s present and future earning ability is far stronger than that of the wife.

Section 61.08(2)(c) also directs that the trial court consider the emotional condition of each of the parties. The evidence clearly established — indeed the evidence was virtually uncontradicted — that the wife suf fers from severe emotional problems. On remand, the trial court is to consider to what extent the wife’s emotional condition affects her earning capacity. See Gensemer v. Gensemer, 383 So. 2d 913 (Fla. 2d DCA 1980).

We also find that in view of the substantial disparity in financial circumstances between the parties, the failure to award attorney’s fees and costs to the wife was an abuse of discretion, and direct the court upon remand to grant the wife an award of fees and costs. See Kelly v. Kelly, 491 So. 2d 330 (Fla. 1st DCA 1986); Johns v. Johns, 423 So. 2d 443 (Fla. 4th DCA 1982).2

We modify the equitable distribution in one respect. The record reveals a computational error. At the final hearing, the trial court calculated that the marital home was worth $42,000, that the value of the husband’s veterinary practice was $20,000, that a piece of property owned by the husband was worth $3,000 and that certain liquid assets owned by the husband were worth another $3,000. This totals $68,000, but the trial court arrived at a total of $66,000 and awarded the wife $33,000. The written judgment, on the other hand, omits the $3,000 in assets for a total of $65,000, but still reaches a total of $66,000 and awards the wife $33,000. In order to effectuate the trial court’s intent to equally divide the marital assets, we direct that the judgment be corrected to reflect an award to the wife of $34,000, representing one half of the $68,000 in assets. In all other respects, the distribution is affirmed.

AFFIRMED in part, REVERSED in part, and REMANDED.

SMITH, C.J., and ERVIN, J., concur. . Given the wife’s uncontroverted testimony as to the drastic reduction in her income, we find the record and judgment ambiguous as to the wife’s present earning potential, especially in light of her apparently conceded emotional problems. In any event, there is no competent substantial evidence that, even under the best of circumstances, she has ever earned more than $250 per week, an income level which in this case would entitle her to a permanent periodic alimony award.

. The trial court is authorized to conduct further proceedings as necessary to determine the amount of the wifes awards of alimony and attorney’s fees and costs.


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Citator

Cited By

  • Kirkland v. Kirkland, 568 So. 2d 494 (Fla. 1st DCA 1990)
    …ndard of living will be significantly reduced from that which she enjoyed during the marriage, while the husband’s will remain virtually the same and perhaps even improve once he has satisfied the parties’ short-term debts. See Harrison v. Harrison, 540 So. 2d 230, 231 (Fla. 1st DCA 1989) (trial court “must ensure that neither spouse passes from misfortune [*497] to prosperity or from prosperity to misfortune.”) Because the former husband has not shown that he lacks the resources to pay a periodic alimony awa…
  • Nowell v. Nowell, 634 So. 2d 235 (Fla. 1st DCA 1994)
    …discretion by failing to award the former wife reasonable attorney fees to be paid by the former husband. See, e.g., Nelson v. Nelson, 588 So. 2d 1049 (Fla. 2d DCA 1991); Gillette v. Gillette, 587 So. 2d 634 (Fla. 3d DCA 1991); Harrison v. Harrison, 540 So. 2d 230 (Fla. 1st DCA 1989); Deakyne v. Deakyne, 460 So. 2d 582 (Fla. 5th DCA 1984). See also Canakaris v. Canakaris, 382 So. 2d 1197, 1205 (Fla.1980). The trial court’s findings, that the amended final judgment of dissolution awarded “merely temporary ali…
  • Klinger v. Klinger, 570 So. 2d 1042 (Fla. 3d DCA 1990)
    …itative alimony. The former husband’s better ability to pay also requires reversal of that part of the final judgment denying attorney's fees to the former wife. Martinez-Cid v. Martinez-Cid, 559 So. 2d 1177 (Fla. 3d DCA 1990); Harrison v. Harrison, 540 So. 2d 230 (Fla. 1st DCA 1989); § 61.16, Fla.Stat. (1989). We reverse the attorney’s fees, lump-sum alimony, and rehabilitative alimony provisions of the final judgment and remand the case with directions to divide the proceeds of the sale of the home, and t…

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