BARBARA J. KAUFMAN, APPELLANT,
v.
JAMES M. KAUFMAN, APPELLEE
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The Third District Court of Appeal reversed and remanded a trial court's denial of Mrs. Kaufman's petition for periodic alimony modification. The court held that a former wife is not required to deplete her capital assets to maintain her standard of living and remanded for the trial court to award alimony sufficient to meet her demonstrated increased needs.
A former wife is not required to deplete her capital assets in order to maintain a standard of living. The trial court erred in conditioning alimony eligibility on asset depletion and must award periodic alimony sufficient to satisfy the demonstrated increased need.
[1] A party seeking modification of an alimony award must demonstrate a material change in circumstances.
[2] A spouse is not required to deplete capital assets to maintain a standard of living when seeking alimony.
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Join FLexlaw to unlock all legal intelligence“The law is settled that a wife is not required to deplete her capital assets in order to maintain a standard of living.”
Establishes the controlling legal principle that defeats the trial court's reasoning requiring asset depletion as a condition for alimony eligibility.
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Join FLexlaw to unlock all legal intelligenceBarbara Kaufman petitioned to modify the final judgment of dissolution of marriage to award periodic alimony, alleging a material change in circumstan…
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PER CURIAM.
In an earlier appeal of this case we directed that the judgment dissolving the marriage be amended to reserve jurisdiction “to award alimony in the future.” Kaufman v. Kaufman, 491 So. 2d 584 (Fla. 3d DCA 1986). Subsequently Mrs. Kaufman petitioned the court to make an award of periodic alimony by a modification of the final decree. She alleged a material change in circumstances. (It is agreed that the husband has the financial ability to pay any reasonable alimony award).
In paragraph two of the order denying the petition for modification, the court attributed any reduction in Mrs. Kaufman’s liquidity to litigation costs and fees, school tuition, extraordinary medical expenses, and expenditures resulting from inadequate child support (rectified in a separate order). In paragraph four it was concluded:
The Court has considered that the interest rate has dropped since the Amended Final Judgment was entered on February 15, 1985 and that the cost of living has increased during that same period of time. However, the Court finds that there has not been a substantial change in the Petitioner’s needs or circumstances in light of provisions of the Amended Final Judgment for Petitioner has not depleted her capital assets for her own support needs during this time except as set forth in paragraph 2 hereinabove and therefore she has not demonstrated a need for alimony at this time.
(Emphasis added).
The law is settled that a wife is not required to deplete her capital assets in order to maintain a standard of living. Blakistone v. Blakistone, 462 So. 2d 883 (Fla. 2d DCA 1985); De Cenzo v. De Cenzo, 433 So. 2d 1316 (Fla. 3d DCA 1983); Holley v. Holley, 380 So. 2d 1098 (Fla. 2d DCA 1980); Gordon v. Gordon, 204 So. 2d 734 (Fla. 3d DCA 1967).
Accordingly, we remand the cause to the trial court with instructions to make a periodic alimony award sufficient to satisfy the demonstrated increased need. If, in the future, Barbara’s assets should afford her a substantially greater income, this factor may be considered in any later review of alimony, along with any other material changes in the circumstances of the parties. Lutgert v. Lutgert, 362 So. 2d 58, 62 (Fla. 2d DCA), cert. denied, 367 So. 2d 1125 (Fla.1979); In re Marriage of Jones, 357 So. 2d 439 (Fla. 2d DCA 1978).
Reversed and remanded.
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Citator
Cited By
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Brock v. Newman Brock, 690 So. 2d 737 (Fla. 5th DCA 1997)…d DCA 1983); In re Marriage of Jones, 357 So. 2d 439 (Fla. 2d DCA 1978). Cf. Sinclair v. Sinclair, 594 So. 2d 807 (Fla. 3d DCA 1992) (error to require former wife to deplete capital assets to maintain marital standard of living); Kaufman v. Kaufman, 541 So. 2d 743 (Fla. 3d DCA 1989) (error to require former wife to deplete capital assets for support before seeking modification). . See Selembo v. Selembo, 591 So. 2d 1112 (Fla. 2d DCA 1992); Bedell v. Bedell, 523 So. 2d 166 (Fla. 1st DCA 1988). . See Stewart…
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Kelly v. Kelly, 925 So. 2d 364 (Fla. 5th DCA 2006)…ash v. Cash, 691 So. 2d 6 (Fla. 5th DCA 1997); Oxley v. Oxley, 695 So. 2d 364 (Fla. 4th DCA 1997). And a spouse is not required to deplete her capital assets to maintain the standard of living she enjoyed during the marriage. See Kaufman v. Kaufman, 541 So. 2d 743 (Fla. 3d DCA 1989); Blakistone v. Blakistone, 462 So. 2d 883 (Fla. 2d DCA 1985); In re Marriage of Jones, 357 So. 2d 439 (Fla. 2d DCA 1978). See generally, Cullen; Nisbeth v. Nisbeth, 568 So. 2d 461 (Fla. 3d DCA 1990). As the third district noted in…
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Batson v. Batson, 821 So. 2d 1141 (Fla. 5th DCA 2002)…a spouse should not be required to deplete their capital assets in order to maintain their standard of living. See De Cenzo v. De Cenzo, 433 So. 2d 1316 (Fla. 3d DCA 1983); Wolfson v. Wolfson, 455 So. 2d 577 (Fla. 4th DCA 1984); Kaufman v. Kaufman, 541 So. 2d 743 (Fla. 3d DCA 1989). Was not the pension awarded to the husband a "capital asset”? Other courts have held that support obligations should be considered after distribution has been made and that income earned after a division of marital assets should…
Authorities Cited
- DE Cenzo v. de Cenzo, 433 So. 2d 1316 (Fla. 3d DCA 1983)
- O'Dell v. Carlton B. O'Dell, 204 So. 2d 734 (Fla. 2d DCA 1967)
- In re the Marriage OF Barbara E. Jones, 357 So. 2d 439 (Fla. 2d DCA 1978)
- Lutgert v. Lutgert, 362 So. 2d 58 (Fla. 2d DCA 1978)
- Holley v. Holley, 380 So. 2d 1098 (Fla. 2d DCA 1980)
- Kaufman v. Kaufman, 491 So. 2d 584 (Fla. 3d DCA 1986)
- Lyons v. State, 462 So. 2d 883 (Fla. 2d DCA 1985)
- Anne B. Blakistone v. Blakistone, 462 So. 2d 883 (Fla. 2d DCA 1985)