THOMAS R. FULKS, APPELLANT,
v.
DIANA C. FULKS, APPELLEE
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In this dissolution of marriage appeal, the Florida District Court of Appeal affirmed the trial court's property division but reversed its award of permanent periodic alimony to the appellee, finding no factual basis under Florida law to justify permanent support.
The court affirmed the property division as not erroneous. However, the court held that the trial court abused its discretion in awarding permanent periodic alimony because the record presented no basis to justify such an award under Florida law, and reversed that portion of the judgment with instructions to enter an amended final judgment removing the alimony award.
[1] A trial court abuses its discretion by awarding permanent periodic alimony when the record lacks a basis to justify such an award.
[2] The length of a marriage, the age and health of a party, and that party's employment history are factors considered when determining the appropriateness of permanent peri…
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Join FLexlaw to unlock all legal intelligence“The record presented to us is without any basis to justify an award of permanent periodic alimony.”
Establishes that the court found no factual or legal foundation for the permanent alimony award
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Join FLexlaw to unlock all legal intelligenceThomas and Diana Fulks were married for approximately six years with no children. At the time of the final hearing, Diana was 40 years old, in good he…
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SCHOONOVER, Judge.
The appellant, Thomas R. Fulks, challenges those portions of a final judgment of dissolution of marriage which divided the parties’ property and awarded permanent periodic alimony to the appellee, Diana C. Fulks. We find that the trial court did not err in dividing the parties’ property and accordingly affirm that portion of the final judgment. Canakaris v. Canakaris, 382 So. 2d 1197 (Fla.1980). We agree, however, with the appellant’s contention that the court abused its discretion by awarding permanent periodic alimony to the appellee. The appellee did not assert a right to receive rehabilitative alimony.
At the conclusion of the final hearing in this matter, the court awarded the appellant’s interest in the major asset of the parties, the marital home, to the appellee. The court also awarded the appellee permanent periodic alimony in the amount of $100 per week. We recognize that the trial court has the discretion to determine if permanent periodic alimony is appropriate under the circumstances of each case, and absent a clear abuse of discretion, we are not justified in substituting our judgment for the judgment of the trial court. Marlow v. Marlow, 464 So. 2d 717 (Fla. 2d DCA 1985). It is our responsibility, however, to determine if the trial court abused its discretion in making that determination. Lang v. Lang, 459 So. 2d 402 (Fla. 4th DCA 1984). The record presented to us is without any basis to justify an award of permanent periodic alimony. § 61.08, Fla.Stat. (1987); Wismar v. Wismar, 522 So. 2d 552 (Fla. 5th DCA 1988); Evans v. Evans, 443 So. 2d 233 (Fla. 1st DCA 1983). The parties were married for approximately six years and had no children. At the time of the final hearing, the appellee was forty years of age, in good health, and had worked at the same job for approximately fourteen years. The fact that the appellant had more income than the appellee did not justify the award. Wismar; Evans.
We, accordingly, hold that the trial court abused its discretion in awarding permanent periodic alimony to the wife and reverse and remand with instructions to enter an amended final judgment removing this award. We affirm the trial court in all other respects.
Affirmed in part, reversed in part, and remanded.
CAMPBELL, C.J., and PATTERSON, J., concur.
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Citator
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Kremer v. Kremer, 595 So. 2d 214 (Fla. 2d DCA 1992)…but we genuinely respect it. However, we have concluded without doubt that there was an abuse of discretion in the award of any alimony. To decide otherwise would foster indefensible inconsistencies in the law in this area. See e.g., Fulks v. Fulks, 558 So. 2d 205 (Fla. 2d DCA 1990) (upon dissolution of six year marriage husband’s superior earning ability did not justify permanent alimony to 40 year old wife in good health capable of continuing her premarital employment); Campbell v. Campbell, 482 So. 2d 666…
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Walker v. Walker, 818 So. 2d 711 (Fla. 2d DCA 2002)…ropriate is a disparate earning capacity between the spouses. Nelson, 721 So. 2d at 388-89. While the trial court has the discretion to determine whether permanent periodic alimony is appropriate under the circumstances of each case, Fulks v. Fulks, 558 So. 2d 205, 206 (Fla. 2d DCA 1990), rehabilitative alimony is not a substitute for permanent periodic alimony. Campbell v. Campbell, 685 So. 2d 61, 62 (Fla. 1st DCA 1996). Moreover, again depending upon the circumstances of the case, permanent periodic alimony…
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Myron Lee Murray v. Murray, 598 So. 2d 310 (Fla. 2d DCA 1992)…whether permanent periodic alimony is appropriate under the circumstances of each case and that absent a clear abuse of discretion, we are not justified in substituting our judgment for the judgment of the trial court. See Canakaris; Fulks v. Fulks, 558 So. 2d 205 (Fla. 2d DCA 1990). It is our responsibility, however, to determine whether the trial court abused its discretion in making that determination, and in this case we find that it did. The primary elements to be considered when determining permanent p…
Previewing 3 of 9 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Canakaris v. Canakaris, 382 So. 2d 1197 (Fla. 1980)
- Evans v. Evans, 443 So. 2d 233 (Fla. 1st DCA 1983)
- Wismar v. Wismar, 522 So. 2d 552 (Fla. 5th DCA 1988)
- Keys v. State, 522 So. 2d 552 (Fla. 5th DCA 1988)
- Marlow v. Marlow, 464 So. 2d 717 (Fla. 2d DCA 1985)
- Lang v. Lang, 459 So. 2d 402 (Fla. 4th DCA 1984)