WILLIAM R. KLINGER, APPELLANT,
v.
MARILYN B. KLINGER, APPELLEE
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In a dissolution of marriage appeal, the court reversed the trial court's award of the marital home to the former wife as lump-sum alimony, finding this constituted an abuse of discretion. The court also reversed the rehabilitative alimony award and denial of attorney's fees, remanding for permanent periodic alimony and attorney's fees awards.
The award of the marital home as lump-sum alimony was an abuse of discretion because the wife did not request such relief, the home was the parties' sole substantial asset making such an award inequitable, and the home was owned by the husband before the marriage. The trial court erred in awarding only 18 months of rehabilitative alimony to a 59-year-old woman with no realistic prospect of self-support. Attorney's fees should have been awarded based on the former husband's superior ability to pay.
[1] A court may not grant relief that was not requested in the pleadings.
[2] Awarding the marital home as lump-sum alimony is inequitable when it is the parties' only substantial asset, aside from a meager pension.
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Establishes that the trial court erred in awarding the home to Mrs. Klinger when she only requested partition and division of proceeds
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Join FLexlaw to unlock all legal intelligenceMr. and Mrs. Klinger were dissolving their marriage. The marital estate consisted primarily of a $250,000 home encumbered by a $45,000 mortgage and Mr…
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PER CURIAM.
In this appeal from a final judgment of dissolution of marriage, the former husband contends that the award of the marital home to the former wife,' as lump-sum alimony, was an abuse of discretion. The former wife cross-appeals the award of rehabilitative alimony and the denial of attorney’s fees.
We agree with Mr. Klinger that the award of the marital house to the wife, under the circumstances of this case, was an abuse of discretion.
First, Mrs. Klinger never requested such relief. Her counter-petition for dissolution sought only to have the home partitioned and the proceeds divided. Consistent with the pleadings, she testified at trial that she was asking for a one-half interest in the home. See Easton v. Appier, 548 So. 2d 691, 693 n. 1 (Fla. 3d DCA 1989) (improper to grant relief not sought).
Second, aside from the former husband’s meager pension plan, the $250,-000 home, encumbered by a $45,000 mortgage, was the parties’ only substantial asset. An award of the marital home to one of the parties as alimony, where the home is the sole asset, is inequitable. Satanonchai v. Satanonchai, 522 So. 2d 1030 (Fla. 3d DCA 1988); Suarez v. Suarez, 514 So. 2d 428 (Fla. 3d DCA 1987), rev. denied, 525 So. 2d 881 (Fla. 1988); Iribar v. Iribar, 510 So. 2d 1023 (Fla. 3d DCA 1987).
Finally, other considerations operate against granting the home to the wife. The home was owned by Mr. Klinger before the marriage. Further, Mrs. Klinger sold a home she owned prior to the marriage, retained the proceeds, and used them for purposes unrelated to the marriage.
As to Mrs. Klinger’s cross-appeal, we agree that eighteen months of rehabilitative alimony was unreasonable in view of the fact that the fifty-nine-year-old former wife, who is employed part-time as a cellist, has earned only $7,000 in salary in her best year. There is no evidence that following the eighteen-month rehabilitative period, the former wife will have any skills or training that will make her self-supporting. Askegard v. Askegard, 524 So. 2d 736 (Fla. 1st DCA 1988). In light of the reversal of the lump-sum alimony award, and the lack of evidence demonstrating a capacity for self-support, the court should award permanent periodic alimony rather than rehabilitative 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 to award Mrs. Klinger permanent periodic alimony and attorney’s fees.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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LEE v. LEE, 751 So. 2d 741 (Fla. 1st DCA 2000)…ny to Mrs. Lee, we likewise affirm. Mr. Lee cites case law which holds that a trial court abuses its discretion by awarding a marital home as lump sum alimony to one party when the home is the parties’ only significant asset. See Klinger v. Klinger, 570 So. 2d 1042 (Fla. 3d DCA 1990); Savage v. Savage, 556 So. 2d 1213 (Fla. 2d DCA 1990); Safferstone v. Safferstone, 501 So. 2d 165 (Fla. 3d DCA 1987). Mr. Lee fails to acknowledge, however, that the parties had other marital assets in the form of Mr. Lee’s retire…
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Jessee v. Jessee, 839 So. 2d 842 (Fla. 3d DCA 2003)…, a distribution of marital property that creates such an inequitable impact constitutes an abuse of discretion. See, e.g., Porzio v. Porzio, 760 So. 2d 1075 (Fla. 5th DCA 2000); Bible v. Bible, 597 So. 2d 359 (Fla. 3d DCA 1992); Klinger v. Klinger, 570 So. 2d 1042 (Fla. 3d DCA 1990); Savage v. Savage, 556 So. 2d 1213 (Fla. 2d DCA 1990); and Satanonchai v. Satanonchai, 522 So. 2d 1030 (Fla. 3d DCA 1988). The sole justification given for the award of the lump sum alimony was “the Husband’s intentional attempt t…
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Nestor F. Manrique v. Manrique, 786 So. 2d 1270 (Fla. 4th DCA 2001)…onomic status to a state of relative impoverishment.” Satanonchai v. Satanonchai 522 So. 2d 1030, 1031 (Fla. 3d DCA 1988). The husband did not own the home prior to the marriage and the wife requested the relief she received. Cf. Klinger v. Klinger, 570 So. 2d 1042 (Fla. 3d DCA 1990) (reversing award of home as lump sum alimony where wife did not request such relief, husband owned home prior to marriage, $205,000 equity in home was sole asset of marriage aside from “meager” pension plan, and wife had sold her…
Authorities Cited
- Iribar v. Iribar, 510 So. 2d 1023 (Fla. 3d DCA 1987)
- Martinez-Cid v. Recy Martinez-Cid, 559 So. 2d 1177 (Fla. 3d DCA 1990)
- Askegard v. Askegard, 524 So. 2d 736 (Fla. 1st DCA 1988)
- Easton v. Appler, 548 So. 2d 691 (Fla. 3d DCA 1989)
- Harrison v. Harrison, 540 So. 2d 230 (Fla. 1st DCA 1989)
- 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)
- Harris v. State, 514 So. 2d 428 (Fla. 3d DCA 1987)