PATRICIA D. LOVELADY, APPELLANT,
v.
GALE L. LOVELADY, APPELLEE
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A former wife appealed a final judgment of dissolution of marriage, challenging the alimony award, primary residence designation for minor children, and exclusion of the husband's retirement plan from equitable distribution. The court affirmed the alimony award but reversed and remanded on the issues of primary residence and retirement plan valuation.
The court affirmed the alimony award as within the trial court's discretion given the parties' meager incomes. The court reversed the primary residence determination because the trial court failed to make findings regarding the best interests of the children as required by statute. The court reversed the exclusion of the retirement plan and remanded for consideration of the pension plan as a marital asset.
[1] A trial court does not abuse its discretion in awarding alimony when the incomes of both parties are similarly meager.
[2] A trial court must make findings as to how a child's primary residence arrangement serves the child's best interests.
Previewing 2 of 4 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“The trial court ordered the parents to share parental responsibility for the children, as is mandated by section 61.-13(2)(b)2, Florida Statutes (1989), "unless the court finds that shared parental responsibility would be detrimental to the ehild[ren]."”
Establishes the statutory requirement that shared parental responsibility must be ordered unless the court makes a finding that it would be detrimental to the child.
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Join FLexlaw to unlock all legal intelligencePatricia D. Lovelady and Gale L. Lovelady were dissolving their marriage. Both parties had relatively meager incomes. The trial court awarded the form…
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FRANK, Acting Chief Judge.
The former wife has appealed from the Final Judgment of Dissolution of Marriage, contending that the trial court erred in awarding her only $700.00 per month in alimony, in decreeing that the husband’s home be the primary residence of the minor children, and in failing to consider the husband’s retirement plan as a marital asset subject to equitable distribution. We affirm in part and reverse in part.
We affirm the alimony award. Although the amount is admittedly insubstantial, the incomes of the parties are unfortunately similarly meager. We do not discern an abuse of the trial court’s discretion in the alimony award under the circumstances of this case.
The trial court did err, however, in placing the children in the primary residential care of the husband without making any findings as to how that arrangement would serve the best interests of the children. The trial court ordered the parents to share parental responsibility for the children, as is mandated by section 61.-13(2)(b)2, Florida Statutes (1989), “unless the court finds that shared parental repon-sibility would be detrimental to the ehild[ren].” The court is empowered in section 61.13(2)(b)2a to divide the responsibilities between the parents, including primary residence. The determination of primary residence is to be based upon consideration of the best interests of the child, and section 61.13(3) requires the trial court to evaluate “all factors affecting the welfare and interests of the child.” For guidance, the statute includes a number of factors that may be considered.
The problem with the final judgment is that it contains no reference to the trial court’s findings in regard to primary residence. In fact, the judgment does not contain even a bare conclusion that the best interests of the children would be served by the living arrangements ordered. We are led to the conclusion, therefore, that the trial court may have overlooked the necessity to evaluate the relevant factors, and we must remand for the trial court to make the requisite findings.
Finally, the trial court erred in failing to consider the husband’s pension plan as a marital asset to be factored into the equitable distribution. See Diffenderfer v. Diffenderfer, 491 So. 2d 265 (Fla.1986). On remand, the trial court shall conduct an evidentiary hearing concerning the retirement plan assets.
Affirmed in part, reversed in part, and remanded.
THREADGILL and PATTERSON, JJ., concur.
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Murphy v. Murphy, 621 So. 2d 455 (Fla. 4th DCA 1993)…So. 2d 113 (Fla.1988) (privacy rights of children in dissolution of marriage proceeding do not automatically justify closure of court files; party seeking closure has burden of establishing necessity therefor). We distinguish Lovelady v. Lovelady, 576 So. 2d 946 (Fla. 2d DCA 1991). In that ease Judge Frank explained the reversal of the custody decision as follows: The problem with the final judgment is that it contains no reference to the trial court’s findings in regard to primary residence. In fact, the…
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Nelson v. Nelson, 588 So. 2d 1049 (Fla. 2d DCA 1991)…Diffenderfer, 491 So. 2d 265 (Fla.1986). There the court held that where pension benefits are vested they are to be considered a marital asset subject to equitable distribution or as a source of payment of permanent alimony. In Lovelady v. Lovelady, 576 So. 2d 946 (Fla. 2d DCA 1991), and Deloach v. Deloach, 552 So. 2d 324 (Fla. 1st DCA 1989), the holding of Diffenderfer was found to require courts to consider such benefits a marital asset even though the pension evidence adduced was minimal. Here, the husband…
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Morrill v. Morrill, 578 So. 2d 53 (Fla. 2d DCA 1991)…award such an inadequate permanent periodic alimony sum.1 See Bowen v. Bowen, 543 So. 2d 1284 (Fla. 2d DCA 1989); Johnson v. Johnson, 517 So. 2d 790 (Fla. 2d DCA 1988); Pirino v. Pirino, 525 So. 2d 1028 (Fla. 5th DCA 1988); cf. Lovelady v. Lovelady, 576 So. 2d 946 (Fla. 2d DCA 1991) (no abuse of discretion to award $700 per month alimony; although insubstantial, incomes also meager). As a result of the final judgment, her current and expected economic situation in the foreseeable future is bleak indeed and cl…
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- Diffenderfer v. Diffenderfer, 491 So. 2d 265 (Fla. 1986)