GLADYS GILLETTE, APPELLANT,
v.
WILLIAM GILLETTE, APPELLEE
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A wife appeals a final judgment dissolving her marriage, challenging the trial court's failure to award child support for the husband's grandson, the inadequacy of alimony, and the denial of attorney's fees. The appellate court affirmed the denial of grandson support, reversed the alimony and attorney's fees awards as inadequate and an abuse of discretion, and remanded for reconsideration.
The trial court properly denied child support for the grandson as that issue was not raised in the pleadings. However, the trial court erred in awarding only $150 per month in permanent periodic alimony, as this amount was grossly inadequate given the relevant statutory factors. The trial court also erred in denying attorney's fees and costs given the husband's superior financial position.
[1] A trial court cannot order child support for a minor grandson when the issue was not raised in the pleadings.
[2] An award of permanent periodic alimony may be deemed grossly inadequate when considering the duration of the marriage, a spouse's poor health, the other spouse's superior…
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Join FLexlaw to unlock all legal intelligence“there is no doubt that the award of only $150.00 a month as permanent periodic alimony is grossly inadequate”
Establishes that the trial court's alimony award was an abuse of discretion and inadequate under the circumstances
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Join FLexlaw to unlock all legal intelligenceGladys Gillette and William Gillette were married. The wife has poor health and limited earning capacity, having provided homemaking and child-care se…
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PER CURIAM.
The wife, Gladys Gillette, appeals from the final judgment dissolving her marriage to William Gillette [husband]. We affirm in part, reverse in part and remand for further proceedings consistent with this opinion.
First, the wife contends that the trial court erred in failing to order the husband to pay child support for his minor grandson. We disagree.
The issue of child support for the husband’s grandson was not raised in the pleadings. Therefore, the trial court did not err in failing to hear testimony as to issue of child support for the husband’s grandson or in failing to order the husband to pay child support for his minor grandson. See Cravero v. Florida State Turnpike Auth., 91 So. 2d 312 (Fla.1956); Cortina v. Cortina, 98 So. 2d 334 (Fla.1957). The affirmance of this point is without prejudice so that the wife may seek child support for the husband’s grandson from the appropriate party.
Next, the wife contends that the award of only $150.00 a month in permanent periodic alimony is inadequate. We agree.
When taking into consideration such relevant factors as the duration of the parties’ marriage, the wife’s poor health, the husband’s superior financial position, the wife’s limited earning capacity, and the services rendered by the wife in homemaking and child care, there is no doubt that the award of only $150.00 a month as permanent periodic alimony is grossly inadequate. See Canakaris v. Canakaris, 382 So. 2d 1197 (Fla.1980); Hamblen v. Hamblen, 380 So. 2d 1074 (Fla. 2d DCA), review denied, 389 So. 2d 1110 (Fla.1980); § 61.09, Fla.Stat. (1989).
Finally, the wife contends that the trial court abused its discretion in failing to award her attorney’s fees and costs. We agree.
A trial court may award attorney’s fees and costs “after considering the financial resources of both parties_” § 61.16, Fla.Stat. (1989). The record clearly demonstrates that the husband is in a superior financial position to pay the attorney’s fees and costs. Therefore, the trial court abused its discretion in failing to award attorney’s fees and costs to the wife. See Canakaris; Creel v. Creel, 568 So. 2d 942 (Fla. 3d DCA 1990); Kuse v. Kuse, 533 So. 2d 828 (Fla. 3d DCA 1988).
Accordingly, we affirm in part, reverse in part and remand for further proceedings consistent with this opinion.
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Leonard v. Leonard, 613 So. 2d 1339 (Fla. 3d DCA 1993)…es’ financial positions, and the husband’s superior earnings, it is clear that the trial court abused its discretion in failing to award attorney’s fees and costs to the wife. See Rey v. Rey, 598 So. 2d 141 (Fla. 5th DCA 1992); Gillette v. Gillette, 587 So. 2d 634 (Fla. 3d DCA 1991). Reversed and remanded for further proceedings consistent with this Opinion. SCHWARTZ, C.J., and LEVY, J., concur.…
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Nowell v. Nowell, 634 So. 2d 235 (Fla. 1st DCA 1994)…in this record, we find that the trial court abused its 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 fi…
Authorities Cited
- Canakaris v. Canakaris, 382 So. 2d 1197 (Fla. 1980)
- Cortina v. Cortina, 98 So. 2d 334 (Fla. 1957)
- Kuse v. Kuse, 533 So. 2d 828 (Fla. 3d DCA 1988)
- State of Fla. ex rel. Maule Indus., Inc. v. Honorable George E. Holt, 91 So. 2d 312 (Fla. 1956)
- Creel v. Creel, 568 So. 2d 942 (Fla. 3d DCA 1990)
- Hamblen v. Clark Gene Hamblen, 380 So. 2d 1074 (Fla. 2d DCA 1980)