MARGARET KAY BURDICK, APPELLANT/CROSS APPELLEE,
v.
BURTON E. BURDICK, BURTON E. BURDICK, P.A., A FLORIDA CORPORATION, CLAUDIA BURDICK FIELDS, AND BEBCO, APPELLEES/CROSS APPELLANTS

Fla. 4th DCA | 1992-07-01
No. 90-1805
WARNER, POLEN, JJ., and FEDER, RICHARD Y., Associate Judge, concur.
601 So. 2d 632 Florida District Court of Appeal, Fourth District (1992) Caution
Cited by 10 cases

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Synopsis

The court affirmed the denial of permanent alimony and the attorney's fee award, but reversed the discharge of alimony arrearages and the imposition of a lien on jointly owned property.


Holding

The court affirmed the trial court's decision not to reserve jurisdiction for future modification of alimony, finding no abuse of discretion. The court also affirmed the attorney's fee award and the denial of permanent alimony.


Headnotes

[1] A trial court has discretion to determine whether to reserve jurisdiction to modify alimony awards in the future.

[2] A trial court errs by discharging alimony arrearages that accumulated prior to a petition for modification.

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Facts & Procedural History

The former wife appealed the denial of permanent alimony and the reservation of jurisdiction to modify it, while the former husband cross-appealed the…

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Opinion of the Court
PER CURIAM.

PER CURIAM.

Margaret Burdick appeals from a final judgment of dissolution of marriage. Burton Burdick, her former husband, cross appeals from the trial court’s attorney’s fee award. The former husband’s daughter from a prior marriage, Claudia Fields, joins as a cross appellant and appeals from a portion of the final judgment that placed a lien against certain property she owns jointly with the former husband. We affirm in part, reverse in part and remand.

The parties were married for nineteen years and had two children. At the final hearing, one child had reached majority and the other was almost eighteen years of age. The former wife is forty-six years old and the former husband, sixty-seven. During the marriage, the wife worked full-time as a legal secretary in the husband’s law office. Shortly before the parties’ separation, however, the wife went to work for another attorney. It is undisputed in the record that the wife never earned more than $500.00 per week as a legal secretary. It is also undisputed that the wife suffers from lupus, a degenerative disease.

The husband is an attorney in Broward County who practiced as a partner in a law firm for many years until 1982, when he began a solo practice.

The record shows that the husband had some very lucrative years in practice and that the years of 1988 and 1989 were no exception. The wife admits that she received a portion of the fees the husband collected as part of equitable distribution.

In August 1989, the husband discovered that his secretary/bookkeeper had forged his signature on numerous checks on his professional association’s account which resulted in a loss to the P.A. of $200,000.00 plus. At the time of final hearing the P.A. had obligations of approximately $80,955.00 and the husband moved to a smaller, less expensive office as a result. It is not disputed that the husband has suffered from high blood pressure for the past several years and that he currently suffers from periodic anxiety and depression. The wife argues that the trial court abused its discretion when it denied her prayer for an award of permanent alimony of $1.00 per year and failed to reserve jurisdiction to modify the alimony in the future. She contends that her medical condition creates the likelihood that there will be a change in circumstances in the future which will necessitate an increase in her alimony. Had the trial court opted to reserve jurisdiction to modify the alimony award in the future, we would have had no difficulty affirming such a decision.

Nevertheless, the question of whether to reserve jurisdiction in the final judgment lies within the trial court’s sound discretion. Roy v. Roy, 522 So. 2d 75 (Fla. 4th DCA 1988). Reasonable persons could differ as to the propriety of the court’s action.

We hold that the court did not abuse its discretion. Canakaris v. Canakaris, 382 So. 2d 1197, 1203 (Fla.1980).

The wife next contends that the trial court abused its discretion when it granted the husband’s modification of an agreed temporary support order and discharged the husband’s alimony arrearages.

We hold that the trial court acted within its discretion when it modified the temporary support order; however, we agree with appellant that the trial court erred when it effectively discharged the husband’s support arrearages, if any, which accumulated prior to his filing of the petition for modification.

Thus, we reverse this portion of the final judgment and remand with directions to the court to reconsider the issue and to order payment of any arrearages consistent with this opinion. If the husband has difficulty meeting these obligations, the court may order payments in installments or otherwise structure the manner of payment to facilitate the husband’s compliance with said order. See Smithwick v. Smithwick, 343 So. 2d 945 (Fla. 3d DCA 1977).

The husband cross appeals the trial court’s award of attorney’s fees to the wife, as well as the court’s order that he pay for the transcript on appeal. We affirm the court’s award, finding no abuse of discretion.

We find merit in Claudia Field’s argument that the trial court erred when it ordered in the final judgment of dissolution that a lien be placed on the nursery school property. We find no authority, statutory or otherwise, for the imposition of a lien on this particular piece of property at the time of the final judgment.

Accordingly, we affirm the points on the wife’s appeal, with the exception of the one regarding alimony arrearages, which we remand for reconsideration; we affirm the award of attorney’s fees and costs to the wife and reverse the trial court’s imposition of a lien on the nursery school property. The final judgment is affirmed in all other respects.

WARNER, POLEN, JJ., and FEDER, RICHARD Y., Associate Judge, concur.


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Cited By

  • Deena Dykes v. Dykes, 712 So. 2d 1189 (Fla. 1st DCA 1998)
    …la. 2d DCA 1978); Steinau v. Steinau, 343 So. 2d 631, 632 (Fla. 4th DCA 1977). Accord Van Loon v. Van Loon, 132 Fla. 535, 182 So. 205 (1938); State, Department of [*1194] Revenue v. Screws, 688 So. 2d 391, 392 (Fla. 2d DCA 1997); Burdick v. Burdick, 601 So. 2d 632, 634 (Fla. 4th DCA 1992)(reversible error to discharge support arrearages which accumulated prior to filing of petition for modification). In this case, the order of modification states in part: “The Court adjusts the pre-petition arrearage to be $…
  • Lambertini v. Lambertini, 817 So. 2d 942 (Fla. 3d DCA 2002)
    …ere is, however, a caveat. The obligor must have the ability to pay the deduction amount. An installment amount, or an income deduction amount, cannot be established which would leave the obligor without sufficient funds to live. Burdick v. Burdick, 601 So. 2d 632, 634 (Fla. 4th DCA 1992). The motion for an income deduction order was filed in September 2001. Just five months previously, in April 2001, the trial court after evidentiary hearing had concluded that the former husband did not have the ability to…
  • Marina Esteva v. Rodriguez, 913 So. 2d 684 (Fla. 3d DCA 2005)
    …CA 1983). Otherwise, the court should not retain jurisdiction. In other words, there must presently appear in the record foreseeable circumstances to take place in the future as would at that time support an award of alimony. In Burdick v. Burdick, 601 So. 2d 632 (Fla. 4th DCA 1992), the court affirmed an order denying nominal alimony to a wife who suffered from lupus, a degenerative disease, observing: The wife argues that the trial court abused its discretion when it denied her prayer for an award of perm…

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