CATHERINE HEILMAN, APPELLANT,
v.
LARRY HEILMAN, APPELLEE
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Catherine Heilman appealed the trial court's denial of alimony, equitable distribution of marital assets, and attorney's fees based solely on her marital misconduct (leaving the marriage to pursue a same-sex relationship). The Third District Court of Appeal reversed, holding that misconduct alone cannot justify denying alimony or unequal asset distribution absent a showing that the misconduct directly depleted marital resources.
No. The court held that under Noah v. Noah, the primary standard for alimony awards is the need of one spouse and the ability of the other to pay, and that misconduct is relevant only if it caused a depletion of family resources. Absent such depletion, misconduct cannot justify denying alimony or unequal asset distribution. The trial court must reconsider alimony, equitable distribution of all marital assets (including the husband's vested pension), attorney's fees, and child support on remand.
[1] Marital misconduct is not a valid reason to deny alimony absent a showing of a related depletion of marital assets.
[2] Marital misconduct is not a valid reason to deny alimony or to divide marital assets inequitably.
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Join FLexlaw to unlock all legal intelligence“Alimony is not a weapon to be used solely to punish an errant spouse”
Establishes that alimony awards cannot be based on punishment for marital misconduct; they must be based on need and ability to pay.
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Join FLexlaw to unlock all legal intelligenceAfter 21 years of marriage during which Catherine worked primarily as a homemaker raising four children, she left the marital home to live with anothe…
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FERGUSON, Judge.
After twenty-one years of marriage, during which time she worked principally as a homemaker raising four children, Cather ine Heilman left the marital domicile to move in with a woman with whom she had fallen in love. In her petition for dissolution Mrs. Heilman sought alimony, an equitable distribution of property, and attorney’s fees.1 Solely on the basis of marital misconduct, the trial court denied her petition for alimony. For the same reason, apparently, the judgment dissolving the marriage made no equitable distribution of marital assets and required the wife to pay her own attorney’s fees. We reverse.
In Noah v. Noah, 491 So. 2d 1124 (Fla.1986), the supreme court reaffirmed its position that the primary standard to be used by a trial court in considering an alimony award is the need of one spouse and the ability of the other spouse to pay. In Noah, the court rejected evidence of adultery as a relevant factor in making such awards unless the adultery caused a depletion of family resources. Id. at 1127. (quoting Williamson v. Williamson, 367 So. 2d 1016 (Fla.1979) (“Alimony is not a weapon to be used solely to punish an errant spouse”)).
See also Eckroade v. Eckroade, 570 So. 2d 1347, 1349 (Fla. 3d DCA 1990) (fact that one party was involved in serious relationship with third party is insufficient reason to deny alimony or to divide the marital assets inequitably); Pardue v. Pardue, 518 So. 2d 954, 956 (Fla. 1st DCA 1988) (improper to refuse alimony merely because of evidence of requesting spouse’s adultery).
Mr. Heilman’s argument that the family’s emotional devastation at the news of the extra-marital affair was sufficiently financially related to constitute a depletion of marital assets is not persuasive. No evidence was presented that the wife’s extra-marital relationship “translated” into a depletion of family resources. Noah, 491 So. 2d at 1127.
Absent a showing of a related depletion of marital assets, a party’s misconduct is not a valid reason to award a greater share of marital assets to the innocent spouse. Bell v. Bell, 587 So. 2d 642 (Fla. 1st DCA1991); Eckroade, 570 So. 2d at 1349. The parties’ only substantial assets were the marital home and the husband’s vested pension plan which accrued entirely during the marriage. Although the court ordered the marital home to be sold when the youngest children attained majority, and the proceeds equally divided after calculation of the appropriate credits, the final order was silent .regarding the pension plan.
The trial court should have considered the vested amount which accumulated during the marriage as a marital asset subject to equitable distribution. Diffenderfer v. Diffenderfer, 491 So. 2d 265 (Fla.1986); McKinlay v. McKinlay, 523 So. 2d 182 (Fla. 1st DCA1988). Any distribution of marital assets must be based on relevant factors enumerated by statute. See § 61.075, Fla.Stat. (1991).
In light of our holding here that Noah applies, and that there is no evidence that the wife’s misconduct had a direct adverse impact on the family’s finances, that part of the judgment distributing assets must be revisited. On remand the trial court shall reconsider the entire distribution scheme including the award of alimony, equitable distribution of marital assets, attorney’s fees, and child support including cost of psychotherapy for the children. In establishing an award of alimony based on the former wife’s needs, the trial court must also consider any support the former wife is receiving from the third party under their live-in arrangement. See DePoorter v. DePoorter, 509 So. 2d 1141 (Fla. 1st DCA1987); Bentzoni v. Bentzoni, 442 So. 2d 235 (Fla. 5th DCA 1983); Evan J. Langbein, Post-Dissolution Cohabitation: “The Best of Both Worlds?”, 57 Fla.Bar J. 656 (1983); 27B C.J.S. Divorce § 377, at 230 (1986).
Reversed and remanded for further consistent proceedings.
. Although child custody was initially a bitterly contested issue, the parties eventually agreed that the children would remain with their father.
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Citator
Cited By (11 total)
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Young v. Hector, 740 So. 2d 1153 (Fla. 3d DCA 1998)…urring specially). It seems, at least to me, ironic, and it is certainly personally upsetting, that the law is now completely to the reverse of what I think it should be. Such cases as Noah v. Noah, 491 So. 2d 1124 (Fla.1986) and Heilman v. Heilman, 610 So. 2d 60, 61 (Fla. 3d DCA 1992) establish that Florida will not permit misconduct to interfere with the right to recover money and property from one’s ex-spouse. Anderson v. Anderson, 736 So. 2d 49 (Fla. 5th DCA 1999)[24 FLW D1273] and the majority opinion h…
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Childers v. Childers, 640 So. 2d 108 (Fla. 4th DCA 1994)…v. Diffenderfer, 491 So. 2d 265 (Fla.1986). Absent a showing of a related depletion of marital assets, a party’s adulterous misconduct is not a valid reason to award a greater share of those marital assets to the innocent spouse. Heilman v. Heilman, 610 So. 2d 60, 61 (Fla. 3d DCA 1992), citing Bell v. Bell, 587 So. 2d 642 (Fla. 1st DCA 1991). See also Noah v. Noah, 491 So. 2d 1124 (Fla.1986). William Childers failed to make such a showing at trial. Some of the pension plan benefits accrued prior to the marr…
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Escudero v. Escudero, 739 So. 2d 688 (Fla. 5th DCA 1999)…of marital assets. See Noah v. Noah, 491 So. 2d 1124 (Fla.1986); Horne v. Horne, 711 So. 2d 1310 (Fla. 1st DCA 1998); Childers v. Childers, 640 So. 2d 108 (Fla. 4th DCA 1994); Murray v. Murray, 636 So. 2d 536 (Fla. 1st DCA 1994); Heilman v. Heilman, 610 So. 2d 60 (Fla. 3d DCA 1992). [*693] This includes a spouse’s criminal behavior, Murray; and abuse, Bell v. Bell, 587 So. 2d 642 (Fla. 1st DCA 1991). See also Noah, 491 So. 2d at 1127 (only adultery is a proper factor to be considered in awarding alimony). H…
Previewing 3 of 11 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Diffenderfer v. Diffenderfer, 491 So. 2d 265 (Fla. 1986)
- Noah v. Noah, 491 So. 2d 1124 (Fla. 1986)
- Williamson v. Veva C. Williamson, 367 So. 2d 1016 (Fla. 1979)
- DePOORTER v. Win Edward DePOORTER, 509 So. 2d 1141 (Fla. 1st DCA 1987)
- Eckroade v. Eckroade, 570 So. 2d 1347 (Fla. 3d DCA 1990)
- Pardue v. Pardue, 518 So. 2d 954 (Fla. 1st DCA 1988)
- Bell v. Bell, 587 So. 2d 642 (Fla. 1st DCA 1991)
- Singleton v. W. Volusia Hosp. Auth., 442 So. 2d 235 (Fla. 5th DCA 1983)
- Bentzoni v. Prudence Martin Bentzoni, 442 So. 2d 235 (Fla. 5th DCA 1983)
- McKINLAY v. McKINLAY, 523 So. 2d 182 (Fla. 1st DCA 1988)