EUGENE H. SANTORO, APPELLANT,
v.
EDDA L. SANTORO, APPELLEE
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In this dissolution of marriage case, the Florida appellate court reversed the trial court's award of permanent periodic alimony to the wife, holding that marital misconduct (the husband's affairs) cannot be considered as a basis for alimony unless it caused a depletion of marital assets affecting the parties' ability to pay or need for alimony.
Marital misconduct may not be considered as a basis for alimony unless it causes a depletion of marital assets that affects one spouse's ability to pay alimony or the other spouse's need for alimony. The trial court erred in relying on the emotional consequences of the husband's affairs as a factor in awarding permanent periodic alimony.
[1] Marital misconduct may not be used as a basis for an award of alimony unless it causes a depletion of marital assets affecting the ability to pay or the need for alimony.
[2] A court errs in considering evidence of marital misconduct when fashioning an award of permanent periodic alimony if the misconduct did not have untoward financial effect…
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Join FLexlaw to unlock all legal intelligence“unless such marital misconduct causes a depletion of marital assets, thus affecting one spouse's ability to pay alimony or the other spouse's need for alimony, it may not be used as a basis for an award of alimony”
Establishes the governing legal rule for when marital misconduct is relevant to alimony awards
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Join FLexlaw to unlock all legal intelligenceEugene and Edda Santoro were divorcing. The trial court found that the husband engaged in numerous affairs that caused the wife emotional distress ove…
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CAMPBELL, Acting Chief Judge.
In this dissolution action, appellant, Eugene H. Santoro (Husband), has raised six issues on appeal. We affirm on all issues but the one challenging the award of permanent periodic alimony, which award we reverse and remand for reconsideration due to an improper finding.
In its findings in support of the award of permanent periodic alimony, the court specifically found that Husband’s marital misconduct, consisting of many affairs on Husband’s part, which caused appellee, Edda L. Santoro (Wife), years of emotional distress, was one of several factual bases relied upon by the trial judge for the award. However, the rule in such eases is that unless such marital misconduct causes a depletion of marital assets, thus affecting one spouse’s ability to pay alimony or the other spouse’s need for alimony, it may not be used as a basis for an award of alimony. Noah v. Noah, 491 So. 2d 1124 (Fla.1986); Heilman v. Heilman, 610 So. 2d 60 (Fla. 3d DCA 1992).
Since the court’s finding here is not based upon a further finding of any untoward financial effects of Husband’s adultery, but is based on the emotional consequences to Wife, we conclude that the court erred in considering evidence of Husband’s marital misconduct in fashioning an award of permanent periodic alimony. See Green v. Green, 501 So. 2d 1306 (Fla. 4th DCA 1986), rev. denied, 513 So. 2d 1061 (Fla.1987).
We, accordingly, reverse and remand the award of permanent periodic alimony, based, as it is, on an improper consideration. In doing so, we observe that the record before this court is deficient insofar as there is no transcript because no court reporter was present at the hearing. See Hirsch v. Hirsch, 642 So. 2d 20 (Fla. 5th DCA 1994); Casella v. Casella, 569 So. 2d 848 (Fla. 4th DCA 1990). We note further that the documentary record that we do have, containing copies of the parties’ income tax returns, does not support the court’s imputation of $3,000 per month in income to Husband. In the absence of a transcript, however, we are unable to determine conclusively that an error was made. On remand, we recommend that the court’s findings in support of any alimony awarded be more specific and reflect record support.
The absence of a transcript has similarly caused us to affirm Husband’s other issues due to the presumption of correctness enjoyed by the trial court and the fact that it is Husband’s burden to provide this court with a record that supports his position. In the absence of same, we are forced to affirm except as to this award of permanent periodic alimony.
SCHOONOVER and QUINCE, JJ., concur.
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Eneida Chirino v. Chirino, 710 So. 2d 696 (Fla. 2d DCA 1998)…gment of dissolution that pertain to the marital home, alimony and attorney’s fees and costs. We are compelled to affirm because, in the absence of a transcript, we are unable to determine conclusively that an error was made. See Santoro v. Santoro, 642 So. 2d 86 (Fla. 2d DCA 1994). Instead, we must presume that the findings in the judgment are correct. See Hirsch v. Hirsch, 642 So. 2d 20 (Fla. 5th DCA 1994). The record contains no transcript of the final hearing because no court reporter was present. Ther…
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Haley v. Haley, 649 So. 2d 332 (Fla. 5th DCA 1995)…nce it has increased the appellant’s need for support (beyond the fact of the divorce itself), the court did not err in failing to award alimony based on the husband’s marital misconduct. Noah v. Noah, 491 So. 2d 1124 (Fla.1986); Santoro v. Santoro, 642 So. 2d 86, 87 (Fla. 2d DCA 1994); cf. Poe v. Poe, 522 So. 2d 50 (Fla. 5th DCA 1988). AFFIRMED. HARRIS, C.J., and THOMPSON, JJ., concur.…
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Katowitz v. Solange Katowitz, 684 So. 2d 256 (Fla. 3d DCA 1996)…limited to legal errors appearing on . the face of the judgment. See Applegate v. Barnett Bank, 377 So. 2d 1150 (Fla. 1979); Haddad v. Cura, 674 So. 2d 168 (Fla. 3d DCA 1996); Hirsch v. Hirsch, 642 So. 2d 20 (Fla. 5th DCA 1994); Santoro v. Santoro, 642 So. 2d 86 (Fla. 2d DCA 1994); Casella v. Casella, 569 So. 2d 848 (Fla. 4th DCA 1990); Ahmed v. Travelers Indem. Co., 516 So. 2d 40 (Fla. 3d DCA 1987). . The court also noted that the alimony amount “wiE be offset by the elimination of storage costs paid-by t…
Previewing 3 of 5 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Noah v. Noah, 491 So. 2d 1124 (Fla. 1986)
- Casella v. Casella, 569 So. 2d 848 (Fla. 4th DCA 1990)
- Hirsch v. Hirsch, 642 So. 2d 20 (Fla. 5th DCA 1994)
- Heilman v. Heilman, 610 So. 2d 60 (Fla. 3d DCA 1992)
- Margerie Green v. Green, 501 So. 2d 1306 (Fla. 4th DCA 1986)