JAMES E. CHERESKIN, APPELLANT,
v.
MARY C. CHERESKIN, APPELLEE
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James Chereskin appeals a final judgment dissolving his marriage, challenging the award of permanent alimony, equitable distribution, attorney's fees, and child support/visitation provisions. The court vacates the judgment except for dissolution and visitation, finding that the financial obligations imposed on the husband leave him with inadequate income to live and work.
The judgment is vacated in part and remanded. The trial court must reconsider the distribution of marital debts, the amount of the wife's attorney's fees, and the monthly child support amount. The award of permanent alimony to the wife is not disagreed with, but the monthly payment amount may be reconsidered on remand.
[1] A final judgment of dissolution may be vacated in part when the financial obligations imposed on one spouse leave that spouse with insufficient income for living expenses…
[2] A trial court must ensure that neither party to a dissolution passes automatically from misfortune to prosperity or from prosperity to misfortune.
Previewing 2 of 5 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“If additional income is not imputed to him, it appears that either some adjustment to the equitable distribution will be necessary or alimony must be reduced, or a different method of equalizing the parties' equitable distributions must be fashioned, or some combination of the three must be considered.”
Establishes the core holding that the trial court must reconsider its financial orders to provide the husband adequate income
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Join FLexlaw to unlock all legal intelligenceThe parties had a substantial amount of marital and post-petition debt. The husband's net monthly income was $2,600 plus irregular stipends, while the…
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PETERSON, Chief Judge.
James E. Chereskin appeals the final judgment dissolving his marriage in which Mary C. Chereskin, his wife, was awarded permanent alimony. He also challenges the equitable distribution, the award of attorney’s fees, and certain provisions regarding child support and visitation. We vacate the final judgment, except for the portions dissolving the marriage and establishing the terms of visitation, for the reasons stated in Guzman v. Guzman, 653 So. 2d 1118 (Fla. 5th DCA 1995):
We disagree only with the unreasonable amount of monthly income that remains available to [the former husband] after the payments are made pursuant to the final judgment. If additional income is not imputed to him, it appears that either some adjustment to the equitable distribution will be necessary or alimony must be reduced, or a different method of equalizing the parties’ equitable distributions must be fashioned, or some combination of the three must be considered.
See also Marsh v. Marsh, 553 So. 2d 366 (Fla. 5th DCA 1989) (judgment reversed where trial court imposed monthly obligations on husband of $1523 while imputing a monthly income to him of $1387, and court directed on remand to make “due allowance for the husband to retain sufficient amount of his income in order that he may live and work.”). See also Canakaris v. Canakaris, 382 So. 2d 1197, 1204 (Fla.1980) (“trial judge must ensure that neither party passes automatically from misfortune to prosperity or from prosperity to misfortune, and in viewing the totality of the circumstances, one spouse should not be ‘short-changed.’ ”).
In the instant case, the primary problem faced by the trial court and the parties is the large amount of marital and post-petition debt incurred by the parties. The payments required of the husband, however, for alimony, child support, and debt retirement, leave him with only $250 per month for his living expenses. Further, the judgment leaves the husband with a negative net worth of $66,-000, even without factoring the award of attorney’s fees to the wife. The husband’s net monthly income is $2600 plus irregular stipends paid by the employer from time to time, while the wife’s net monthly income from employment is $941.
In view of this financial situation, the trial court on remand should reconsider the distribution of the marital debts. The court may also reconsider the amount of the wife’s attorney’s fees the husband should be required to pay, and the monthly amount of child support he should be required to pay. We do not disagree with the award of permanent alimony to the wife, although, upon remand, the trial court may wish to consider a smaller monthly payment. The wife may seek a modification if and when the financial resources of the husband improve.
Unfortunately, the parties’ financial situation is typical of dissolution cases that do not find resolution in a settlement. While it is to the parties’ credit that they do not seek relief in bankruptcy and wish their creditors to be satisfied, the debt load apparently inhibited settlement and the trial judge was thus faced with the task of fashioning an almost impossible plan. The result, however, is a plan that places the husband in a position of predictable failure and despair. JUDGMENT VACATED IN PART; REMANDED.
W. SHARP, and THOMPSON, JJ., concur.
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Crick v. Robbin Vickery Crick, 78 So. 3d 696 (Fla. 2d DCA 2012)…rt shall conduct further proceedings to determine the parties’ needs and ability to pay given their respective available net incomes. See id; Perez, 11 So. 3d at 473; Posner v. Posner, 988 So. 2d 128, 130 (Fla. 4th DCA 2008); Chereskin v. Chereskin, 665 So. 2d 1133, 1134 (Fla. 5th DCA 1996). Attorney’s fees The former husband next contends that the court abused its discretion in ordering him to pay one half of the former wife’s attorney’s fees. Because our remand for reconsideration of equitable distribution…
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Miller v. Blair A. Miller, 707 So. 2d 419 (Fla. 4th DCA 1998)…the record evidence and findings as to his ability to pay. See Benenfeld v. Benenfeld, 705 So. 2d 1072 (Fla. 4th DCA 1998)(holding that a husband cannot be required to pay a support award that exceeds his financial ability); Chereskin v. Chereskin, 665 So. 2d 1133 (Fla. 5th DCA 1996)(reversing final judgment which required payments by husband for support that left him only $250 per month for his expenses); Ginsburg v. Ginsburg, 610 So. 2d 655 (Fla. 1st DCA 1992). With respect to the award of temporary attor…
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Mauck v. Mauck, 702 So. 2d 1311 (Fla. 5th DCA 1997)…CO $ 924 There was no dispute in the record concerning the parties’ net incomes. Based on that circumstance, we conclude these obligations place Richard in a perilous economic situation. They are beyond his ability to pay. Chereskin v. Chereskin, 665 So. 2d 1133 (Fla. 5th DCA 1996); Sheiman v. Sheiman, 472 So. 2d 521 (Fla. 4th DCA 1985), rev. denied, 486 So. 2d 597 (Fla.1986). Thus these awards are an abuse of discretion, even though we do not overturn the trial court’s findings that Richard was at fault in…
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Canakaris v. Canakaris, 382 So. 2d 1197 (Fla. 1980)
- Marsh v. Marsh, 553 So. 2d 366 (Fla. 5th DCA 1989)
- Romeo G. Guzman v. Guzman, 653 So. 2d 1118 (Fla. 5th DCA 1995)