HOWARD P. BURKHART, APPELLANT,
v.
SANDRA H. BURKHART, APPELLEE
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The appellate court affirmed the increase in alimony and its retroactivity but reversed the order requiring the appellant to secure alimony with life insurance for the first time, while affirming the award of credits for home payments and attorney's fees.
The court affirmed the trial court's increase in alimony and award of credits for home payments and attorney's fees, but reversed the order requiring the appellant to secure the alimony with life insurance as it was not authorized by statute for the first time.
[1] A trial court has discretion to award an increase in alimony when the former wife demonstrates need and the former husband has the continuous ability to pay.
[2] A trial court may not order a party to secure alimony payments with life insurance for the first time in a modification order if the original judgment did not contain suc…
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Join FLexlaw to unlock all legal intelligenceFollowing a dissolution of marriage, the former wife sought modification to increase alimony, secure it with life insurance, receive credits for home …
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ALLEN, J.
The appellant challenges an order by which a final judgment of dissolution of marriage was modified and a declaratory judgment was entered. We affirm in part and reverse in part.
The final judgment of dissolution entered in 1987 required the appellant to pay permanent alimony, but did not require the appellant to secure the alimony obligation with a policy of insurance. The final judgment also provided for the former marital home to be held by the parties as tenants in common and gave exclusive use and possession of the former marital home to the appellee for so long as she was unmarried and living in the home with one of the minor children. When the appellee married or no longer cared for a minor child, the home was to be sold and the net proceeds split equally between the parties.
In 1997 the appellee filed a petition to modify the final judgment of dissolution and for a declaratory judgment. She sought an increase in alimony, life insurance on the life of the appellant to secure the alimony award, a declaratory judgment that she was entitled to credits for mortgage and other payments she made on the former marital home while she was in exclusive possession, and attorney’s fees.
Following a hearing, the trial judge entered the order under review. The judge awarded the appellee an increase in alimony retroactive to the date of filing of the petition, required the appellant to secure that obligation with life insurance, awarded the appellee one-half of mortgage and other payments she had made on the former marital home while she was in exclusive possession, and awarded the appellee attorney’s fees.
We find no abuse of discretion in the award of an increase in alimony. The trial judge related in detail how she calculated the appellant’s income and the appel-lee’s needs. Her findings are supported by competent substantial evidence in the record, and we decline to disturb them on appeal. And we find no abuse of discretion in the judge’s making the award retroactive to the date of the petition for modification. Because the record supports a finding that the former wife had the need and the former husband had the continuous ability to pay, it was within the trial judge’s discretion to award the alimony retroactively. Kirkland v. Kirkland, 618 So. 2d 295, 296 (Fla. 1st DCA 1993), disapproved on other grounds by Boyett v. Boyett, 703 So. 2d 451 (Fla.1997).
The trial judge did err, however, in ordering for the first time in 1997 that the appellant must maintain life insurance to secure the payment of permanent alimony. Although section 61.14, Florida Statutes, gives circuit judges authority to revisit alimony, the plain language of the statute does not support the appellee’s position that the statute gave the judge authority to order insurance for the first time. Section 61.14 provides that “the court has jurisdiction to make orders ... decreasing, increasing or confirming the amount of separate support, maintenance or alimony provided for in the agreement or order.” (Emphasis supplied.) The statute says nothing about jurisdiction to entertain other issues that might bear upon alimony. We therefore conclude that the trial judge in the present case did not have authority to require the insurance coverage.
We conclude that the trial judge also erred in awarding the appellee credits for mortgage and other payments she made on the former marital home while she was in exclusive possession. The final judgment of dissolution specifically provided that “the wife shall be responsible for and pay the mortgage payments, taxes and home improvement loan owing on said home. The wife shall indemnify and hold husband harmless from all liability therefrom.” We construe this language as evincing the specific intent that the appel-lee must bear the burden of making those payments without an adjustment or credit upon the sale of the property. See Kelly v. Kelly, 583 So. 2d 667 n, * (Fla.1991).
Finally, because the record does not support a finding that the appellee is unable to pay her own fees or that the appellant is in a better position to pay her attorney’s fees than is she, we conclude that the award of attorney’s fees to the appellee constitutes an abuse of discretion. See, e.g., Cummings v. Cummings, 330 So. 2d 134 (Fla.1976); Keaton v. Keaton, 634 So. 2d 798 (Fla. 4th DCA 1994); Martinez v. Martinez, 573 So. 2d 37 (Fla. 1st DCA 1990), rev. denied, 581 So. 2d 1309 (Fla.1991).
Accordingly, we reverse those portions of the order under review by which (1) the appellant was ordered to maintain life insurance to secure the alimony award, (2) the appellee was awarded credits for mortgage installments and other payments she made on the marital home, and (3) the appellee was awarded attorney’s fees. The order is affirmed in all other respects.
WEBSTER and VAN NORTWICK, JJ., CONCUR.
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Helling v. Bartok, 987 So. 2d 713 (Fla. 1st DCA 2008)…8) (“A trial court has the discretion to modify alimony effective as of the date of the petition for modification or subsequent thereto, but it cannot modify alimony that was due prior to the filing of the petition.”); see also Burkhart v. Burkhart, 731 So. 2d 733, 734 (Fla. 1st DCA 1999); Fenner v. Fenner, 599 So. 2d 1343, 1345 (Fla. 4th DCA 1992); § 61.14(l)(a), Fla. Stat. (2007) (providing that a “court may modify ... alimony by increasing or decreasing the ... alimony retroactively to the date of the fili…
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McQUAIG v. McQUAIG, 36 So. 3d 801 (Fla. 1st DCA 2010)…competent, substantial evidence of what expenses are “ordinary and necessary” to running the Former Husband’s distributorship, the trial court did not abuse its discretion in finding that his 2008 gross income was $120,000. See Burkhart v. Burkhart, 731 So. 2d 733, 734 (Fla. 1st DCA 1999). The Former Husband also contends that the modified alimony payment is excessive because it leaves the Former Wife with 80% of the parties’ combined income, and further that the attorney’s fee award is unwarranted because t…
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Dezso Szuri v. Gizella Szuri, 759 So. 2d 709 (Fla. 3d DCA 2000)…at 1007. Accordingly, the alimony award is reversed, see Bedell v. Bedell, 583 So. 2d at 1005, as well as the order requiring the Former Husband to secure the alimony obligation by a mortgage on his commercial properties, see Burkhart v. Burkhart, 731 So. 2d 733 (Fla. 1st DCA 1999). In determining the award must be reversed, we have not overlooked the difficulties faced by the trial judge and the fact that the Former Wife misused the post-dissolution proceedings as a weapon for harassment.4 The Former Wife…
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
- Cummings v. Cummings, 330 So. 2d 134 (Fla. 1976)
- Eldis Raymell Boyett v. Boyett, 703 So. 2d 451 (Fla. 1997)
- Martinez v. Martinez, 573 So. 2d 37 (Fla. 1st DCA 1990)
- Kelly v. Kelly, 583 So. 2d 667 (Fla. 1991)
- Keaton v. Keaton, 634 So. 2d 798 (Fla. 4th DCA 1994)
- Kirkland v. Kirkland, 618 So. 2d 295 (Fla. 1st DCA 1993)