PEDRO M. GALLINAR, APPELLANT,
v.
SILVIA GALLINAR, APPELLEE
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The appellate court reversed the trial court's award of permanent alimony, finding it an abuse of discretion given the short duration of the marriage and the husband's limited ability to pay, while remanding for reconsideration of equitable distribution and attorney's fees.
The court held that the award of permanent alimony was an abuse of discretion due to the short duration of the marriage and the husband's limited financial capacity.
[1] Permanent periodic alimony is intended to provide for the needs and necessities of life of a former spouse as established by the marriage, considering factors such as ear…
[2] While the duration of a marriage is a significant factor in awarding permanent alimony, a short-term marriage does not automatically preclude such an award.
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Join FLexlaw to unlock all legal intelligenceThe parties were married for two years and eight months. The wife, due to a psychiatric condition, demonstrated a need for permanent alimony, but the …
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PER CURIAM.
Pedro Gallinar appeals a final judgment of dissolution of marriage claiming error in the award of permanent alimony, the equitable distribution and the award of attorney’s fees and costs. For the reasons which follow, we reverse. Pedro and Silvia Gallinar were married on June 14, 1994. They have one child, Roberto, who was born on October 1,1995. The Gallinars separated in March 1997, and this dissolution action commenced. The trial court rendered a Final Judgment of Dissolution of Marriage on August 31, 1998.
Permanent Alimony
Permanent periodic alimony is used to provide the needs and the necessities of life to a former spouse as they have been established by the marriage of the parties. The two primary elements to be considered when determining permanent periodic alimony are the needs of one spouse for the funds and the ability of the other spouse to provide the necessary funds. The criteria to be used in establishing this need include the parties’ earning ability, age, health, education, the duration of the marriage, the standard of living enjoyed during its course, and the value of the parties’ estates.
Canakaris v. Canakaris, 382 So. 2d 1197, 1201-02 (Fla.1980). See also § 61.08, Fla. Stat. (1997). Courts have generally denied alimony in cases involving short-term marriages. See, e.g., Castillo v. Castillo, 626 So. 2d 1035 (Fla. 3d DCA 1993) (no alimony for 37-year-old after five-year marriage); Kremer v. Kremer, 595 So. 2d 214 (Fla. 2d DCA 1992) (no permanent alimony for 36-year-old after six-year marriage); LaHuis v. LaHuis, 590 So. 2d 557 (Fla. 3d DCA 1991) (no alimony following three and a half-year marriage). However, the shortness of a marriage does not preclude an award of permanent alimony. See Volosin v. Volosin, 382 So. 2d 733, 736 (Fla. 2d DCA 1980).
This marriage lasted two years and eight months. The husband is thirty-nine and is a certified public accountant/property manager currently in practice by himself. The wife is thirty-eight and unemployed. The wife holds a college degree and worked as a teacher for five years prior to the marriage. The wife’s expert, a psychiatrist, testified that the wife’s psychiatric history began 14 years ago in college with depression and that her condition recurred on the birth of the child. The psychiatrist also testified that the wife would probably not be able to maintain gainful employment again during her lifetime. Thus, the wife has demonstrated a need for permanent alimony.
The husband’s ability to pay now, however, is limited. While a lower court may base an alimony award on past earnings and may consider the parties’ standard of living during the marriage to determine a spouse’s ability to pay, Thilem v. Thilem, 662 So. 2d 1314, 1316 (Fla. 3d DCA 1995), it appears from the record that the parties were not able to maintain the standard of living enjoyed at the beginning of their relationship. The husband was unable to pay mortgage payments on the marital home, which was on the verge of foreclosure, and the parties depleted one of the mutual funds to cover their living expenses.
Under the present circumstances, we hold that the award to the wife of $250 a week alimony was an abuse of discretion. The alimony award was outside the parameters of reasonableness based on the duration of the marriage, the husband’s earning ability, and the standard of living enjoyed by the parties, and the totality of the parties’ respective financial circumstances. The parties’ marriage was short-lived, and a modest standard of living was not established. We direct the trial court to reduce the'alimony award to insure the husband’s economic survival. The trial court should reserve jurisdiction to adjust any award if the husband’s financial circumstances change.
Equitable Distribution
The husband next challenges the distribution of assets. He claims that because he purchased the marital home with his pre-marital assets that he should have received a special equity in the home. Section 61.075(5)(a)5, Florida Statutes (1997), creates a presumption that any real property held as a tenancy by the entire-ties regardless if acquired prior to the marriage is a marital asset. However, if one spouse shows that non-marital contributions to a marital asset were not intended as a gift, then that spouse may be awarded a special equity in the asset. See Landay v. Landay, 429 So. 2d 1197 (Fla.1983).
The husband has shown that he supplied a considerable amount of equity for the down payment on the marital home from pre-marital assets. However, he has not presented any evidence to rebut the presumption that the contributions were a gift. Therefore, the husband is not entitled to a special equity in the property. See Hill v. Hill, 675 So. 2d 168 (Fla. 5th DCA 1996) (husband met burden of entitlement to special equity when wife admitted that the husband placed the property in both names for survivorship purposes only).
Attorney’s Fees
The trial court separately ordered the husband to pay all of the wife’s attorney’s fees, totaling $67,300. The husband contends that this amount is unreasonable considering the shortness of the marriage and the relatively insubstantial marital assets. Section 61.16, Florida Statutes (1997), grants discretion to the trial court to award reasonable attorney’s fees to a party after consideration of the financial resources of both parties. A review of the record does not show any abuse of the trial court’s discretion on this issue. Therefore, we affirm the award of attorney’s fees.
Child Support
Finally, the husband was awarded primary residential custody but no child support. He claims error in the trial court’s failure to impute income to the wife based on her alimony and disability income. See § 61.30(2)(a)4, 9, Fla. Stat. (1997)(income includes disability benefits and spousal support ordered in the marriage before the court). This argument must fail. The husband neglected to plead any request for child support. Additionally, the Primary Residence, Parental Responsibility and Contact Agreement between the parties does not include any reference to child support. The husband also has not provided any record support that the wife is getting disability income. However, the trial court should retain jurisdiction to address the issue of the wife’s obligation to pay child support if her financial circumstances change.
For the above reasons, we reverse the amount of permanent alimony and remand for a reduction in the award of permanent alimony. Because we find no abuse of discretion in the trial court’s order, we affirm the distribution of assets and award of attorney’s fees.
AFFIRMED in part, REVERSED in part, and REMANDED for further proceedings consistent with this opinion.
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Lakin v. Lakin, 901 So. 2d 186 (Fla. 4th DCA 2005)…. See Lagstrom v. Lagstrom, 662 So. 2d 756 (Fla. 4th DCA 1995) (wife who was severely depressed is entitled to permanent alimony following five-year marriage, where record revealed she was unable to work or be self-supporting); Gallinar v. Gallinar, 763 So. 2d 447 (Fla. 3d DCA 2000) (permanent alimony awarded to wife following a three-year marriage, where wife had psychiatric history that began fourteen years previously and where evidence indicated she would probably not be able to maintain gainful employment…
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Cullen v. Cullen, 884 So. 2d 304 (Fla. 2d DCA 2004)…fy an alimony award notwithstanding that the marriage was a short one. See, e.g., Reeves v. Reeves, 821 So. 2d 333 (Fla. 5th DCA 2002) (holding that alimony award was justified by former wife’s need to care for disabled child); Gallinar v. Gallinar, 763 So. 2d 447 (Fla. 3d DCA 2000) (finding justification for alimony award in wife’s psychiatric condition); Lagstrom v. Lagstrom, 662 So. 2d 756 (Fla. 4th DCA 1995) (holding that circuit court was within its discretion to award alimony to severe depressive). Beca…
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Federico M. Llamosas v. Llamosas, 846 So. 2d 562 (Fla. 3d DCA 2003)…e wife was in need of some additional support.1 As to the trial court’s observation that this nine year marriage was not of sufficient duration to warrant an award of permanent alimony, this is not the case.2 As we observed in Gallinar v. Gallinar, 763 So. 2d 447, 449 (Fla. 3d DCA 2000), “the shortness of a marriage does not preclude an award of permanent alimony.” See Echols v. Elswick, 638 So. 2d 581, 582 (Fla. 1st DCA 1994)(rejecting claim that “short” six year marriage required denial of permanent alimon…
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
- Canakaris v. Canakaris, 382 So. 2d 1197 (Fla. 1980)
- Sumner Landay v. Landay, 429 So. 2d 1197 (Fla. 1983)
- Kremer v. Kremer, 595 So. 2d 214 (Fla. 2d DCA 1992)
- Thilem v. Thilem, 662 So. 2d 1314 (Fla. 3d DCA 1995)
- Volosin v. Volosin, 382 So. 2d 733 (Fla. 2d DCA 1980)
- Reuben Troutman v. Troutman, 626 So. 2d 1035 (Fla. 3d DCA 1993)
- Hill v. Hill, 675 So. 2d 168 (Fla. 5th DCA 1996)
- Fla. Aviation Int'l Corp. v. A & E Aircraft, Inc., 590 So. 2d 557 (Fla. 3d DCA 1991)
- LaHUIS v. LaHUIS, 590 So. 2d 557 (Fla. 3d DCA 1991)