BERNARD L. FRIEDMAN, APPELLANT,
v.
TERRY S. FRIEDMAN, APPELLEE
AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.
In a dissolution of marriage case, the trial court awarded the wife temporary support of $100,000 upfront and $50,000 monthly without designating whether the payments were for attorney's fees, costs, temporary support, or equitable distribution. The appellate court reversed, holding that such undifferentiated awards must be governed by the wife's needs and the husband's ability to pay, and cannot rely on trust assets where the trustee is not a party to the suit.
The court reversed the award, holding that while unallocated support awards may be approved in special circumstances, an undifferentiated amount must still be governed by the spouse's needs as established by the marital standard of living and the paying spouse's ability to pay. The court cannot rely on trust assets to determine ability to pay when the trustee is not a party to the suit and has no obligation to pay the ordered amounts.
[1] A trial court errs in awarding undifferentiated temporary relief that fails to specify whether the funds are for attorney's fees, costs, temporary support, or equitable d…
[2] A temporary support award must be based on the requesting spouse's needs and the paying spouse's ability to pay.
Previewing 2 of 4 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“a support award must still be governed by the wife's needs as established by the parties' standard of living during the marriage and the husband's ability to pay”
Establishes the foundational requirements for any support award, even undifferentiated ones
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceThe husband (age 79) and wife (age 76) were married for 40 years. The wife suffers from physical ailments and has expenses of approximately $22,500 pe…
The full statement of facts, procedural history, and disposition for this case are member content.
Join FLexlaw to unlock all legal intelligence© FLexlaw, Inc. — AI-generated enrichments are proprietary. All rights reserved.
Explore caselaw by topic → Browse Needs Of Spouse cases and more on FLexlaw
WARNER, J.
In the trial court’s award for temporary relief in this dissolution action, it ordered the husband to pay $100,000 within a month and $50,000 a month thereafter but failed to designate whether the money was for attorney’s fees, costs, temporary support, or equitable distribution. The husband contends the court erred in its award because the undifferentiated amount bears no relationship to the wife’s needs, the husband’s ability to pay, and relies on trust assets where the trust is not a party to the suit. We agree and reverse.
The husband and wife have been married for forty years. The wife, age 76, suffers from various physical ailments for which the husband has always paid the medical expenses. The husband, age 79, has been the sole supporter for the family. His assets consist of stock in Analogic Corporation, the marital home in Palm Beach, and a trust containing approximately $10,000,000 in assets. The trust provides for the husband, the wife, the husband’s sister, and the wife’s mentally ill son. The husband testified that he did not believe he had the power to revoke the trust’s current trustee, and all the trustee’s decisions required the consideration of the needs and interests of all the beneficiaries. Despite this testimony, the trustee was not made a party to the dissolution proceeding.
The wife moved for an order of temporary support and attorney’s fees. The wife’s accountant testified that the wife’s expenses amount to $22,500 per month, which includes household expenses that the husband currently pays. The wife would need an additional $11,000 per month if the husband continues to pay the household expenses. Included in the $11,000 figure is $1,500 to support her mentally ill son, who is currently being supported by the trust.
Due to the complications surrounding the trust, the parties significantly disputed the husband’s income. While the wife’s accountant testified that the husband nets about $44,000 per month, the husband’s expert testified that the husband’s monthly net income is actually $19,000. Moreover, according to his accountant, after paying both parties’ expenses, the husband has a monthly deficit of $7,000.
As to the wife’s motion for attorney’s fees, her attorney testified that he had expended $127,000 in attorney’s fees to date and requested approximately $500,000 in additional attorney’s fees pendente lite. In rebuttal, the husband’s attorney testified the entire expenses for the case should total only one quarter of that amount.
In granting temporary relief, the trial court awarded the wife the exclusive possession of the marital home and required the husband to pay all of the household expenses as well as the wife’s medical expenses. The court ordered a direct payment of $100,000 followed by payments of $50,000 per month. The court stated:
And I think that Mr. Friedman should cough up $100,000 no later than May 10th. I make no determination whatsoever at this time whether those are fees, costs, supports or advance (sic) against equitable distribution. That will be determined at a later time. And at the 10th of each month thereafter he should fund another $50,000. The wife has complete discretion as to how she spends that money. Whether she spends it on accountants, lawyers or clothes or jewelry, whatever she wants, we will decide how to designate it at the end.
From this order the husband appeals.
While unallocated support awards of alimony and child support have been approved in special circumstances, see, e.g., Pastore v. Pastore, 497 So. 2d 635, 637 (Fla.1986) (awarding unallocated child support and alimony award consisting of house payment, taxes, and insurance;) McKelvey v. McKelvey, 534 So. 2d 801, 801 (Fla. 3d DCA 1988) (awarding undifferentiated temporary alimony and support of $10,000 per month), a support award must still be governed by the wife’s needs as established by the parties’ standard of living during the marriage and the husband’s ability to pay. See Wenzel v. Wenzel, 512 So. 2d 275, 275 (Fla. 4th DCA 1987) (citations omitted). We have never approved a temporary award where an undifferentiated amount was allowed to both support the spouse and compensate the spouse’s attorney.
The wife’s needs, as testified to by her own accountant, would be at most around $11,000 per month, including the household and medical expenses paid for by the husband. Therefore, the trial court’s suggestion that the remaining $39,000 might be spent on additional clothes or jewelry shows that the $50,000 monthly amount had no relation to the wife’s needs as determined from the marital standard of living. It is similar to the award we disapproved of in Couples v. Couples, 623 So. 2d 585, 586 (Fla. 4th DCA 1993), of an additional $25,000 per month in monies to the wife to spend “however she desires.”
The wife contends that the court intended any remaining funds be used to pay her attorney’s fees. However, the trial court did not require that the money be paid to the attorney. If the court intended to award attorney’s fees as part of the $50,000 it should have determined the amount. Without such a determination, the husband cannot challenge the reasonableness of the amount. Moreover, without determining the amount of the award allocable to attorney’s fees, the tax consequences of the award cannot be determined.
An award of support, or attorney’s fees, also must consider the paying spouse’s ability to pay. See Belcher v. Belcher, 271 So. 2d 7, 11 (Fla.1972). Here, the wife’s accountant testified that the husband has a net monthly income of $44,000. This amount would not cover the $50,000 per month the husband is ordered to pay, plus the household and medical expenses he also is obligated to pay. The court made no findings as to the husband’s income or his ability to pay these amounts.
From the comments at the hearing, we assume that the trial court considered the trust as the source from which the husband could pay any award. However, there was no evidence that the trustee had any obligation to pay these awards on behalf of the husband. A trustee has the duty to administer a trust diligently for the benefit of the beneficiaries. See § 737.301, Fla. Stat. (1995). Although the trustee of the trust in the instant appeal has absolute discretion to pay out income and principal to the beneficiaries, he still must exercise good faith and be judicious in the administration of the trust. See Mesler v. Holly, 318 So. 2d 530, 533 (Fla. 2d DCA 1975). A trustee must deal impartially with the trust beneficiaries, i.e., treat them evenhandedly and act in the interest of the trust as a whole. See Morse v. Stanley, 732 F. 2d 1139, 1145 (2d Cir.1984) (citations omitted). Because there is no evidence of an obligation to pay these support amounts from the trust, and the trustee is not a party to the action so that the court might compel payments, the trial court erred in relying on the trust assets when determining the husband’s ability to pay the monthly sums ordered.
For these reasons, we reverse the order of the trial court and remand for further proceedings.
GUNTHER, J., and HARNAGE, HENRY H., Associate Judge, concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
-
Isadore Philips Bolton v. Bolton, 898 So. 2d 1084 (Fla. 4th DCA 2005)…sidering the award on remand may alter the economic circumstances of the parties, we conclude that it is prudent to reverse on this issue for further consideration of the husband’s ability to provide suit money to the wife. See Friedman v. Friedman, 844 So. 2d 789, 792 (Fla. 4th DCA 2003). AFFIRMED IN PART, REVERSED IN PART, AND REMANDED for further proceedings consistent with this opinion. FARMER, C.J., GUNTHER and WARNER, JJ., concur.…
-
Brigham v. Brigham, 11 So. 3d 374 (Fla. 3d DCA 2009)…s cause of action, the evidence is overwhelming that he breached his fiduciary duties as trustee. A trustee has the duty to administer the trust diligently for the benefit of the beneficiaries. See § 737.301, Fla. Stat. (1994); Friedman v. Friedman, 844 So. 2d 789, 791 (Fla. 4th DCA 2003). A trustee must deal impartially with the trust beneficiaries, i.e., treat them even-handedly and act in the interest of the trust as a whole. Id. As we stated in Keye, 684 So. 2d at 210, “finding Keye had breached his fidu…
Authorities Cited
- Annabelle G. Belcher v. Belcher, 271 So. 2d 7 (Fla. 1972)
- Pastore v. Pastore, 497 So. 2d 635 (Fla. 1986)
- Morse v. Stanley, 732 F.2d 1139 (2d Cir. 1984)
- Mesler v. Holly, 318 So. 2d 530 (Fla. 2d DCA 1975)
- Wenzel v. Wenzel, 512 So. 2d 275 (Fla. 4th DCA 1987)
- McKELVEY v. McKELVEY, 534 So. 2d 801 (Fla. 3d DCA 1988)
- Couples v. Couples, 623 So. 2d 585 (Fla. 4th DCA 1993)