CHARLES POSNER, APPELLANT,
v.
TONI POSNER, APPELLEE
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In this dissolution of marriage appeal, the Florida Fourth District Court of Appeal reversed alimony and child support awards that cumulatively consumed nearly all of the husband's net monthly income ($4,109 out of $4,134), leaving him with essentially nothing for his own living expenses. The court found such awards constitute an abuse of discretion as they exceed the obligor's ability to pay.
The court held that the cumulative monetary awards constitute an abuse of discretion because they leave the obligor with no money for personal needs and place an undue burden without justification. The court reversed the monetary awards and remanded for reevaluation of the parties' financial circumstances and fashioning of appropriate awards.
[1] A trial court abuses its discretion when the cumulative effect of all monetary awards in a dissolution judgment leaves one party with insufficient funds for living expens…
[2] A trial court abuses its discretion by characterizing a debt as non-marital for one purpose and then applying it as a marital liability in the overall division of assets…
Previewing 2 of 3 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“Where the husband's income is nearly exhausted on obligations imposed by the final judgment, leaving him with practically no money to support himself, reasonable persons could not differ as to the impropriety of the actions taken by the trial court.”
Establishes the legal standard that alimony and support awards leaving the obligor with no funds for personal needs constitute an abuse of discretion.
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Join FLexlaw to unlock all legal intelligenceThe parties were married for four years and have three children (triplets, age four), one with Down's syndrome. The husband is an equities trader at a…
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FARMER, J.
Both husband and wife appeal their final judgment of dissolution of marriage. Between them their briefs raise 19 issues, 17 of which are his. In spite of his forensic excesses and lack of restraint, we do find several errors by the trial court and address only those issues.
The final judgment awarded her bridge-the-gap alimony, lump sum alimony, and child support. He was also ordered to pay other expenses related to the children. He argues that the cumulative effect of all the monetary awards is unsupported by the evidence, exceeds his financial abilities and is therefore an abuse of discretion. We agree and reverse.
They were married for four years when she petitioned for dissolution. He is an equities trader at a hedge fund. She is a homemaker. They have three children, triplets now four years old. One of the children has Down’s syndrome.
She has net non-marital assets of just over $417,000; he has just over $98,000. They have net marital assets of $55,000. In dividing the marital property equitably, the court ordered her to pay him $91,520, leaving each with $27,506 in marital assets. At the same time, the court awarded her lump sum alimony of $91,520. The effect of these awards is to leave him with net marital assets of (-$64,000), and her with net marital assets of $119,026. As a result, he has been left with total assets of $34,242; she with $536,026.
He has net monthly income of $4,134. The trial court ordered him to make the following monthly payments:
Bridge-the-Gap alimony: $2,500
Child Support: 1,079
Pre-school Tuition: 375
Life Insurance: 55
Child Support Arrearages: 100.
$4,109 Additionally, the court ordered him responsible for half of any deductibles and non-covered medical expenses of the children. These awards leave him with nothing for living expenses.
“Where the husband’s income is nearly exhausted on obligations imposed by the final judgment, leaving him with practically no money to support himself, reasonable persons could not differ as to the impropriety of the actions taken by the trial court.” Ballesteros v. Ballesteros, 819 So. 2d 902 (Fla. 4th DCA 2002). Here the total support and expense awards consume nearly all of the his net monthly income. Based on the record evidence and findings as to his ability to pay, the total award places an undue burden on him without any justification — assuming that he could be required to pay an amount leaving him with nothing for his personal needs. See Calderon v. Calderon, 730 So. 2d 400 (Fla. 5th DCA 1999) (former husband could not be charged with permanent periodic alimony, child support, and mortgage payments totaling $2549, where his net income was $2760); Radziwon v. Radziwon, 710 So. 2d 748, 748-49 (Fla. 4th DCA 1998) (the trial court abused its discretion in setting former husband’s alimony obligation at $866 per month, with an additional payment of $200 per month toward the alimony arrearage; former husband’s net monthly income was $1775, former wife’s net monthly income was $1263, and the former husband was left with only $709 per month to support himself after paying alimony. Former wife would have had $2,128.85 available for her needs); Benenfeld v. Benenfeld, 705 So. 2d 1072 (Fla. 4th DCA 1998) (alimony award was excessive where alimony award and insurance deductible together constituted nearly 80% of the husband’s net income); Decker v. Decker, 660 So. 2d 1162 (Fla. 4th DCA 1995) (court abused its discretion in awarding wife alimony and child support constituting 76% of husband’s income); Thomas v. Thomas, 418 So. 2d 316 (Fla. 4th DCA 1982) (reversed alimony and child support award which amounted to 58% of husband’s net income).
We do not single out any specific award, finding only that as a whole the awards here leave him in a hole and thus constitute an abuse of discretion. We remand to the trial court for a thorough reevaluation of financial circumstances of the parties and to fashion an award consistent therewith.
Additionally, the trial court determined that $12,214 in credit card debt was a non-marital liability of the wife. But in calculating the assets and liabilities of the parties, the court applied this debt as a marital liability. This too should be corrected on remand.
Monetary awards reversed; remainder affirmed.
KLEIN and HAZOURI, JJ., concur.
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Crick v. Robbin Vickery Crick, 78 So. 3d 696 (Fla. 2d DCA 2012)…ing $2000 per month in bridge-the-gap alimony. On remand, the court 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…
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Carola Yeakle v. Yeakle, 12 So. 3d 884 (Fla. 4th DCA 2009)…amounts to less than half of what it was two years ago. Although each award or responsibility placed on the wife, standing alone, may not be excessive, the cumulative total of the awards can constitute an abuse of discretion. See Posner v. Posner, 988 So. 2d 128, [*887] 129 (Fla. 4th DCA 2008); Gentile v. Gentile, 565 So. 2d 820 (Fla. 4th DCA 1990). Posner compiled various cases to show what cumulative amounts can constitute an abuse of discretion: Based on the record evidence and findings as to his abilit…
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Posner v. Posner, 39 So. 3d 411 (Fla. 4th DCA 2010)…WARNER, J. After this court reversed the monetary awards in the prior final judgment of dissolution of marriage in Posner v. Posner, 988 So. 2d 128 (Fla. 4th DCA 2008), the trial court refashioned the awards. The husband appeals again, claiming that the court erred in imputing income to him from his parents, requiring the husband to pay the wife’s non-marital credit card liability, and allowing…
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
- Calderon v. Calderon, 730 So. 2d 400 (Fla. 5th DCA 1999)
- Banks Dixon Thomas v. Thomas, 418 So. 2d 316 (Fla. 4th DCA 1982)
- Decker v. Decker, 660 So. 2d 1162 (Fla. 4th DCA 1995)
- Ballesteros v. Ballesteros, 819 So. 2d 902 (Fla. 4th DCA 2002)
- Radziwon v. Radziwon, 710 So. 2d 748 (Fla. 4th DCA 1998)
- LAW Offs. OF Sharon P. Talbot, P.A. v. Savoie, 705 So. 2d 1072 (Fla. 4th DCA 1998)