FREDERICK SEMON BOGGESS, APPELLANT,
v.
MARGARET PEARL BOGGESS, APPELLEE
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A former husband appealed a trial court's reduction of his permanent periodic alimony obligation from $3,000 to $780.50 per month, challenging both the denial of sanctions for his ex-wife's discovery violations and the alimony calculation methodology. The appellate court affirmed the denial of sanctions but reversed and remanded on the alimony calculation, finding the court improperly included annuity principal payments as income and failed to include the ex-wife's investment income.
The court held that the trial court did not abuse its discretion in denying sanctions for discovery violations, as reasonable people could differ on the propriety of such drastic relief. However, the court erred in calculating the alimony amount by potentially including annuity principal payments as income and imputing reverse mortgage income to Mrs. Boggess while excluding her actual investment income.
[1] A trial court's discretion in striking pleadings for discovery violations is reviewed for abuse of discretion.
[2] A trial court abuses its discretion when its discretionary ruling is unreasonable and reasonable persons could differ as to its propriety.
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Join FLexlaw to unlock all legal intelligence“The modification award is therefore reversed and this matter remanded for redetermination of the amount of permanent periodic alimony henceforth to be paid by Mr. Boggess. Such determination to include consideration of only income received by both parties, and exclude principal payments received by either party”
Establishes the core holding that only actual income (not principal) should be considered in alimony calculations
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Join FLexlaw to unlock all legal intelligenceFrederick and Margaret Boggess were married for 43 years. The trial court modified Mr. Boggess's permanent periodic alimony obligation from $3,000 to …
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Former husband Frederick Semon Bog-gess appeals from an order decreasing his obligation to pay permanent periodic alimony to his former wife of forty three years from $3,000 to $780.50 per month claiming that the trial court erred (1) in refusing to sanction Mrs. Boggess for discovery violations by striking her pleadings and terminating his obligation to pay alimony altogether, and (2) in the manner in which it calculated the reduced alimony that he henceforth would be obligated to pay. We find no merit in the first contention. See Neal v. Neal, 636 So.2d 810, 812 (Fla. 1st DCA 1994) (“The standard of review for orders granting or denying dismissal or striking all or a part of a party’s pleadings is whether the trial court abused its discretion.”); see also Girtman v. Girtman, 693 So.2d 631, 632 (Fla. 2d DCA 1997) (“In reviewing a true discretionary act, the appellate court must fully recognize the superior vantage point of the trial judge and should apply the ‘reasonableness’ test to determine whether the trial judge abused his discretion. If reasonable men could differ as to the propriety of the action taken by the trial court, then the action is not unreasonable and there can be no finding of an abuse of discretion. The discretionary ruling of the trial judge should be disturbed only when his decision fails to satisfy this test of reasonableness.” (quoting Canakaris v. Canakaris, 382 So.2d 1197, 1203 (Fla.1980))).
We do, however, agree that the court below erred in calculating the amount of permanent periodic alimony to be paid to Mrs. Boggess, because that calculation may have improperly included as “income” for Mr. Boggess, annuity payments, if they were payments from principal, and also because the calculation failed to include in Mrs. Boggess’ “income” sums she was receiving from some or all of her investments.
The modification award is therefore reversed and this matter remanded for redetermination of the amount of permanent periodic alimony henceforth to be paid by Mr. Boggess. Such determination to include consideration of only income *117received by both parties, and exclude principal payments received by either party, ■with no amounts to be imputed to either party for purported “income” from reverse mortgages.1 Finally, any modification ordered herein shall take effect upon entry of the recalculated award.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Authorities Cited
- Canakaris v. Canakaris, 382 So. 2d 1197 (Fla. 1980)
- DE Cenzo v. de Cenzo, 433 So. 2d 1316 (Fla. 3d DCA 1983)
- Delphia Neal v. Evans Clay Neal, 636 So. 2d 810 (Fla. 1st DCA 1994)
- Collazo v. Hupert, 693 So. 2d 631 (Fla. 3d DCA 1997)
- Girtman v. Iva Hauck Girtman, 693 So. 2d 631 (Fla. 2d DCA 1997)