MABEL MOON BAILEY, APPELLANT,
v.
GEORGE THOMAS BAILEY III, APPELLEE
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In this divorce case, the Florida District Court of Appeal affirmed the trial court's finding that the husband proved extreme cruelty and reversed the property transfer provision that divested the husband of his interest in the marital residence while also awarding him alimony installments, holding that a husband's property interest cannot be transferred as lump-sum alimony when installment alimony is also awarded.
The court affirmed the divorce decree and the alimony and child support awards but reversed the property transfer provision, holding that a husband's property interest may not be granted as lump-sum alimony when alimony in installments is also awarded.
“A husband's interest in property may be granted to his wife as lump sum alimony, but not where alimony in installments also is awarded.”
Establishes the controlling legal principle that invalidates the trial court's property transfer provision.
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Join FLexlaw to unlock all legal intelligenceGeorge Thomas Bailey III sued his wife, Mildred Moon Bailey, for divorce on grounds of extreme cruelty. The trial court found the husband guilty of ex…
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The appellee, George Thomas Bailey III, sued the appellant, his wife Mildred Moon Bailey, for divorce on the ground of extreme cruelty (§ 65.04(4), Fla.Stat., F.S. A.). The wife answered and, charging the husband with extreme cruelty, counterclaimed for alimony without divorce (§ 65.09, Fla.Stat., F.S.A.), and for custody and support of the children.
The cause was tried before the chancellor. The husband was granted a divorce. The wife’s counterclaim for separate maintenance was denied, but she was awarded custody of the children, child support, and alimony.
As a lump sum award, the decree transferred to the wife the undivided interest of the husband in their residence valued at $60,000, which they owned as tenants by the entireties. The decree also required the husband to pay alimony in installments of $500 per month. Child support was fixed at $75 per month for each of the four children. The defendant’s attorney fees were allowed, and the court costs were charged to the plaintiff.
The wife appealed, contending that the rulings which found that she, and not her husband, was guilty of extreme cruelty were contrary to and not supported by the evidence. The chancellor reached his decision on conflicting testimony, and our study of the record reveals there was ample competent evidence to sustain him. No useful purpose would be served by a discussion of the evidence. Appellant also contended the amounts allowed for alimony and child support were “insufficient and contrary to the evidence.” Though the allowances were somewhat less than appellant represented she required, the fixing of such amounts was discretionary, and abuse of discretion is not shown.1
By a cross assignment of error the husband challenged the provision of the decree which divested him of his interest in the residence, and transferred it to the wife. Having owned it as tenants by the entireties, the parties became equal owners thereof as tenants in common upon entry of the decree,2 and they were entitled to have the property so continue.3
A husband’s interest in property may be granted to his wife as lump sum alimony,4 but not where alimony in installments also is awarded.5 The chancellor in his decree made it clear that one purpose in granting the wife the husband’s interest in the property was for her and the children to use it as a home and thus to aid in their support and maintenance. On remand, provision should be made for continued use of the premises by the wife and children, together with such order as may appear appropriate to the chancellor to assure the upkeep of the property by the husband, and to restrict alienation by the *167parties of their respective interests in the property while so used.
Paragraph No. 3 in the final decree, which provided for transfer to the wife of the husband’s interest in the furnished residence property therein described, is reversed. In other respects the decree is affirmed; and the cause is remanded for further proceedings not inconsistent herewith.
Affirmed in part and reversed in part and remanded.
PEARSON, Acting Chief Judge, CARROLL, CHAS., J., and LOPEZ, AQUILINO, Jr., Associate Judge, concur.
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Citator
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Harder v. Harder, 264 So. 2d 476 (Fla. 3d DCA 1972)…Fla.1954, 68 So. 2d 821; Bildner v. Bildner, Fla.App.1969, 219 So. 2d 749; Webb v. Webb, Fla.App.1963, 156 So. 2d 698; Gonzalez v. Gonzalez, Fla.App.1963, 156 So. 2d 206; Bergh v. Bergh, Fla.App.1961, 127 So. 2d 481; Bailey v. Bailey, Fla.App.1961, 126 So. 2d 165; Kilian v. Kilian, Fla.App.1957, 97 So. 2d 201. The final judgment is affirmed except for that provision in the final judgment concerning the wife’s conveyance to the husband of all of her right, title and interest in and to all her remaining prope…
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Bailey v. Bailey, 204 So. 2d 531 (Fla. 3d DCA 1967)…1960 divorce decree between the parties was remanded by this court because the chancellor had divested the husband of his interest in the marital home and in addition had awarded the wife alimony in installment payments. Bailey v. Bailey, Fla.App., 126 So. 2d 165. Upon remand the trial court was instructed to make “such order as may appear appropriate to the chancellor to assure the upkeep of the property by the husband.” Pursuant to the remand, the court entered a “Decree on Mandate” on June 29, 1961, whe…
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Bildner v. Bildner, 219 So. 2d 749 (Fla. 3d DCA 1969)…that upon the granting of a divorce the court may award the husband’s interest in such property to the wife as lump sum alimony. Reid v. Reid, Fla.1954, 68 So. 2d 821; Killian v. Killian, Fla. App.1957, 97 So. 2d 201; Bailey v. Bailey, Fla.App.1961, 126 So. 2d 165, 166; Bergh v. Bergh, Fla.App.1961, 127 So. 2d 481, 487; Gonzalez v. Gonzalez, Fla.App.1963, 156 So. 2d 206, 207; Webb v. Webb, Fla.App. 1963, 156 So. 2d 698, 699. [6] If the amended decree in this case had designated the award of $40,000 cash as t…
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 (17 total)
- Ashleigh M. Moye v. Moye (Fla. 1st DCA 2021)
- Valentine v. Valentine, 45 So. 2d 885 (Fla. 1950)
- Latta v. Parker A. Latta, 121 So. 2d 42 (Fla. 3d DCA 1960)
- Reid v. Reid, 68 So. 2d 821 (Fla. 1953)
- Benson v. Benson, 102 So. 2d 748 (Fla. 3d DCA 1958)
- Eakin v. Eakin, 99 So. 2d 854 (Fla. 1958)
- Astor v. Astor, 89 So. 2d 645 (Fla. 1956)
- Rambo v. Mayo, 65 So. 2d 754 (Fla. 1953)
- Bezanilla v. Bezanilla, 65 So. 2d 754 (Fla. 1953)
- Cocalis v. Cocalis, 103 So. 2d 230 (Fla. 3d DCA 1958)