SARAH SIMON, APPELLANT,
v.
VICTOR SIMON, APPELLEE
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Wife appealed a post-decree order reducing her alimony from $200 to $50 per week. The Florida District Court of Appeal reversed, holding that the trial court erred by considering only the husband's income and ignoring his substantial non-income-producing assets when determining his ability to pay alimony.
A trial court must consider both income and capital assets—including non-income-producing property—when determining an obligor's ability to pay alimony. Income alone is not the sole test for determining ability to pay, and the manner in which assets are titled is not necessarily controlling in this analysis.
“Income alone is not necessarily the test in determining ability to pay. As pointed out by the Chancellor in the final decree awarding divorce and fixing alimony, 'one must consider the nature of his capital assets, as well as his income'.”
Establishes the legal principle that capital assets must be considered alongside income when determining ability to pay alimony.
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Join FLexlaw to unlock all legal intelligenceThe husband petitioned to modify an alimony decree, seeking reduction from $200 per week to $50 per week based on lessened income. The trial court gra…
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On this interlocutory appeal from a post decree order reducing alimony from $200 a week to $50 a week, the wife contends the court was in error in granting a reduction on considering only the husband’s lessened income without giving consideration to the sizeable assets and estate of the husband. The record clearly supports appellant’s contention, by disclosing that the chancellor adopted the view that the husband’s non-income producing property and assets were not factors to be taken into consideration. In so ruling the learned chancellor was in error.
In Chastain v. Chastain, Fla.1954, 73 So. 2d 66, 68, which is cited and relied on by the appellant, the Supreme Court said:
« * * * A final decree of divorce awarding alimony should not be modified as to alimony without a strong showing that the husband’s ability to pay has depreciated. The burden is upon the complaining party to make this strong showing. Income alone is not necessarily the test in determining ability to pay. As pointed out by the Chancellor in the final decree awarding divorce and fixing alimony, ‘one must consider the nature of his capital assets, as well as his income’.”
See also Terry v. Terry, Fla.App.1961, 126 So.2d 890, 892; Howard v. Howard, Fla. App.1960, 118 So.2d 90, 94; Platt v. Platt, Fla.App.1958, 103 So.2d 253, 255. In the Howard case the court said:
“ * * * In addition to income, consideration must also be given to the extent and value of the husband’s capital assets. The manner in which title to the husband’s assets is held is not necessarily controlling in determining his ability to pay.”
As the cause must be remanded for further hearing before the chancellor on the husband’s petition for modification, at which due consideration should be given *614to the value of the assets of the husband in conformity to the pronouncements of law in that respect in the cases cited above, it is neither necessary nor proper that we should enter into a discussion of the material facts. Accordingly, the order appealed from is reversed and the cause remanded for further proceedings not inconsistent herewith.
Reversed and remanded.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Simon v. Simon, 155 So. 2d 849 (Fla. 3d DCA 1963)
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Gaer v. Gaer, 168 So. 2d 789 (Fla. 3d DCA 1964)…in v. Chastain, Fla.1954, 73 So. 2d 66; Mack v. Mack, Fla.App.1959, 112 So. 2d 861. . Heller v. Heller, Fla.App.1963, 151 So. 2d 35. . Welsh v. Welsh, 160 Fla. 380, 35 So. 2d 6; 10 Fla.Jur., Divorce § 167. . Compare, Simon v. Simon, Fla.App.1962, 137 So. 2d 613. . Pross v. Pross, Fla.1954, 72 So. 2d 671; Lindley v. Lindley, Fla.1955, 84 So. 2d 17. . Kanter v. Kanter, Fla.1949, 38 So. 2d 685; Rogoff v. Rogoff, Fla.App.1959, 115 So. 2d 456.…
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Fleming v. Fleming, 177 So. 2d 384 (Fla. 3d DCA 1965)…ily the basis upon which an award for alimony may be fixed. In addition to income, consideration must also be given to the extent and value of the husband’s capital assets. Chastain v. Chastain, Fla. 1954, 73 So. 2d 66; Simon v. Simon, Fla.App.1962, 137 So. 2d 613; Terry v. Terry, Fla.App.1961, 126 So. 2d 890; Dworkis v. Dworkis, Fla. App.1959, 111 So. 2d 70, 72 A.L.R.2d 1189. If the income, or capital assets, of the husband have increased since the date of the final decree; and if there is a need and necess…
Previewing 3 of 6 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Chastain v. Chastain, 73 So. 2d 66 (Fla. 1954)
- Platt v. Platt, 103 So. 2d 253 (Fla. 1st DCA 1958)
- Howard v. Howard, 118 So. 2d 90 (Fla. 1st DCA 1960)
- Terry v. Gertrude S. Terry, 126 So. 2d 890 (Fla. 2d DCA 1961)
- Simon v. Simon, 123 So. 2d 41 (Fla. 3d DCA 1960)