MELVYNE WAHNISH SOMMERS, APPELLANT,
v.
ALBERT J. SOMMERS, APPELLEE
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In this second appeal of a divorce case, the Florida District Court of Appeal found that the trial court abused its discretion by awarding only $200 monthly alimony when the wife's documented needs were $940 monthly and the husband had substantial financial ability (worth over $250,000). The court modified the award to $600 monthly, establishing that alimony must allow the former wife to maintain a standard of living commensurate with that during the marriage when the husband can afford it.
The award of $200 monthly alimony constituted an abuse of discretion. The court modified the award to $600 monthly, affirming that a divorced wife is entitled to alimony permitting her to live in a manner commensurate with that provided during marriage when the husband has the ability to pay.
“a divorced wife is entitled to alimony which will permit her to live in a manner commensurate with that provided by her husband during coverture, if he has the ability to pay”
States the controlling legal principle for alimony awards that governs the case
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Join FLexlaw to unlock all legal intelligenceMelvyne Wahnish Sommers and Albert J. Sommers were divorced. The husband was worth in excess of $250,000 with a substantial portion in liquid assets. …
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This case has been before this court previously. See: Sommers v. Sommers, Fla.App.1964, 169 So.2d 496, wherein we affirmed a decree of divorce but reversed that portion awarding a lump sum alimony as being inadequate, and returned the matter for further determination by the chancellor, indicating that the alimony should be increased either by a larger lump sum payment or by periodic installments. Thereafter, the matter came on for hearing subsequent to the entry of the mandate by this court, and the chancellor amended his final decree by eliminating the provision for $18,000.00 lump sum alimony and providing $200.00 a month as a periodic award of permanent alimony. This appeal has ensued, and the principal point urged for reversal is the inadequacy of the $200.00 monthly award, in view of the uncontra-dicted evidence that the needs of the wife were $940.00 a month and a previous finding by this court that the husband had the financial ability to respond in view of the fact that he was worth in excess of $250,-000.00, a substantial portion of which was in liquid assets.
We find, on the status of the record, that the chancellor abused his discretion in the award. The accepted principles are that a divorced wife is entitled to alimony which will permit her to live in a manner commensurate with that provided by her husband during coverture, if he has the ability to pay. See: Klein v. Klein, Fla.App.1960, 122 So.2d 205; Peteler v. Peteler, Fla.App.1962, 145 So.2d 291; 27A C.J.S. Divorce § 236(1). There is no question of his ability to pay in this case; the evidence is uncontradicted as to the wife’s needs and her listing of such needs should not have been ignored. See: Bergh v. Bergh, Fla.App.1964, 160 So.2d 145.
Normally, it is the function of a chancellor to fix the amount of alimony in the exercise of his discretion, and the function of an appellate court is only to deter*746mine whether or not this discretion was abused under the circumstances as reflected by the record. However, because of the recent death of the chancellor in this cause, this court is as able if not more so than the original chancellor’s successor to fix the amount of alimony from the record.
So, therefore, we affirm the chancellor’s decree finding that the wife was entitled to periodic alimony, but modify the award from $200.00 a month to $600.00 a month. In all other respects, the order here under review be and the same is hereby affirmed, except as modified by the increase.
Affirmed, as modified.
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Firestone v. Firestone, 263 So. 2d 223 (Fla. 1972)…by the parties to the marriage. Chastain v. Chastain, Fla.1954, 73 So. 2d 66; Schiff v. Schiff, Fla.1951, 54 So. 2d 36; Klein v. Klein, Fla.App.1960, 122 So. 2d 205; Peteler v. Peteler, Fla.App.1962, 145 So. 2d 291; Sommers v. Sommers, Fla.App.1966, 183 So. 2d 744; Kaufman v. Kaufman, Fla.1953, 63 So. 2d 196; Astor v. Astor, Fla.1956, 89 So. 2d 645. But see also: Kahn v. Kahn, Fla., 78 So. 2d 367, for a limitation on the amount of alimony award. Sub judice, the husband’s answer to his wife’s charges admitted…
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Brown v. Brown, 300 So. 2d 719 (Fla. 1st DCA 1974)…h. “(2) In determining a proper award of alimony, the court may consider any factor necessary to do equity and justice between the parties.” [Emphasis supplied.] In 1966, our sister court, the Third District Court of Appeal, in Sommers v. Sommers, 183 So. 2d 744 (Fla.App. 3rd 1966), 6 clearly stated the rule that prevailed as to awarding alimony prior to the dissolution of marriage act in 1971 (Chapter 71-241, Laws of 1971) as: “The accepted principles are that a divorced wife is entitled to alimony which…
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Sisson v. Sisson, 336 So. 2d 1129 (Fla. 1976)…72); Baker v. Baker, 299 So. 2d 138 (Fla.App.3d 1974); Schultz v. Schultz, [*1130] 290 So. 2d 146 (Fla.App.2d 1974); Langston v. Langston, 257 So. 2d 625 (Fla.App.3d 1972); Zohlman v. Zohlman, 235 So. 2d 532 (Fla.App.3d 1970) and Sommers v. Sommers, 183 So. 2d 744 (Fla.App.3d 1966). We grant certiorari and quash the decision below, with directions that the judgment of the trial court be reinstated. Application of the rules for determining alimony is primarily the responsibility of the trial court, which is a…1 / 2
Previewing 3 of 10 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Lily Klein v. Klein, 122 So. 2d 205 (Fla. 3d DCA 1960)
- Peteler v. Peteler, 145 So. 2d 291 (Fla. 3d DCA 1962)
- Bergh v. Bergh, 160 So. 2d 145 (Fla. 1st DCA 1964)
- O. Hoke Roberts et ux. v. John J. Knoll et ux., 169 So. 2d 496 (Fla. 2d DCA 1964)