EMILY LORAINE MILANDER, APPELLANT,
v.
HENRY A. MILANDER AND HENRY ROBERT MILANDER, A MINOR, APPELLEES
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In this divorce case, the appellant sought to increase her alimony award by having the trial court consider a substantial family trust as part of the appellee's capital assets. The appellate court affirmed the trial court's alimony award, holding that the appellant failed to establish that the trust corpus belonged to the appellee and thus was a proper asset to consider.
The court affirmed the trial court's alimony award, holding that while the nature and extent of a husband's capital assets are relevant to determining his ability to pay, the appellant failed to establish that the trust corpus constituted a capital asset belonging to the appellee, and therefore the trial court did not abuse its discretion.
“It is well established that the awarding of alimony and the amount thereof are matters within the discretion of the chancellor. That discretion will be exercised according to the circumstances of the case upon settled principles as to the needs of the wife and the ability of the husband to pay.”
Establishes the legal standard for review of alimony awards and the chancellor's discretion
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Join FLexlaw to unlock all legal intelligenceThe parties were married in 1928 and resided in Dade County with one son born of the marriage. In 1951, the son contracted rheumatic heart disease. In…
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This cause was initiated upon appellant’s complaint for divorce. The parties were married in 1928, and have resided in Dade County since that time. One child, a son, was born of the marriage. In 1951, while he was still an infant, the child was stricken with rheumatic fever, as a result of which he has suffered a condition known as a rheumatic heart. In order to provide for the future security of the child, the parties established a trust in 1956, naming the son as beneficiary and appellee as trustee. In order to provide a trust res, jointly owned property was transferred to the appellee as trustee. At the time of its creation, the trust was valued at approximately $2,000.00. Since 1956, appellee has invested the trust assets and continued to donate certain of his own property to the trust. The estimated worth of the trust at the time of the trial was between $150,000.00 and $250,000.00.
Appellant was granted a divorce. At trial, she offered evidence that her living *877expenses were a minimum of $1,315.00 per month. The chancellor awarded appellant lump sum alimony of $3,000.00 cash, a 1964 . Lincoln Continental automobile, and two parcels of real property in Dade County, as well as periodic alimony of $420.00 per month. In the same order, a separate suit filed by appellant as an attack upon the trust was dismissed. The chancellor reserved ruling upon the issue of custody of the child.
By this appeal, appellant seeks review of the final decree in regard to the adequacy of the amounts awarded as alimony. It is appellant’s contention that the chancellor erred in refusing to consider the trust corpus as an asset of the appellee’s estate in determining the amount to be awarded as alimony, and that, notwithstanding this reduction in the value of the appellee’s estate, the chancellor abused his discretion in awarding only $420.00 per month in view of the evidence presented by appellant at trial.
It is well established that the awarding of alimony and the amount thereof are matters within the discretion of the chancellor. That discretion will be exercised according to the circumstances of the case upon settled principles as to the needs of the wife and the ability of the husband to pay. In order to secure a reversal of any portion of the final decree dealing with alimony, the appellant must carry the burden of showing an abuse of discretion. Pross v. Pross, Fla.1954, 72 So.2d 671; Smith v. Smith, Fla.App.1965, 177 So.2d 351; Putman v. Putman, Fla.App.1963, 154 So.2d 717; May v. May, Fla.App.1962, 142 So.2d 110; Harrison v. Harrison, Fla.App. 1959, 115 So.2d 709. Appellant is correct in her assertion that the nature and extent of the husband’s capital assets are factors which enter into a determination of the ability of the husband to pay. Chastain v. Chastain, Fla.1954, 73 So.2d 66; Fleming v. Fleming, Fla.App.1965, 177 So.2d 384; Gaer v. Gaer, Fla.App. 1964, 168 So.2d 789. However, we are of the opinion that the appellant has failed to establish the one fact which must of necessity constitute the basis of her contention, that is that the trust corpus is a capital asset belonging to the appellee.
The decree appealed contains the following statement:
“ * * * Further, the plaintiff, Emily Loraine Milander has not shown that she is entitled to have the subject trust dissolved or disturbed by virtue of the alleged misuse of the trust.”
Appellant relies almost exclusively upon the above language to sustain her contention. But, that statement in no way reflects a refusal on the part of the chancellor to consider the value of the trust corpus as an .indication of the appellee’s ability to pay, and the record is otherwise silent upon the subject. Having found that appellant is unable to substantiate her contention, we deem it unnecessary to rule upon the substantive validity of that contention.
We find no abuse of discretion; therefore, the decree appealed is affirmed.
Affirmed.
Cases With Similar Vibessemantic neighbors from the corpus
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Krogen v. Krogen, 320 So. 2d 483 (Fla. 3d DCA 1975)…al, the appellant contests several portions of a final judgment dissolving his marriage. We find no merit to any of his contentions relating to custody, lump sum alimony, awarding of country club membership, etc. Milander v. Milander, Fla.App.1968, 208 So. 2d 876; Goldblatt v. Goldblatt, Fla.App.1973, 277 So. 2d 34; Maroun v. Maroun, Fla.App.1973, 277 So. 2d 572; Ebaugh v. Ebaugh, Fla.App.1973, 282 So. 2d 14; Anderson v. Anderson, Fla.App.1974, 289 So. 2d 463; Linares v. Linares, Fla.App. 1974, 292 So. 2d 63…
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Maroun v. Ing-Marie Maroun, 277 So. 2d 572 (Fla. 3d DCA 1973)…is well established that in order to obtain a reversal of any portion of a final dissolution of a marriage judgment dealing with alimony, the appellant must carry the burden of showing an abuse of discretion. See Milander v. Milander, Fla.App.1968, 208 So. 2d 876 and cases cited therein. We find that appellant-husband has failed to carry his burden. Accordingly, that part of the judgment awarding lump sum alimony and periodic alimony and child support is affirmed. On cross-appeal petitioner-wife contends it…
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Jayne L. Barfield v. Barfield, 226 So. 2d 132 (Fla. 3d DCA 1969)…the homestead property as lump sum alimony, and in lieu of any other alimony, we do not find any error present. There is no evidence before us of a palpable abuse of discretion on behalf of the chancellor. E. g., Milander v. Milander, Fla.App.1968, 208 So. 2d 876; Burnett v. Burnett, Fla.App. 1967, 197 So. 2d 854. However, we do find a deficiency in the corrected order in that the chancellor failed to reserve jurisdiction over the cause in the event that the appellant applies in the future for financial ass…
Previewing 3 of 8 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)
- Pross v. Pross, 72 So. 2d 671 (Fla. 1954)
- Putman v. Putman, 154 So. 2d 717 (Fla. 3d DCA 1963)
- Gaer v. Gaer, 168 So. 2d 789 (Fla. 3d DCA 1964)
- Claudine Harrison v. Angus D. Harrison, 115 So. 2d 709 (Fla. 3d DCA 1959)
- Fleming v. Fleming, 177 So. 2d 384 (Fla. 3d DCA 1965)
- Kennedy v. Ford R. Vandine, 177 So. 2d 384 (Fla. 3d DCA 1965)
- MAY v. MAY, 142 So. 2d 110 (Fla. 1st DCA 1962)
- Smith v. Smith, 177 So. 2d 351 (Fla. 2d DCA 1965)