LINDA AUFSEHER, APPELLANT,
v.
SEYMOUR J. AUFSEHER, APPELLEE
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Linda Aufseher appeals a divorce decree granting her husband a divorce on grounds of extreme cruelty and awarding her a lump sum alimony payment instead of periodic support. The court affirms the divorce but reverses the alimony award, finding an abuse of discretion in the trial court's lump sum award without special equities justifying such an arrangement.
The court affirmed the divorce on grounds of extreme cruelty but reversed the lump sum alimony award as an abuse of discretion. The court held that res judicata is an affirmative defense that is waived if not pleaded in the answer, and that absent special equities, periodic alimony payments are the better practice.
“Res judicata and estoppel by judgment are affirmative defenses which are waived if not pleaded in the answer.”
Establishes that Linda waived her res judicata defense by failing to plead it in her answer to the extreme cruelty charge.
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Join FLexlaw to unlock all legal intelligenceThe parties were previously separated under a New Jersey separate maintenance decree providing Linda $40/week for herself and $15/week per child. Seym…
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Linda Aufseher appeals from a final decree granting the husband, Seymour J. Aufseher, a divorce on the ground of extreme cruelty.
The parties had been separated pursuant to a separate maintenance decree entered by a court of the State of New Jersey under which Linda received forty dollars per week for herself and fifteen dollars a week for each of their two children.
*869Seymour moved to Florida and sued Linda for divorce alleging extreme cruelty and desertion. She denied these allegations and raised res judicata as an affirmative defense to the charge of desertion; but not to the charge of extreme cruelty. She attempts to raise the defense of res judicata or estoppel by judgment to the charge of extreme cruelty for the first time on appeal. This she may not do. Res judicata and estoppel by judgment are affirmative defenses which are waived if not pleaded in the'answer. See 19 Fla.Jur. Judgments § 167; Nunez v. Alford, Fla.App.1960, 117 So.2d 208; Fla.R.Civ.P. 1.140(h), 30 F.S.A.
The trial court awarded Linda Three Thousand Dollars as lump sum alimony and twenty dollars per week for support of each of the two minors. She says that this was error because neither party prayed for a lump sum alimony award and she has' shown a need for periodic alimony payments from her former husband. We note an order permitting' Linda to receive the lump sum award under F.A.R. 3.8(b), 32 F.S.A. without prejudice to raise an issue on appeal as to the “correctness of the terms and provisions of the original decree.” Cf. Schreiber v. Schreiber, Supreme Court of Florida, opinion filed December 17, 1968, 217 So.2d 301.
There is no question that the trial court had the authority to order lump sum alimony in its discretion. Fla.Stat. § 65.08, F.S.A.
The question here is, was there an abuse of this discretion? The criteria-for awarding lump sum alimony are stated in Yandell v. Yandell, Fla.1949, 39 So.2d 554, and the better practice is for periodic payments absent some special equity. An award and acceptance of lump sum alimony may be “it” for the wife since it has been said in. such cases “a wife is without the right to avail herself of the provisions of § 65.16, Fla.Stat., F.S.A., relative to modification in the event of change of circumstances.” Gordon v. Gordon, Fla.App.1967, 204 So.2d 734.
There were no special equities proven herein and the criteria of Yandell, supra., were not met. We find an abuse of .discretion in the lump sum alimony award and remand solely for the taking of testimony and the entry of an order granting periodic payments of alimony to the wife in such amounts as are equitable and just. The husband shall receive proper credit for the lump sum award previously granted, if already paid to the wife.
It is so ordered.
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Keller v. Belcher, 256 So. 2d 561 (Fla. 3d DCA 1971)…nal under the final decree rendered July 14, 1969 and the lump sum alimony required to be paid under that decree was not subject to termination upon her remarriage. See Yandell v. Yandell, Fla.1949, 39 So. 2d 554; Aufseher v. Aufseher, Fla.App.1969, 217 So. 2d 868; and 24 Am.Jur.2d Divorce and Separation § 614. Henry’s argument that the trial judge was required, under Rule 1.540, F.R.C.P., to relieve him from the final decree which had been entered as a result of oversight or omission also fails for another…
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Lovie Royal v. Royal, 263 So. 2d 277 (Fla. 3d DCA 1972)…participation in the act of kindness to the aged benefactor cannot be said to constitute an equity in the inheritance which resulted from long and faithful service. See Yandell v. Yandell, Fla.1949, 39 So. 2d 554; Aufseher v. Aufseher, Fla.App.1969, 217 So. 2d 868. We do hold that in view of the value of the assets of the appellee and the established needs of the appellant, the amount of the alimony allowed was not proper under the established guidelines. An appellate court will not interfere in the determin…
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Arie Lionel Bosem v. Bosem, 269 So. 2d 758 (Fla. 3d DCA 1972)…circumstances, and since adequate alimony and support payments have been allowed, we hold that it was an abuse of discretion to award lump sum alimony in this case. Cf. Yandell v. Yandell, Fla.1949, 39 So. 2d 554; Aufseher v. Aufseher, Fla.App.1969, 217 So. 2d 868. Appellant urges that the provisions for the payment of medical expenses, and for the payment of “all private and religious schooling” for the children are in effect an “open-end” lump sum award. We do not accept this view, but hold (as the trial c…
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
- Ashleigh M. Moye v. Moye (Fla. 1st DCA 2021)
- O'Dell v. Carlton B. O'Dell, 204 So. 2d 734 (Fla. 2d DCA 1967)
- Nunez v. Alford, 117 So. 2d 208 (Fla. 2d DCA 1960)
- Schreiber v. Schreiber, 217 So. 2d 301 (Fla. 1968)