HARRIET S. ARTHUR, APPELLANT,
v.
MALCOLM B. ARTHUR, II, APPELLEE
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In this divorce appeal, the court affirmed a lump-sum alimony award of $7,500 but modified the decree to allow future modification of alimony provisions upon changed circumstances, rejecting the strict rule that lump-sum alimony is unmodifiable.
The court affirmed the lump-sum alimony award because the appellant herself requested it and the appellee did not challenge it. However, the court modified the decree to reserve to the chancellor the right to modify the alimony provisions upon proper showing of changed circumstances, rather than treating the lump-sum award as permanently unmodifiable.
[1] A party who prays for lump-sum alimony in a divorce action cannot later challenge the award of lump-sum alimony on appeal.
[2] A wife awarded lump-sum alimony is generally precluded from seeking modification of alimony based on changed circumstances.
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Join FLexlaw to unlock all legal intelligence“In view of the fact that the appellant prayed for lump-sum alimony and the appellee has not objected to the granting of the lump-sum award, we cannot hold that such award was erroneous even though under the facts of this case we might not, had we been the chancellor, have granted lump-sum alimony.”
Establishes that the court will not overturn an alimony award when the appealing party requested it and the other party did not challenge it.
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceThe parties were married for approximately 24 years and had four children. Appellant Harriet Arthur was 47 years old at the time of the divorce. In he…
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Appellant appeals that portion of the final decree of divorce concerning alimony and other provisions which need not be enumerated here. The granting of the divorce itself is not challenged in this appeal.
The parties were married for approximately 24 years, from which marriage there were four children born. Appellant is 47 years of age.
The appellant in her counterclaim for divorce prayed that she be awarded lump-sum alimony in such manner as the court may deem equitable in all the assets acquired by the parties during their marriage. She also prayed for support for herself and the minor children. The court awarded as alimony the lump sum of $7500 payable in equal monthly installments of $250 until paid in full.
Appellant now challenges the granting of the lump-sum alimony and takes the position that the lower court abused its discretion in denying her permanent periodic alimony. The appellee has not challenged the correctness of the trial court’s award of lump-sum alimony. In view of the fact that the appellant prayed for lump-sum alimony and the appellee has not objected to the granting of the lump-sum award, we cannot hold that such award was erroneous even though under the facts of this case we might not, had we been the chancellor, have granted lump-sum alimony.
It had been held that a wife who has been awarded lump-sum alimony is precluded from availing herself of the provisions of Section 61.14, Fla.Stats., F.S.A., relative to modification of alimony judgments in the event oh a change in circumstances. Gordon v. Gordon, Fla.App. 1967, 204 So.2d 734; Schreiber v. Schreiber, Fla.1968, 217 So.2d 301.
In Gordon, supra, the final decree was modified to reserve to the chancellor the right upon a proper showing under Florida Statute 61.14, F.S.A. to modify the alimony provisions of the final decree by providing for periodic payments in the future if it became necessary.
We are of the opinion that the facts and circumstances appearing from the record in this case warrant the modification of the final decree as was done in the Gordon case, supra.
The other points on appeal have been carefully considered and found to be without merit.
Therefore, the final decree is hereby affirmed as modified.
LILES, Acting C. J., and McNULTY, J., concur.
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McGARRY v. McGARRY, 247 So. 2d 13 (Fla. 2d DCA 1971)…ify the alimony provisions by extending the period for payment if the circumstances should later justify it or to otherwise alter the award as to the Chancellor at such subsequent time shall seem proper and equitable. Arthur v. Arthur, Fla.App.1971, 243 So. 2d 8; Gordon v. Gordon, Fla.App.1967, 204 So. 2d 734. The judgment appealed is Affirmed as modified. LILES, J., concurs. McNULTY, J., concurs specially, with opinion.…1 / 2
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Marguarite Marshall v. Marshall, 273 So. 2d 107 (Fla. 3d DCA 1973)…ture if such be applied for and properly allowable under § 61.14, Fla.Stat., F.S.A. Poe v. Poe, Fla.App.1972, 263 So. 2d 644; Melton v. Melton, Fla.App.1971, 251 So. 2d 705; Reed v. Reed, Fla.App.1971, 244 So. 2d 449; Arthur v. Arthur, Fla.App.1971, 243 So. 2d 8; Gordon v. Gordon, Fla.App.1967, 204 So. 2d 734. We also note that this error was noted by the Chancellor at the hearing on appellant’s motion for a new trial. However, the late Judge John J. Kehoe was prevented from modifying his final order, as he…
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Weinman v. Weinman, 310 So. 2d 442 (Fla. 3d DCA 1975)…ent is hereby modified to include such a reservation of jurisdiction. Schiff v. Schiff, Fla.App.1960, 123 So. 2d 295; Gordon v. Gordon, Fla.App.1968, 204 So. 2d 734; Barfield v. Barfield, Fla.App.1969, 226 So. 2d 132; Arthur v. Arthur, Fla.App.1971, 243 So. 2d 8; Greene v. Greene, Fla.App.1972, 256 So. 2d 258. The court did not abuse discretion in limiting the time of possession of the residence by the appellant, but we hold it was error to direct thereafter the sale of the jointly owned property. There we…
Authorities Cited
- O'Dell v. Carlton B. O'Dell, 204 So. 2d 734 (Fla. 2d DCA 1967)
- Schreiber v. Schreiber, 217 So. 2d 301 (Fla. 1968)