NANCY MCGARRY, APPELLANT,
v.
PETER MCGARRY, APPELLEE

Fla. 2d DCA | 1971-04-02
No. 70-259
LILES, J., concurs., McNULTY, J., concurs specially, with opinion.
247 So. 2d 13 Florida District Court of Appeal, Second District (1971) Positive Treatment
Cited by 6 cases

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Synopsis

Nancy McGarry appeals a divorce judgment challenging the sufficiency and duration of alimony and child support awarded by the trial court. The appellate court affirmed the amounts awarded but modified the judgment to preserve the chancellor's authority to modify alimony provisions in the future based on changed circumstances.


Holding

The court affirmed the amounts of alimony and child support awarded, finding no abuse of discretion by the chancellor. However, the court modified the judgment to reserve to the chancellor the right to modify the alimony provisions in the future upon proper showing, as pure alimony cannot be allowed while simultaneously being cut off at a fixed future date.


Headnotes

[1] The amount of child support and alimony awarded is within the sound judicial discretion of the chancellor, based on the evidence presented and due consideration of the ne…

[2] Alimony awards should not be disturbed on appeal unless they represent an abuse of discretion or are patently erroneous on the record.

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Key Quotes

“It is well settled that the matters of allowance of alimony and child support are within the sound judicial discretion of the chancellor, based on the evidence presented, and due consideration of the needs of the recipients and the extent of the obligor's ability to meet these burdens.”

Establishes the standard of review for alimony and child support awards as discretionary judicial decisions reviewable only for abuse of discretion.

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Facts & Procedural History

Nancy and Peter McGarry were married for more than sixteen years and had two minor children (ages 15 and 13). Nancy was 37 years old with two years of…

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Opinion of the Court
PIERCE, Chief Judge.

PIERCE, Chief Judge.

Nancy McGarry, plaintiff below, appeals a final judgment of divorce, directing her *14assignments of error to the sufficiency of the support provision and to the duration of the award of alimony.

The final judgment granted Nancy an absolute divorce and awarded her the custody of the two minor children of the ages of fifteen and thirteen. It ordered Peter, defendant below, to pay her $210.00 per month for each child, and $500.00 per month as alimony for a period of two years. After two years Peter was ordered to pay Nancy an amount equal to her gross earnings on a monthly basis, not to exceed $600.00 or to be less than $200.00 per month. It ordered that all payments for alimony should terminate when Peter was no longer required to pay child support or when the younger child reached twenty-one years of age, and that all alimony payments should terminate upon the death or remarriage of Nancy. The judgment further granted Nancy and the children the exclusive use and occupancy of the home until Peter was no longer required to make support payments or until the younger child reached twenty-one, and that during such time it would be Nancy’s responsibility to bear all costs of mortgage payments, taxes and insurance on the residence. Nancy was given the exclusive use and possession of the Ford station wagon, and Peter was ordered to pay Nancy’s attorney and Court costs. The Court retained jurisdiction of the cause and the parties for the entry of any future orders respecting the care, custody and support of the children.

In our opinion, Nancy has failed to demonstrate reversible error as to the amount of alimony and child support awarded to her. The evidence regarding the needs of the wife and children was somewhat conflicting, but the record reveals that the Chancellor fully considered the testimony and determine the amount to which the wife was entitled.

It has long been the rule that the amount of child support and alimony is within the sound discretion of the Chancellor. Chaires v. Chaires, Fla.1864, 10 Fla. 308; Gregory v. Gregory, Fla.App.1968, 208 So.2d 483. As stated in Rogoff v. Rogoff, Fla.App.1959, 115 So.2d 456, 458:

“It is well settled that the matters of allowance of alimony and child support are within the sound judicial discretion of the chancellor, based on the evidence presented, and due consideration of the needs of the recipients and the extent of the obligor’s ability to meet these burdens. [Citations omitted] Such awards should not be disturbed unless they represent an abuse of discretion or are patently erroneous on the record; and an appellant carries the responsibility in an appellate court of clearly demonstrating such error.”

See Olsen v. Olsen, Fla.App.1965, 172 So.2d 276; Burnett v. Burnett, Fla.App.1967, 197 So.2d 854.

As to the termination of the alimony payments, it is settled law in this State that the Chancellor may consider the divorced wife’s ability to be employed and earn a living as a relevant material factor in determining her need for alimony. Kahn v. Kahn, Fla.1955, 78 So.2d 367; Heller v. Heller, Fla.App.1963, 151 So.2d 35; Whitehead v. Whitehead, Fla.App.1966, 189 So.2d 397; 10 Fla.Jur., Divorce and Annulment, § 166.

In the case sub judice the parties had been married more than sixteen years; the wife was thirty-seven years of age, and had two years of college education. She worked the first year of her marriage to the defendant, but had not worked since that time. At the time of the divorce she had been receiving psychiatric care for over five years. In his order denying Nancy’s motion for rehearing, the Chancellor stated that he felt that the alimony awarded Nancy was sufficient for her to re-establish herself, in that she might train herself for some sort of employment at a later time.

It is discretionary with the Chancellor to award a lump sum monetary settlement upon the wife even though payable in installments. But pure alimony as such can*15not be allowed and it be at the same time provided that it be cut off at a fixed date in the future. Schuberth v. Schuberth, Fla.1951, 52 So.2d 332; Pross v. Pross, Fla.1954, 72 So.2d 671; Katz v. Katz, Fla.App.1964, 159 So.2d 241; Ortiz v. Ortiz, Fla.App.1968, 211 So.2d 243. The judgment appealed should be modified to reserve to the Chancellor the right later upon a proper showing to modify 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.

McNULTY, Judge

(concurring specially).

I fully concur with the conclusions reached by my brother PIERCE in this case. That is to say, that the judgment herein be affirmed but modified to reserve to the chancellor the right later to modify the alimony provisions by extending the period for payment thereof. I would have been reluctant, however, to agree to such a modification had the portion of the judgment herein relating to alimony been entered pursuant to a stipulation or property settlement agreement expressly providing therefor in terms as outlined in the judgment. Accordingly, I do not consider either this case or Arthur v. Arthur,1 in which I concurred, as precedent for ordering such modification when it is patent from the record that the alimony award was made pursuant to a stipulation. Ex mero motu modification under these circumstances would deprive the agreeing husband from being heard in the premises beyond the extent of his agreement.

Concurrence
McNULTY, Judge

McNULTY, Judge

(concurring specially).

I fully concur with the conclusions reached by my brother PIERCE in this case. That is to say, that the judgment herein be affirmed but modified to reserve to the chancellor the right later to modify the alimony provisions by extending the period for payment thereof. I would have been reluctant, however, to agree to such a modification had the portion of the judgment herein relating to alimony been entered pursuant to a stipulation or property settlement agreement expressly providing therefor in terms as outlined in the judgment. Accordingly, I do not consider either this case or Arthur v. Arthur,1 in which I concurred, as precedent for ordering such modification when it is patent from the record that the alimony award was made pursuant to a stipulation. Ex mero motu modification under these circumstances would deprive the agreeing husband from being heard in the premises beyond the extent of his agreement.

. (Fla.App.1971) 243 So. 2d 8.


Cases With Similar Vibessemantic neighbors from the corpus


Citator

Cited By

  • Steinhauer v. Lossie S. Steinhauer, 252 So. 2d 825 (Fla. 4th DCA 1971)
    …ced wife’s ability to be employed and earn a living, the needs of the wife and the children and the husband’s capacity to meet such needs are all relevant material factors in determining the wife’s need for alimony. McGarry v. McGarry, Fla.App.1971, 247 So. 2d 13; Brown v. Brown, Fla.1965, 84 So. 2d 311; Platt v. Platt, Fla.App. 1958, 103 So. 2d 253; see also 10 Fla.Jur., Divorce, pp. 569-571. In the case sub judice, the court specifically found that the wife’s income and assets presently exceeded those of t…
  • Kennedy v. Kennedy, 303 So. 2d 629 (Fla. 1974)
    …essarily compel an award which maintains the pre-di-vorce standard of living for the wife. The wife’s age and potential for employment are relevant factors which may be considered in assessing her need for alimony. McGarry v. McGarry, Fla.App. 1971, 247 So. 2d 13. Lump sum alimony may be awarded to the wife instead of permanent periodic alimony where a lump sum award is justified for rehabilitative purposes. Calligarich v. Calligarich, supra. A lump sum award may be used, in other words, to tide the wife ove…
  • McREE v. McREE, 267 So. 2d 21 (Fla. 4th DCA 1972)
    …ecessarily compel an award which maintains the pre-divorce standard of living for the wife. The wife’s age and potential for employment are relevant factors which may be considered in assessing her need for alimony. McGarry v. McGarry, Fla.App.1971, 247 So. 2d 13. Lump sum alimony may be awarded to the wife instead of permanent periodic alimony where a lump sum award is justified for rehabilitative purposes. Calligarich v. Calligarich, supra. A lump sum award may be used, in other words, to tide the wife ove…

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