SAMUEL S. THOMAS, APPELLANT,
v.
EDDIE HUTTO THOMAS, APPELLEE
AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.
In this divorce appeal, the Florida Third District Court of Appeal reversed the trial court's award of lump sum alimony to the wife (conveying the husband's interest in the marital home) for lack of showing of necessity and ability to pay, modified the requirement for private school tuition to permit only tuition-free schooling, and remanded for reconsideration of other financial awards that may have been influenced by the erroneous lump sum alimony.
The court reversed the lump sum alimony award for failure to show both the wife's necessity and the husband's ability to pay. The court modified the private school requirement to permit only tuition-free schooling based on the husband's prior affiliation with the school, and remanded for reconsideration of other financial awards that may have been influenced by the erroneous lump sum award.
[1] An award of lump sum alimony is improper without a showing of necessity on the part of the recipient spouse and the ability to pay on the part of the payor spouse.
[2] A requirement for a party to provide private schooling for a child may be limited to situations where the schooling is provided on a gratis basis due to a prior affiliati…
Previewing 2 of 3 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“There is no positive showing in this record of necessity on the part of wife and ability of the husband to pay, necessary to sustain the award of lump sum alimony appealed herein.”
Establishes the court's rationale for reversing the lump sum alimony award—absence of required showing of both necessity and ability to pay.
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' nine-year marriage produced one child born in 1971. The trial court awarded the wife custody of the child and required the husband to pay…
The full statement of facts, procedural history, and disposition for this case are member content.
Join FLexlaw to unlock all legal intelligence© FLexlaw, Inc. — AI-generated enrichments are proprietary. All rights reserved.
Explore caselaw by topic → Browse Ability To Pay cases and more on FLexlaw
BARKDULL, Judge.
The appellant-husband appeals a final judgment of dissolution of marriage, complaining about the awards of alimony and attorney’s fees to the wife and the requirement that he continue private education for the child.
[*MXC] From the record, it appears the parties’ nine-year marriage produced one child who was born in 1971. By agreement, custody was given to the mother. The other portions of the final judgment required the husband to pay $75.00 per week child support; to maintain health, medical, dental insurance for the child; to provide a $10,-000.00 life insurance policy for the child, and to maintain the child in the Montessori schools or other private school. The wife was given the husband’s interest in the marital home as lump sum alimony [the home is valued at approximately $50,000.00, with an equity of approximately $18,-600.00]. The court also found that the wife was able to work full time as a nurse, but that she needed $50.00 per week rehabilitative alimony for one year for educational retraining. Further, the court held that the wife was unable to pay attorney’s fees; that the husband could, and that the fee would be set at a later date.
The husband, who is a former Episcopalian priest, now works for the Dade County court as a director of counselling. He earns approximately $17,000.00, netting approximately $12,000.00 a year. After he makes the payments required by the final judgment, he will have about $400.00 a month for personal expenses.
The wife works as a full time nurse and nets about $1,000.00 less than the husband. The wife points out that she has very little in the way of personal assets, while the husband has about $1,800.00 in cash and owns two cars worth approximately $1,000.00.
The husband also contends that the trial court erred in awarding to the wife lump sum and rehabilitative alimony and attorney’s fees, where she is employed and earns practically as much as he does, and that the matter of the private education of the child was never raised by the pleading or financial affidavits and the education is presently an emolument of prior employment and is not an expense contemplated in the past nor one that the husband will be able to meet in the future.
We agree that the lump sum alimony to the wife of the husband’s undivided one-half interest in the marital home was erroneous. There is no positive showing in this record of necessity on the part of wife and ability of the husband to pay, necessary to sustain the award of lump sum alimony appealed herein. Cummings v. Cummings, 330 So. 2d 134 (Fla.1976); Meredith v. Meredith, 366 So. 2d 425 (Fla.1978); Fraser v. Fraser, 368 So. 2d 97 (Fla. 3d DCA 1979); Martin v. Martin, 366 So. 2d 475 (Fla. 1st DCA 1979), opinion filed October 11, 1979; Griffith v. Griffith, 376 So. 2d 418 (Fla. 3d DCA 1979). Accordingly, that portion of the final judgment awarding the wife the husband’s one-half interest in the marital home is reversed.
We modify the requirement that the appellant supply the cost of private schooling to read that he shall furnish private schooling only so long as it is on a gratis basis because of his prior affiliation with the private school, but that he shall not be required to provide the private schooling at his expense.
Since the other financial provisions of the final judgment may have been influenced by the lump sum award to the wife of the marital home, which we have reversed, the cause is remanded to the trial court so it may reconsider these other aspects of the final judgment. The court may take further testimony in this regard if it deems it appropriate. Fraser v. Fraser, supra; Winner v. Winner, 370 So. 2d 845 (Fla. 3d DCA 1979).
Reversed in part, modified in part, and remanded to the trial court.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
-
Martinez v. Martinez, 573 So. 2d 37 (Fla. 1st DCA 1990)…ith the family’s customary standard and are in the child’s best interest; but such expenses should not be ordered where it cannot be shown that the child has some special need that cannot adequately be fulfilled by public schools); Thomas v. Thomas, 377 So. 2d 1009 (Fla. 3d DCA 1979) (where private school expenses were not an expense contemplated in the past nor one that the husband would be able to meet in the future because of the other financial provisions in the final judgment, a requirement that the husba…
-
Ault v. Ault, 431 So. 2d 302 (Fla. 2d DCA 1983)…to fund her children’s private education. The husband, on the other hand, asserts that this is a matter within his discretion and that it would be improper for the court to require him to pay for private schooling. He submits that Thomas v. Thomas, 377 So. 2d 1009 (Fla. 3d DCA 1979), supports his position. In his order, the trial judge noted that he was not requiring the husband to pay for private schooling for the children, pursuant to the authority of Thomas. In Thomas the husband was a former Episcopal pr…
-
Armstrong v. Armstrong, 424 So. 2d 24 (Fla. 3d DCA 1982)…and fix an award of attorney’s fees to the wife for services rendered in the trial court and for services rendered in this court. Goss v. Goss, 400 So. 2d 518 (Fla. 4th DCA 1981); Eagan v. Eagan, 392 So. 2d 988 (Fla. 5th DCA 1981); Thomas v. Thomas, 377 So. 2d 1009 (Fla. 3d DCA 1979). Reversed in part, affirmed in part and remanded with directions.…
Authorities Cited
- Cummings v. Cummings, 330 So. 2d 134 (Fla. 1976)
- Winner v. Winner, 370 So. 2d 845 (Fla. 3d DCA 1979)
- Meridith v. Meridith, 366 So. 2d 425 (Fla. 1978)
- In re the Est. of Philip Siegel, 366 So. 2d 425 (Fla. 1978)
- Fraser v. Fay Fraser, 368 So. 2d 97 (Fla. 3d DCA 1979)
- Seckinger v. Lucien C. Proby, 366 So. 2d 475 (Fla. 3d DCA 1979)
- Griffith v. Griffith, 376 So. 2d 418 (Fla. 3d DCA 1979)