JOHN O. ULBRICH, APPELLANT,
v.
SIEGRID I. ULBRICH, APPELLEE
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In this dissolution of marriage appeal, the husband challenges the monetary provisions of the final judgment, and the wife cross-appeals the attorney's fee award. The Fourth District Court of Appeal affirms the alimony and child support amounts but reverses the provision making periodic payments a charge against the husband's estate, finding it violates established Florida law.
The trial court lacks authority to make periodic alimony payments a charge against the payor's estate absent consent, and such a provision must be deleted. Child support requirements to age 18 or high school completion are acceptable, but such obligations should not extend beyond the child's 21st birthday absent mental or physical deficiencies.
[1] Periodic alimony payments are generally not a charge against the payor's estate absent the consent of the party to be charged.
[2] A trial court may have authority to make alimony provisions survive the death of the payor when factors in the case require it to do equity and justice between the partie…
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Join FLexlaw to unlock all legal intelligence“absent the consent of the party to be charged, the trial court is without authority to make periodic alimony payments a charge against his estate”
Establishes the core holding that trial courts cannot charge periodic alimony to an estate without consent
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Join FLexlaw to unlock all legal intelligenceThe case involves a husband and wife in a dissolution of marriage proceeding. The trial court awarded periodic alimony and child support payments to t…
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DOWNEY, Judge.
The husband appeals from the monetary provisions of a final judgment of dissolution and the wife cross appeals from the award of attorney’s fees.
Based upon this record the appellant has failed to demonstrate error except as to that portion of the judgment which provided that all periodic payments of alimony or child support shall be a charge against the husband’s estate.
It has long been recognized in Florida that absent the consent of the party to be charged, the trial court is without authority to make periodic alimony payments a charge against his estate. Aldrich v. Aldrich, Fla.1964, 163 So. 2d 276. However, in First National Bank of St. Petersburg v. Ford, Fla.1973, 283 So. 2d 342, it appears the Supreme Court proposed to create an exception to the foregoing rule, the effect of which is that the trial court does have authority to make alimony provisions survive the death of the payor when there are factors present in the case which require that result in order to do equity and justice between the parties. The Third District Court of Appeal in Rouse v. Rouse, Fla.App.1975, 313 So. 2d 458, opinion filed May 27, 1975, seems to have so interpreted the Ford case. However, in Bunn v. Bunn, Fla.App.1975, 311 So. 2d 387, this court after a detailed analysis of the Ford opinion concluded that the references to a modification of the Aldrich rule were obi-ter dictum and not binding precedent and thus declined to follow that apparent holding. While it appears to the writer that the Supreme Court intended the Ford opinion to constitute a modification of the Aid-rich rule, whether dictum or not, this court has already taken a contrary position. Therefore, consistency requires that we adhere to the position set forth in Bunn.
Accordingly, upon remand the trial court is directed to delete from the final judgment the provision making all periodic payments contained therein a charge against the appellant’s estate.
We find no error in the requirement that child support continue until the child reaches 18 years of age or finishes high school, whichever is later. However, on remand, we think the provision should be amended to provide that said obligation does not extend beyond the child’s 21st birthday (absent of course mental or physical deficiencies rendering him unable to support himself) in accordance with Finn v. Finn, Fla.1975, 312 So. 2d 726, and Briggs v. Briggs, Fla.App.1975, 312 So. 2d 762.
Affirmed in part and reversed in part and remanded with directions.
WALDEN, C. J., and CROSS, J., concur.
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Nicolay v. Jacquelyn Ann Nicolay, 387 So. 2d 500 (Fla. 2d DCA 1980)…ear old son in college, the court said, “The recent case of Finn v. Finn . seems to hold that dependency as a result of the bona fide pursuit of education may exist as to one between 18 and 21 years of age.” 312 So. 2d at 762. In Ulbrich v. Ulbrich, 317 So. 2d 460 (Fla. 4th DCA 1975), the court continued along the same line of reasoning when it said: We find no error in the requirement that child support continue until the child reaches 18 years of age or finishes high school, whichever is later. However, on…
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Adolphus Daniel Evans v. Rhoda Rea Evans, 456 So. 2d 956 (Fla. 1st DCA 1984)…5), the Florida Supreme Court indicated that such dependency should not be restricted to physical or mental incapacity, and may encompass the economic dependency of an offspring pursuing an education beyond the age of 18. Accord, Ulbrich v. Ulbrich, 317 So. 2d 460 (Fla. 4th DCA 1975). In the present case there is evidentiary support for the trial court’s findings regarding the child’s continuing need for support, and appellant’s ability to contribute thereto, so as to establish the child’s economic dependency…
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Gordon v. Jeri Lee Gordon, 335 So. 2d 321 (Fla. 4th DCA 1976)…he alimony award. We find no abuse of discretion in the other awards made by the trial court,3 except that the provision making child support payments binding upon the estate of the husband is improper and should be deleted. See Ulbrich v. Ulbrich, 317 So. 2d 460 (Fla.App.4th 1975). Accordingly, the cause is remanded for reconsideration of the propriety of the award of alimony in accordance with the views expressed herein and for such other proceedings as are consistent herewith. Inasmuch as- the amount of…
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Finn v. Finn, 312 So. 2d 726 (Fla. 1975)
- Aldrich v. Aldrich, 163 So. 2d 276 (Fla. 1964)
- Bunn, 311 So. 2d 387 (Fla. 4th DCA 1975)
- The First Nat'l Bank IN ST. Petersburg v. Ford, 283 So. 2d 342 (Fla. 1973)
- Rouse v. Gwendoline B. Rouse, 313 So. 2d 458 (Fla. 3d DCA 1975)
- Briggs v. Briggs, 312 So. 2d 762 (Fla. 4th DCA 1975)