MARGARET FRANCIS PALMER, APPELLANT,
v.
CLYDE ORIEN PALMER, APPELLEE
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In this dissolution of marriage appeal, the Florida District Court of Appeal reversed the trial court's award of lump sum alimony to the husband while affirming the alimony and counsel fees awarded to the wife. The court held that it is error to award alimony to both spouses simultaneously, as one cannot have both financial need and ability to pay at the same time.
The court reversed the portion of the judgment awarding lump sum alimony to the husband and deleted the requirement that the wife transfer her stock interests to him. The court held that it is error to award alimony to both parties and that trial courts lack authority to order a transfer of one spouse's assets to another without establishing a special equity.
[1] An appellate court cannot reverse a trial court's findings on points requiring review of evidence when a record of that evidence is not provided on appeal.
[2] A party appealing a judgment bears the burden of demonstrating error, and this burden is presumed to be against the appellant when the trial court's findings are challeng…
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Join FLexlaw to unlock all legal intelligence“It is, of course, error to award alimony to both parties, since it is anomalous for one spouse to have both "needs" and "ability to pay" at the same time.”
Establishes the core legal principle that alimony cannot be awarded to both spouses in a dissolution proceeding.
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Join FLexlaw to unlock all legal intelligenceMargaret Francis Palmer appealed a dissolution of marriage judgment that awarded her husband lump sum alimony in the form of her stock interests in th…
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SCHEB, Judge.
The appellant/wife presents questions concerning various financial aspects of a judgment for dissolution of marriage entered by the trial court. The record on appeal does not include any stenographic record of the proceedings below, neither party having requested a court reporter in the trial court. Cf. RCP 1.035. This, of course, limits the scope of effective review of those matters of which she complains concerning the character and amount of alimony awarded to her and her contention that the trial court judge erred in not awarding her a special equity in property owned by her husband.
The finding and judgment of the trial court come to this court with a presumption of correctness and it is the appellant’s burden to demonstrate otherwise. Canning v. Norton, Fla.App.2d 1963, 155 So. 2d 737. Where, as here, points raised on appeal require a review of the evidence considered by the trial court and a record thereof is not furnished us in support of those contentions on appeal, this court cannot reverse the trial court on such points. Broward County Port Authority v. F. M. Rule & Co., Fla.App.2d 1960, 119 So. 2d 82.
From our review of the record furnished us and briefs of counsel and aft er hearing oral argument, we conclude that the only error that appellant has demonstrated is so much of the final judgment as awards lump sum alimony to the appellee/husband, the petitioner in the dissolution of marriage proceedings. For, even from the record presented, it is apparent the trial judge determined the wife required and the husband had the ability to provide her with lump sum alimony, permanent periodic alimony, and counsel fees. The final judgment so provided. Therefore, the award by the trial judge of lump sum alimony to the husband in the form of requiring the wife to transfer to him all of her interest in certain stocks is inconsistent with the whole tenor of the final judgment making awards to the wife. It is, of course, error to award alimony to both parties, since it is anomalous for one spouse to have both “needs” and “ability to pay” at the same time. Niemann v. Niemann, Fla.App.4th 1974, 294 So. 2d 415; cert. dismissed, Fla. 1975, 312 So. 2d 733. And, since no special equity was established in favor of the husband and recognizing the trial courts cannot make a property settlement for the parties, the trial court had no authority to transfer one spouse’s assets to another. That part of the final judgment cannot stand. See, Owen v. Owen, Fla.1973, 284 So. 2d 384.
Accordingly, Paragraph (6) of the final judgment which provides:
“The petitioner is awarded lump sum alimony as follows: the respondent’s interest, if any, in the Federal Land Bank Association and Production Credit Association stocks. The respondent shall execute the necessary forms to assign her interest, if any, to the petitioner in the said stock.”
is hereby deleted; otherwise, the judgment is affirmed.
BOARDMAN, Acting C. J., and GRIMES, J., concur.
Cases With Similar Vibessemantic neighbors from the corpus
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Simpson v. Frieda L. Simpson, 372 So. 2d 526 (Fla. 4th DCA 1979)…e was to build a little estate for her. However, the courts are prohibited from creating estates for parties, laudable as it might appear, just as they are prohibited from making other types of property settlements for the parties. Palmer v. Palmer, 330 So. 2d 839 (Fla. 2nd DCA 1976); Ramirez v. Ramirez, 309 So. 2d 25 (Fla. 4th DCA 1975). Accordingly, that aspect of the final judgment awarding the wife the husband’s one-half interest in the marital home is reversed and the cause is remanded with directions t…
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Reid v. Demetria Reid, 365 So. 2d 1050 (Fla. 4th DCA 1978)…Although realistically appealing, we do not find it to be a sufficient reason to uphold the award. The lump sum alimony law of this State is still to the effect that the court cannot make a property settlement for the parties. See Palmer v. Palmer, 330 So. 2d 839 (Fla.2d DCA 1976) and Owen v. Owen, 284 So. 2d 384 (Fla.1973). Therefore, the award of lump sum alimony is reversed and the matter remanded to the trial court for further proceedings consistent herewith. REVERSED AND REMANDED. MOORE, J., and FRANZ…
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Sanders v. Sanders, 435 So. 2d 372 (Fla. 5th DCA 1983)…e was to build a little estate for her. However, the courts are prohibited from creating estates for parties, laudable as it might appear, just as they are prohibited from making other types of property settlements for the parties. Palmer v. Palmer, 330 So. 2d 839 (Fla. 2nd DCA 1976); Ramirez v. Ramirez, 309 So. 2d 25 (Fla. 4th DCA 1975). Accordingly, that aspect of the final judgment awarding the wife the husband’s one-half interest in the marital home is reversed and the cause is remanded with directions t…
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
- Niemann v. Niemann, 294 So. 2d 415 (Fla. 4th DCA 1974)
- Broward Cnty. Port Auth. v. F. M. Rule & Co., 119 So. 2d 82 (Fla. 2d DCA 1960)
- Owen v. Owen, 284 So. 2d 384 (Fla. 1973)
- Niemann v. Niemann, 312 So. 2d 733 (Fla. 1975)
- Wilbert R. Canning for Invs. Mortg. Corp. v. Norton, 155 So. 2d 737 (Fla. 2d DCA 1963)