HENRY A. KELLER, JR., APPELLANT,
v.
CHRISTAL C. KELLER, APPELLEE
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In this interlocutory appeal, the Florida Third District Court of Appeal reversed the trial court's denial of credit for alimony payments made pending appeal against a lump sum alimony award. The court held that temporary alimony payments made during an appeal should be credited against the final lump sum award once determined.
The trial court erred in denying the husband a credit for alimony paid pending appeal against the lump sum award. Temporary alimony payments made pursuant to court order during an appeal must be credited against the final lump sum award.
[1] Payments made as temporary alimony pending appeal should be credited against a final lump sum alimony award.
[2] A trial court errs by failing to credit payments made as temporary alimony pending appeal against the final lump sum alimony award.
Previewing 2 of 4 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“We agree that such amounts should properly be deducted from the final lump sum award once such award is determined. The purpose of the lump sum alimony is to discharge the husband from any further obligation to the wife after the date final judgment is entered; thus, payments made after this date, but pursuant to an order requiring temporary alimony pending appeal, goes toward discharge of that obligation.”
Establishes the core principle that temporary alimony payments pending appeal must be credited against the final lump sum award
Previewing 1 of 2 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceThe husband was originally ordered to pay lump sum alimony. On appeal, this court reduced the lump sum to $25,000 and ordered periodic rehabilitative …
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PER CURIAM.
This is an interlocutory appeal by appellant from a post mandate order denying appellant a credit for sums paid as lump sum alimony award pending appeal.
In a previous appeal this court modified the original alimony judgment by reducing the lump sum award to $25,000.00 and ordering periodic rehabilitative alimony be paid by the husband for sixty months. Keller v. Keller, 348 So. 2d 654 (Fla. 3d DCA 1977). Pending appeal by the husband, he was ordered by the trial judge to pay the sum of $1,300.00 per month as alimony until further order of the court. Pursuant to the court’s order the husband paid a total sum of $16,900.00.'
Following the issuance of this court’s mandate, the husband tendered the sum of $8,100.00 plus interest in the sum of $566.00 in full satisfaction of the lump sum portion of the award. The wife rejected the offer and moved the trial court to order the husband to comply with the final judgment as modified by this court requiring payment of $25,000.00 plus interest from July 15, 1976 in satisfaction of lump sum alimony portion of the final judgment. The trial court rejected the husband’s claim for credit for alimony paid pending appeal and ordered him to pay the entire sum of $25,000.00, plus interest. It is from that order that this appeal is taken.
The sole point presented for review is whether the trial court erred in denying appellant a credit for sums paid as alimony pending appeal, against the lump sum alimony award. We find error and reverse.
In Frischkorn v. Frischkorn, 223 So. 2d 380 (Fla. 3d DCA 1969), we stated:
“We agree that such amounts should properly be deducted from the final lump sum award once such award is determined. The purpose of the lump sum alimony is to discharge the husband from any further obligation to the wife after the date final judgment is entered; thus, payments made after this date, but pursuant to an order requiring temporary alimony pending appeal, goes toward discharge of that obligation. See Morton v. Morton, Fla.App.1958, 104 So. 2d 472.”
Since there was a lump sum award here, the trial court should have credited against such sum the payment made by appellant pending the prior appeal. His failure to do so was reversible error. Rankin v. Rankin, 275 So. 2d 283 (Fla. 2d DCA 1973). Therefore, for the reasons stated and upon the authorities cited we must reverse the order appealed.
Reversed and remanded for further proceedings not inconsistent herewith.
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Citator
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W.B. Leonard v. Sann Leonard, 427 So. 2d 758 (Fla. 4th DCA 1983)…s now before us on appeal. In essence the husband claims that the periodic alimony constituted temporary alimony pending appeal and he relies on those decisions which have allowed credit for such payments against lump sum awards. Keller v. Keller, 356 So. 2d 854 (Fla. 3d DCA 1978); Rankin v. Rankin, 275 So. 2d 283 (Fla. 2d DCA 1973); Frischkorn v. Frischkorn, 223 So. 2d 380 (Fla. 3d DCA 1969); and Morton v. Morton, 104 So. 2d 472 (Fla. 2d DCA 1958). We do not believe these decisions are apt. In this case th…
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McKELVEY v. McKELVEY, 550 So. 2d 91 (Fla. 3d DCA 1989)…PER CURIAM. Affirmed. Keller v. Keller, 356 So. 2d 854 (Fla. 3d DCA 1978); Frischkorn v. Frischkorn, 223 So. 2d 380 (Fla. 3d DCA), [*92] cert. dismissed, 228 So. 2d 909 (Fla.), cert. denied, 229 So. 2d 868 (Fla.1969).…
Authorities Cited
- Frischkorn v. Thomasine G. Frischkorn, 223 So. 2d 380 (Fla. 3d DCA 1969)
- MacKey v. State, 223 So. 2d 380 (Fla. 3d DCA 1969)
- Rankin v. Rankin, 275 So. 2d 283 (Fla. 2d DCA 1973)
- Morton v. Morton, 104 So. 2d 472 (Fla. 2d DCA 1958)
- Keller v. Christal C. Keller, 348 So. 2d 654 (Fla. 3d DCA 1977)