Besley v. Besley

• Decision Date: 20 September 1983
• Docket Number: No. 82-154,82-154
• Citation: Besley v. Besley, 437 So.2d 247 (Fla. App. 1983)
• Parties: Sara J. BESLEY, a/k/a Sally Besley, Appellant, v. Edwin D. BESLEY, Appellee.
• Court: Florida District Court of Appeals

Page 247

437 So.2d 247

Sara J. BESLEY, a/k/a Sally Besley, Appellant, v. Edwin D. BESLEY, Appellee.

No. 82-154.

District Court of Appeal of Florida Third District.

Sept. 20, 1983.

Schwartz, Klein, Steinhardt & Weiss and Norman S. Klein, Miami, for appellant.

Buchbinder & Elegant and Harris J. Buchbinder, Miami, for appellee.

Before HENDRY, BASKIN and JORGENSON, JJ.

ON MOTION FOR REHEARING GRANTED

PER CURIAM.

We withdraw our opinion filed March 1, 1983, and substitute the following in its place.

The final judgment of dissolution is affirmed except for the lump sum alimony award which we reverse and remand with directions to award the wife the husband's interest in the marital home as lump sum alimony. See Locke v. Locke, 413 So.2d 431 (Fla. 3d DCA 1982); Colucci v. Colucci, 392 So.2d 577 (Fla. 3d DCA 1980); Cowan v. Cowan, 389 So.2d 1187 (Fla. 5th DCA 1980), review denied mem., 397 So.2d 777 (Fla.1981); Cuevas v. Cuevas, 381 So.2d 731 (Fla. 3d DCA 1980).

Reversed and remanded with directions. ¹

BASKIN, Judge (dissenting).

I dissent from the majority opinion because this court, in reversing the trial court's decision without assigning a reason, has impermissibly designated itself the fact-finder. Canakaris v. Canakaris, 382 So.2d 1197 (Fla.1980); Shaw v. Shaw, 334 So.2d 13 (Fla.1976). If this court is inclined to conduct trials de novo, it seems futile to assign any proceedings to the trial court prior to appellate review. In this case, especially, I believe the appellate court overstepped its appropriate role; the litigants did not agree on the facts and it was incumbent upon the trial court, not the appellate court, to resolve disputed issues of fact. The trial court exercised its discretion in conformity with the law and, since no abuse of discretion was demonstrated, its order should be affirmed.

1 In response to the dissent, we do not think that reasonable persons could disagree that under the circumstances of this case the trial court abused its discretion.

That Mrs. Besley was "shortchanged" is reflected by the record: the trial court's award to Mrs. Besley of permanent annual alimony of $20,000 measured against Mr. Besley's annual income of between $45,000 and $65,000, and Mr. Besley's retention of at least 75% of the marital assets. Mrs. Besley, a wife of 33 years, now 53 years of age and suffering from hypertension, a kidney ailment, severe gout, arthritis and ulcers, has limited prospects in the job market.

Given a 33-year marriage...