Bird v. Bird

• Decision Date: 18 June 1980
• Docket Number: No. 79-775,79-775
• Citation: Bird v. Bird, 385 So.2d 1090 (Fla. App. 1980)
• Parties: Stanley BIRD, Appellant-Cross Appellee, v. Deborah BIRD, Appellee-Cross Appellant.
• Court: Florida District Court of Appeals

Page 1090

385 So.2d 1090

Stanley BIRD, Appellant-Cross Appellee, v. Deborah BIRD, Appellee-Cross Appellant.

No. 79-775.

District Court of Appeal of Florida, Fourth District.

June 18, 1980.

Rehearing Denied July 25, 1980.

William (Dale) Anderson, Jr. of Anderson, Dungey & Hershey, Stuart, for appellant-cross-appellee.

Alexander Myers of Christiansen, Jacknin & Myers, Palm Beach, for appellee-cross-appellant.

DOWNEY, Judge.

The subject of this appeal is a final judgment rendered in a dissolution proceeding.

The parties were married some thirty years; they have no minor children and both parties were employed. As a result of their industry they acquired several parcels of real estate and other personal property, all through their joint efforts. At the time of dissolution the property in issue on this appeal was held jointly and was purchased with funds earned by the parties during the marriage, with the exception of $10,000 inherited by the wife and which, according to her testimony, was invested in the couple's Canadian property.

The husband received a $50,000 workman's compensation award, which he used to pay off some debts, buy some furniture, and, after the divorce commenced, to purchase a piece of property for his new home and business office. The husband owned and operated a taxi business in which the wife claimed a special equity by virtue of having spent considerable time working in the business. Predictably, the husband denigrated the amount and value of her assistance therein. However, that was for the trial judge to resolve and he did so.

In pertinent part the final judgment provided:

a. The Wife has a special equity in the business of STANLEY BIRD to-wit: Bird's Taxi. However, the Court hereby orders the Wife, DEBORAH BIRD, to convey all right, title and interest in said business to the Husband, STANLEY BIRD.

c. The Court specifically finds that the Wife has a special equity in the three belowlisted properties pursuant to the testimony and evidence received in this case. The Court hereby awards the Wife any and all interest the Husband has in said property and awards this to the Wife as lump sum alimony. The three properties are: (descriptions omitted)

10. That the Husband shall pay as contribution toward the Wife's attorney's fees the sum of $1,800.00 plus $170.73 costs. This sum shall be paid within ninety days.

In his two points on appeal the husband contends that the award of the aforementioned property to the wife, together with an attorney's fee, was error. By cross appeal the wife maintains that the court erred in failing to merge into the final judgment some of the mandates of previous interlocutory orders. The appellant has demonstrated no reversible error. We affirm the award of attorney's fees and find no merit in appellee's cross appeal.

Had this case been decided prior to the advent of the Supreme Court's decision in Canakaris v. Canakaris, 382 So.2d 1197 (Fla.1980), the outcome would have been vastly different, as we would have had great difficulty in upholding all aspects of the final judgment. It appears the trial judge in his wisdom was ahead of his time, because in our view Canakaris has eliminated some of the strict limitations which the cases had imposed upon trial judges in dividing up property accumulated during the marriage. ¹ As a backdrop for our decision here we should keep in mind the lessons of Canakaris :

The judge possesses broad discretionary authority to do equity between the parties and has available various remedies to accomplish this purpose, including lump sum alimony, permanent periodic alimony, rehabilitative alimony, child support, a vested special equity in property, and an award of exclusive possession of property. As considered by the trial court, these remedies are interrelated; to the extent of their eventual use, the remedies are part of one overall scheme. It is extremely important that they also be reviewed by appellate courts as a whole, rather than independently. 382 So.2d at 1202.

The term "special equity" should not be used when considering lump sum alimony; rather, it should be used only when analyzing a vested property interest of a spouse. See Ball v. Ball, 335 So.2d 5 (Fla.1976); Eakin v. Eakin (99 So.2d 854 (Fla.)); Heath v. Heath, (103 Fla. 1071, 138 So.2d 796).

In granting lump sum alimony, the trial court should be guided by all relevant circumstances to ensure "equity and justice between the parties." § 61.08, Fla.Stat. 382 So.2d at 1201.

A judge may award lump sum alimony to ensure an equitable distribution of property acquired during the marriage, provided the evidence reflects (1) a justification for such lump sum payment and (2...