Borchard v. Borchard

• Decision Date: 12 March 1999
• Docket Number: No. 97-04579.,97-04579.
• Citation: 730 So.2d 748
• Parties: John George BORCHARD, Appellant, v. Kristine BORCHARD, Appellee.
• Court: Florida District Court of Appeals

730 So.2d 748

John George BORCHARD, Appellant, v. Kristine BORCHARD, Appellee.

No. 97-04579.

District Court of Appeal of Florida, Second District.

March 12, 1999.

Rehearing Denied April 21, 1999.

Eileen H. Griffin of Griffin & Associates, P.A., Brandon, for Appellant.

Michael L. Hastings of Hastings & Estreicher, P.A., St. Petersburg, for Appellee.

ALTENBERND, Acting Chief Judge.

John George Borchard appeals the final judgment of dissolution of his marriage to Kristine Borchard. He challenges the trial court's decision to allow his former wife to relocate with their minor children to the state of Arizona. He also challenges the trial court's use of installment, lump sum alimony as bridge-the-gap alimony. We affirm both decisions. This court has never expressly authorized the use of rehabilitative alimony as a form of bridge-the-gap alimony because such alimony does not contemplate a true plan of rehabilitation. However, we see no reason why a trial court cannot utilize lump sum alimony, even if it must be paid in a few installments, to help one spouse adjust financially to life after marriage. Like any other award of alimony, the trial court's decision to use such lump sum alimony must be a reasoned, discretionary decision compatible with the factors delineated in section 61.08(2), Florida Statutes (1997).

I. RELOCATION

Mr. and Mrs. Borchard met while attending Northern Arizona University. Mrs. Borchard had been raised in Arizona, and Mr. Borchard in California. They married in 1991 and, after a brief sojourn in California, moved to Florida. Mr. Borchard started a strawberry brokerage business. His family owns an agricultural business in California, and the Florida operation was a logical extension of that business.

The Borchards' first child was born in December 1992, and a second child was born in January 1996. The couple had marital difficulties almost from the inception of the marriage. By the time the second child was born, the marriage had failed. Mrs. Borchard filed a petition for dissolution of marriage in September 1995. In April 1997, she filed an amended petition seeking primary parental responsibility for both children and requesting permission to relocate to Arizona. The final hearing was held on several dates between May and July of 1997. On August 12, 1997, the trial court entered a final judgment of dissolution that gave Mrs. Borchard custody of the children and permitted her to return to Arizona.

Section 61.13(2)(d), Florida Statutes (1997), took effect on July 1, 1997. See ch. 97-242, Laws of Fla. That enactment eliminated any evidentiary presumption that may have existed in favor of the relocating parent under prior case law and slightly modified the six factors delineated in Mize v. Mize, 621 So.2d 417 (Fla.1993), which trial courts utilize in deciding whether to permit a primary residential parent to relocate. The statute, however, continues to require the trial court to determine, as the sixth factor, whether the move would be in the best interest of the child. See § 61.13(2)(d)(6), Fla. Stat. (1997). It is obvious that these factors are not separate and distinct mathematical elements in an equation and that the sixth factor is a "generalized summary of the previous five." Mize, 621 So.2d at 420. We conclude that the trial court adequately considered the statutory factors and made an affirmable, discretionary decision.

We comment that this appeal was filed in October 1997. No attempt was made by the parties to expedite the appeal. Even if the parties had requested an expedited appeal, it may have been difficult for this court to expedite such an appeal of a final order, in part because the parties requested oral argument.¹ In this particular case, it has been difficult to expedite the ruling on custody because of the complexity of the second issue.

This case suggests that the Appellate Court Rules Committee and the Family Law Rules Committee of the Florida Bar might consider a method to allow a more expedited review of the relocation issue when the primary custodial parent plans to reside in a location that will result in substantially curtailed contact with the other parent. If we had found an error in this final judgment concerning the issue of relocation, it would have been very traumatic for both the mother and children to return to Florida after living in Arizona for more than a year. Moreover, the trial court's decisions concerning alimony and child support were based on the assumption that the mother and children would return to Arizona to be near Mrs. Borchard's family. A reversal of the issue concerning relocation would have necessitated a reversal of the entire judgment. We do not wish to encourage unnecessary appeals of such relocation issues, but a limited method to review these issues prior to the entry of a final judgment might have merit. Cf. Fla. R.App. P. 9.130(a)(3)(C)(iii) (permitting appeal of nonfinal order that determines "child custody in family law matters").

II. LUMP SUM ALIMONY

Mrs. Borchard sought permanent, rehabilitative or lump sum alimony. The trial court rejected permanent periodic alimony in this short-term marriage of five years and concluded that Mrs. Borchard's rehabilitative plan would have resulted in less income than she was capable of earning with her existing college degree. There is no issue that the trial court properly denied these forms of alimony.

However, the trial court awarded $25,000 as "lump sum alimony payable by the Husband directly to the Wife at the rate of $1,000 per month." The trial court awarded this alimony "after review of all statutory criteria" and finding that "the Wife needs financial help during her transition to being a single mom." There is no question that Mr. Borchard has the ability to pay this alimony and Mrs. Borchard needs this money. The only issue is whether the trial court had the authority to make this award. We conclude that it did.

Section 61.08, Florida Statutes (1997), is the statutory authorization for alimony. It states, in relevant part:

(1) In a proceeding for dissolution of marriage, the court may grant alimony to either party, which alimony may be rehabilitative or permanent in nature. In any award of alimony, the court may order periodic payments or payments in lump sum or both.... In all dissolution actions, the court shall include findings of fact relative to the factors enumerated in subsection (2) supporting an award or denial of alimony.

(2) In determining a proper award of alimony or maintenance, the court shall consider all relevant economic factors, including but not limited to:

(a) The standard of living established during the marriage.

(b) The duration of the marriage.

(c) The age and the physical and emotional condition of each party.

(d) The financial resources of each party, the nonmarital and the marital assets and liabilities distributed to each.

(e) When applicable, the time necessary for either party to acquire sufficient education or training to enable such party to find appropriate employment.

(f) The contribution of each party to the marriage, including, but not limited to, services rendered in homemaking, child care, education, and career building of the other party.

(g) All sources of income available to either party. The court may consider any other factor necessary to do equity and justice between the parties.

This statute makes clear that lump sum alimony is not actually a third type of alimony, in addition to rehabilitative or permanent alimony. It is primarily a means to accomplish the ends of rehabilitative or permanent alimony; it is a judicial tool or method used to fulfill the legislative policies contained in the two types of alimony. Its use can be compared or contrasted to the use of periodic payments.

Because lump sum alimony establishes a specific, fixed monetary obligation in the final judgment, this tool causes lump sum alimony to have at least two major substantive differences from periodic alimony; the amount awarded is immediately vested and non-modifiable, and this form of alimony does not terminate upon the death of the payor or the remarriage of the payee. See Granville v. Granville, 445 So.2d 362 (Fla. 1st DCA 1984). Although the name suggests that lump sum alimony must always be payable in one lump sum, the trial court has authority to permit the payor to pay the lump sum in installments, comparable to an installment promissory note. See Donoff v. Donoff, 691 So.2d 1091 (Fla. 4th DCA 1997); Paetzold v. Paetzold, 673 So.2d 888 (Fla. 2d DCA 1996); Turner v. Turner, 529 So.2d 1138 (Fla. 1st DCA 1988).

Although an award of lump sum alimony may be rehabilitative, the award in this case is "permanent in nature." The trial court's judgment in this case awards permanent lump sum alimony, payable in installments.²

In assessing the use of lump sum alimony to bridge the gap between married life and single life, it is significant to note that the intended legislative function of lump sum alimony appears to have evolved over the last fifty years. The first statutory authorization for lump sum alimony occurred in 1947. See ch. 23894, § 1, Laws of Fla. (1947); § 65.08, Fla. Stat. (1949) ("In any award of permanent alimony the court shall have jurisdiction to order periodic payments or payment in lump sum."). At that time, Florida had no statute comparable to our current method of equitable distribution. See § 61.075, Fla. Stat. (1997). Even when the supreme court discussed lump sum alimony in Canakaris v. Canakaris, 382 So.2d 1197 (Fla.1980), the statutory guidelines for dividing marital assets through equitable distribution did not exist. See ch. 61, Fla. Stat. (1981). The legislature did not authorize equitable distribution of marital assets and liabilities until October 1, 1988. See ch. 88-98, Laws of Fla.

Because statutory equitable distribution is of recent origin, the case law discussing lump sum alimony primarily discusses it as a...