Canakaris v. Canakaris

• Decision Date: 17 March 1978
• Docket Number: No. FF-265,FF-265
• Citation: 356 So.2d 858
• Court: Florida District Court of Appeals
• Parties: John M. CANAKARIS, Appellant, v. Elaine P. CANAKARIS, Appellee.

Page 858

356 So.2d 858

John M. CANAKARIS, Appellant, v. Elaine P. CANAKARIS, Appellee.

No. FF-265.

District Court of Appeal of Florida, First District.

March 17, 1978.

Rehearing Denied April 17, 1978.

Isham W. Adams, Daytona Beach, for appellant.

William M. Barr of Raymond, Wilson, Conway, Barr & Burrows, Daytona Beach, for appellee.

BOYER, Judge.

Appellant, a physician who has become wealthy since his marriage to appellee in 1943, seeks review of portions of a final judgment of dissolution of marriage.

The parties were married while the husband was attending medical school and the wife a first year college student. She quit college to be a wife. The only child of the marriage, a son, is "grown and gone". The husband's net worth is well into seven figures. By the final judgment here appealed the trial judge awarded to the wife: (1) a one-half interest in the real property and improvements constituting the Bunnell General Hospital (which was held as tenants by the entireties), the one-half interest having a value of approximately $200,000.00; (2) a one-half interest in unimproved lots which were held as tenants by the entireties, the one-half interest having a value in excess of $25,000.00; (3) jewelry having a value in excess of $9,600.00; (4) one-half interest in a 129 shares of common stock in Flagship Bank, Inc., the one-half interest having a value at the time of the final judgment in excess of $500.00; (5) a savings account in which there was deposited $15,000.00; (6) a 1974 Cadillac; (7) the marital residence in toto (which was owned as tenants by the entireties) having a value in excess of $75,000.00, together with the household furniture and fixtures having a value in excess of $10,000.00; (8) lump sum alimony in the sum of $50,000.00 payable in installments of $10,000.00 over five consecutive years and (9) permanent periodic alimony in the sum of $500.00 per week. By the final judgment the husband was also required to pay the wife's attorney's fees the amount of which was to be determined at a hearing in the future and after a motion for rehearing the husband was required to pay the wife $500.00 per week alimony pending appeal.

The husband takes a scattergun approach by his first point which he phrases as follows:

"The trial court in entering the judgment appealed abused its discretion in awarding appellee the appellant's interest in the marital residence property of the parties plus the sum of Fifty Thousand Dollars ($50,000.00) as lump sum alimony and Five Hundred Dollars ($500.00) per week as permanent or periodic alimony and retaining jurisdiction to make a further award on appellee's behalf of her costs and attorney's fees."

His second point is a bit more specific, it being:

"The trial court abused its discretion in entering the order awarding appellee Five Hundred Dollars ($500.00) per week temporary alimony pending this appeal."

In Jones v. Jones, 330 So.2d 536 (Fla.App. 1 1976) Judge Mills, speaking for this Court, said:

"The trial court has authority to order a husband to convey to the wife his undivided interest in property they own as tenants in common as lump sum alimony. Reid v. Reid, 68 So.2d 821 (Fla.1953). But lump sum alimony should be awarded only in those instances where some special equities require it, Yandell v. Yandell, 39 So.2d 554 (Fla.1949), and it is justified only where it serves a reasonable purpose, such as rehabilitation, or the award would be advantageous to both parties. Calligarich v. Calligarich, 256 So.2d 60 (Fla.App. 4th, 1971)." (330 So.2d at page 538)

Again, in Cann v. Cann, 334 So.2d 325 (Fla.App. 1 1976) this court said:

"Lump sum alimony, sometimes known as alimony in gross, is essentially payment of a definite sum and is in the nature of a final property settlement. Hence, an award of lump sum alimony creates a vested right which survives death (Morris v. Morris, Fla.App. 2nd 1973, 272 So.2d 202) and is not modifiable nor terminable upon the divorced wife's remarriage (Horne v. Horne, Fla.App. 2nd 1974, 289 So.2d 39). Lump sum alimony may consist not only of money, but also or in lieu thereof, real or personal property, such as a marital home. (Vandervoort v. Vandervoort, Fla.App. 3rd 1974, 300 So.2d 694.) Regardless of what form it takes, ' * * * Lump sum alimony is justified only where it serves a reasonable purpose, such as rehabilitation, or where the marriage's duration or the parties' financial position would make such an award advantageous to both. The wife's need and the husband's ability are still the correct equation to follow. * * * ' (Calligarich v. Calligarich, Fla.App. 4th 1971, 256 So.2d 60, 61).

"Although lump sum alimony is distinguished from periodic alimony, lump sum alimony may be paid in installments. (Morris v. Morris, supra) However, in order for it to be categorized as lump sum, it must be for a definite amount and must have some reasonable relationship to the estate of the person upon which it is imposed. (Horne v. Horne, supra; Keller v. Keller, Fla.1974, 308 So.2d 106) A further element of lump sum alimony is that it be awarded only where special equities require it or make it advisable. (Jones v. Jones, Fla.App. 1st 1976, 330 So.2d 536). The requirement that lump sum alimony be based upon special equities must not be confused with an award in a dissolution of marriage action to a spouse who has acquired a special equity in property accumulated during the marriage. Such an award is not alimony. (Eakin v. Eakin, Fla.1958, 99 So.2d 854)

"Periodic alimony is an allowance payable at intermittent times (usually by the week or by the month) in a definite amount over a definite or indefinite period of time. An award of periodic alimony is appropriate according to the needs of the spouse requesting alimony and the corresponding ability of the other spouse to pay.

"Permanent alimony, on the other hand, is an allowance for the support and maintenance of a spouse during his or her lifetime. Its purpose is to provide nourishment, sustenance and the necessities of life to a former spouse who has neither the resources nor ability to be self-sustaining. (Lefler v. Lefler, Fla.App. 4th 1972, 264 So.2d 112) However, 'permanent' does not necessarily mean 'forever'. (Ruhnau v. Ruhnau, Fla.App. 1st 1974, 299 So.2d 61)" (334 So.2d at pages 328 and 329)

A review of the record reveals no special equity of the wife in the marital home. Accordingly, in keeping with the authorities above cited, we reverse that portion of the final judgment awarding to the wife the husband's interest in the marital home owned prior to the dissolution of the marriage as tenants by the entireties.

As held and recited in numerous cases, among them being Cann v. Cann, supra, the proper formula to be followed in fixing alimony is the requesting party's need and the responding party's ability. The record before us does not sustain a need by the wife of $500.00 per week permanent, periodic alimony. We will, however, refrain from evaluating the record ourselves but instead reverse that award and remand to the trial court for the purpose of determining, based upon evidence, the needs of the wife. Additional evidence may be admitted for that purpose if the trial court and parties deem same necessary.

The temporary award of $500.00 per week alimony pending this appeal is in the nature of temporary rehabilitative alimony and, though the sum is generous, we affirm on that point.

Finally, we address the issue of attorney's fees. As already recited, the wife has, in addition to her other estate which is of considerable value, an award of...