Chappell v. Chappell

• Decision Date: 13 October 1971
• Docket Number: No. 70--994,70--994
• Citation: 253 So.2d 281
• Parties: Marguerite Louise CHAPPELL, Appellant, v. Erncst CHAPPELL, Appellee.
• Court: Florida District Court of Appeals

Page 281

253 So.2d 281

Marguerite Louise CHAPPELL, Appellant, v. Erncst CHAPPELL, Appellee.

No. 70--994.

District Court of Appeal of Florida, Fourth District.

Oct. 13, 1971.

Robert Lee Saylor and Joseph D. Farish, Jr., of Farish & Farish, West Palm Beach, for appellant.

Alan R. Parlapiano and James L. Hegert, of Campbell, Colbath, Kapner & Bratten, West Palm Beach, for appellee.

WALDEN, Judge.

This is an appeal brought by a divorced wife from a post judgment order which allowed a setoff against alimony payments which were due to her from her former husband.

The parties were divorced in 1967. A property settlement agreement was incorporated therein. It provided, among other matters, for a weekly payment of $50.00 to the wife as alimony. ¹

After the divorce, the Internal Revenue Service assessed the parties for an income tax deficiency for 1965. A joint return had been filed for that year. The husband paid half the deficiency. The wife refused to contribute her half. Internal Revenue Service satisfied their demands by a seizure of the husband's bank account. The husband responded by suspending alimony payments to his wife, in effect creating his own setoff for half of the deficiency he claimed his wife was liable for. He was adjudged in contempt. He petitioned for an adjudication of contribution and setoff. The court allowed setoff of the income tax claim and directed that defendant husband be allowed a credit of $2,871.89 against any delinquent or future alimony payments.

The question of the efficacy of a setoff against alimony of a joint income tax liability is a matter of first impression in Florida. The lower court judge applied the rigid rules of contribution and setoff for coobligors. Florida has not before approved this approach in alimony situations. See Lopez v. Lopez, Fla.1956, 90 So.2d 456, for an example of Florida's application of contribution for tenants by the entirety.

Generally alimony is predicated on two factors, the husband's ability to pay and the wife's needs. These considerations are placed in a scale, precariously balanced and mixed with a dash of emotion and sentiment, to arrive at a fair sum for alimony. Naster v. Naster, Fla.1964, 163 So.2d 264; Gordon v. Gordon, Fla.App.1966, 192 So.2d 514.

Contribution is founded upon the equitable principle that no one shall be made to bear more than his share of any joint burden. 18 Am.Jur.2d, Contribution, § 4; 7 Fla.Jur., Contribution, § 2.

'The right of set-off is based on principles of right, justice, and benevolence. * * * Set-off contemplates the right existing between two parties to set off their debts by mutual deduction. It is not incompatible with the justice of plaintiff's claim but seeks to balance it in whole or in part by a counter obligation alleged to be due by plaintiff to defendant in another transaction. * * * Set-off does not require an equal balance.

'The right of set-off is an exercisable right, and Not a fixed or natural right conclusively established by the mere fact that each of the parties has a claim against the other; until the right is exercised, either party may do what he pleases with his property.

Set-off is an incident of judicial proceedings in which both parties become actors and is accomplished only by judicial action.' 80 C.J.S. Set-off and Counterclaim § 3, Set-off in General. (Emphasis supplied.)

'* * * A court of equity, or a court possessing equitable jurisdiction, has inherent power, as a part of its general jurisdiction, to allow or compel a set-off. * * * As sometimes stated, the right of set-off is an equitable right or a creature of equity, and is founded on equitable principles. * * *

'Set-off in equity is not a matter of right, but Rests largely in the discretion of the court as defined by well-recognized equitable principles of universal application.' (Emphasis supplied.) 80 C.J.S. Set-off and Counterclaim § 5, Equitable set-off.

In 47 Am.Jur., Set-off and Counterclaim, § 15, p. 718, it is put thusly: 'The availability of setoff, counterclaim, or recoupment depends upon the nature of the original or principal action, the nature and status of the claim asserted, and the status or relationship of the parties involved in the litigation.' 22 Fla.Law & Practice, p. 127, says equity has the power to allow or compel a setoff.

Contribution and alimony don't readily mix, as they are based on potentially conflicting public purposes--support of a wife versus fairness in joint Business dealing.

The Internal Revenue Code, at Sec. 6013(b)(3), Joint Returns, says that all liability on such returns with respect to the tax owed shall be Joint and several. This means as far as they are concerned they don't care which spouse pays. They just want payment. Contribution is a private concern between the parties.

To be more specific with reference to the instant case, setoff against alimony payments is generally frowned upon. 'The general rule is that it is the obligation of the divorced husband to pay the specified amounts according to the terms of the decree and he should not be permitted to vary these terms to suit his own convenience.' Mixson v. Mixson, S.C.1969, 171 S.E.2d 581. The court in that case refused to credit the husband's hospital payments and vacation trips for and with the children against the alimony he was obligated to pay.

Generally the test in determining what expenditures made by the husband should be credited toward alimony is whether the wife had the unrestricted right to determine how her alimony was disbursed. In other words, the husband can not just buy his ex-wife a new car and claim he owed her no alimony for a year. That would violate the rule that alimony is for support and the recipient should have control over how she spends this support money. Van Morkhoven v. Kleiner, La.App.1965, 180 So.2d 601. In our case the wife had no such control. The Van Morkhoven case was followed by Viser v. Viser, La.App.1966, 186 So.2d 661, which held that a husband could not credit payment for expenditures made by his wife during marriage against his alimony. Alimony was for support and was based on need and ability.

New York put this general idea very well in Palmer v. Palmer, N.Y.1966, 52 Misc.2d 610, 275 N.Y.S.2d 978, where it said,

'A husband may not set off against unpaid alimony and child support payable to his wife debts or claims owed him by her. * * * This rules applies with equal force to purchases or to payments made by the husband to third parties for the benefit of his wife or child for whose support a dollar amount was, as here, fixed in a matrimonial judgment or order * * *, at least without her Prior consent that they be instead or on account of the amount fixed. Absent such consent payments of this character must be regarded In addition to, and not in lieu of, the support fixed by the court or, indeed, by a separation agreement. * * *' (Emphasis supplied.)

An Alabama case, Ryan v. Ryan, 1960, 271 Ala. 243, 123 So.2d 102, serves to fortify the views expressed by New York.

'* * * (A) claim of the husband for money had and received is not available as a setoff to satisfy or extinguish the decree for alimony, because to allow such a setoff would be to deprive the wife of her maintenance and support.'

'* * * We do not consider that a decree for alimony in favor of the wife against the husband is a debt due from the husband to the wife within the meaning of this statute of setoff. The judgment or decree for alimony is duly imposed by law upon the husband to pay the amount of such alimony awarded for the support of the wife.

'Alimony is awarded upon considerations of equity and public policy. Since it is thus founded upon public policy and created in equity, it cannot be diverted from the purpose of support without public injury. * * * The courts which created this fund should see that it is not subjected to the payment of preexisting debts, whether claimed by the husband or by some third party.'

'Lest we be misunderstood we point out that The mere existence of mutual and independent demands does not authorize an equity court to set them off against each other, unless the allegations of the bill show an intervening equity, which renders it necessary for the protection of the demand sought to be set off.' (Emphasis supplied.)

Ryan v. Ryan, supra, is annotated in 100 A.L.R.2d 919. Various instances where setoffs were allowed or disallowed were mentioned therein.

Two states, New York and California, have analyzed our exact problem, a setoff of income taxes against alimony.

New York reached an interesting result in the recent case of Miller v. Miller, 1970, 62 Misc.2d 755, 310 N.Y.S.2d 18.

'* * * Apparently, under the circumstances herein, there were such items of indebtedness, namely, tax assessments, whether or not she had knowledge of the same. On that basis, therefore, since income tax liability is both joint and several, either party could have been held liable thereon. Therefore, I conclude that the plaintiff should be required to make a contribution in connection therewith, Particularly since she had taxable income those years which contributed to the tax liability.

'The reasoning and equity behind such conclusion is even more cogent when considered in the light of what would have been the legal situation in regard to the wife's right of contribution if she, in the first instance, had been the part (sic) against whom the tax authorities had made such deficiency tax assessments.

'The general rule is that one compelled to pay or satisfy the whole or bear more than his just share of a common burden or obligation upon which several persons are equally liable, or which they are bound to discharge, is entitled to contribution against the others to obtain from them payment of their respective shares.

'However, in order to fairly apportion such additional tax assessment as between the parties hereto, I direct that there be a hearing by way of an assessment on the said...