Claughton v. Claughton

• Court: Florida District Court of Appeals
• Writing for the Court: CHARLES CARROLL
• Citation: Claughton v. Claughton, 361 So.2d 752 (Fla. App. 1978)
• Decision Date: 27 June 1978
• Docket Number: No. 77-2620,77-2620
• Parties: Edward N. CLAUGHTON, Jr., Appellant, v. Beverly A. CLAUGHTON, Appellee.

Page 752

361 So.2d 752

Edward N. CLAUGHTON, Jr., Appellant, v. Beverly A. CLAUGHTON, Appellee.

No. 77-2620.

District Court of Appeal of Florida, Third District.

June 27, 1978.

Rehearing Denied Sept. 6, 1978.

Sibley, Giblin, Levenson & Glaser and Marion E. Sibley, South Miami, for appellant.

Paige & Catlin and H. James Catlin, Jr., Miami, for appellee.

Before HENDRY and HUBBART, JJ., and CHARLES CARROLL (Ret.), Associate Judge.

CHARLES CARROLL, Associate Judge.

The appellant, who was the respondent below in a proceeding for dissolution of marriage, appeals from an order denying his motion for partial summary judgment.

The determinative question presented by this appeal is whether, after a dissolution of marriage judgment which reserved jurisdiction to determine issues relating to alimony, custody, child support, and property rights, the court initially can make an award of alimony to the wife after she has remarried. By the order appealed from the trial court concluded that was permissible. We hold that ruling was error, and reverse on the authority of Carlton v. Carlton, 87 Fla. 460, 100 So. 745 (1924). See, apparently contra, Seale v. Seale, 350 So.2d 96 (Fla. 1st DCA 1977).

The appellant, Edward N. Claughton, Jr., herein referred to as the husband, and Beverly A. Claughton, herein referred to as the wife, were married on December 22, 1951. They separated in September of 1975, and in February of 1976 the wife petitioned for dissolution of the marriage.

A temporary support order was entered, requiring the husband to pay $2,500.00 per month to the wife "until further order of the court" as "alimony and support for herself and the minor children", and requiring the husband to pay mortgage payments, taxes and insurance on the marital home owned by the parties as tenants by the entirety and to pay a certain amount as temporary attorney's fee.

The husband made the ordered temporary support payments prior to the judgment of dissolution, and thereafter continued to make such payments until the wife married one William T. Mixson, a doctor. The remarriage of the wife on July 1, 1977 occurred before any hearing was held on the issues relating to alimony and prior to any permanent alimony having been granted.

On behalf of the husband his attorney wrote to the attorney for the wife, on July 5, 1977, stating that because of the remarriage of the wife the husband no longer was obligated to pay the temporary alimony, and that the wife would be expected to pay one-half of the home mortgage payments. The letter enclosed a payment by the husband for child support for a stated period and an amount for mortgage payment. The wife's attorney answered by letter, requesting authority for the wife to accept such payments without prejudice, and contending therein that notwithstanding remarriage of the wife the husband remained obligated to pay temporary alimony and that the wife would be entitled to receive "lump sum alimony" as and when the court should make a determination and allowance thereof. The husband's attorney replied, authorizing acceptance of such payments without prejudice, and stating the letter he received had been forwarded to the husband who was out of the city temporarily.

Shortly thereafter, the wife filed a motion seeking to have the husband cited for contempt for failure to pay temporary alimony. Her motion attached copies of above-mentioned letters which had been exchanged between the attorneys; recited that she had remarried on July 1, 1977; and alleged she was entitled to continue to receive temporary alimony and that the issues as to her rights to alimony and property rights had not yet been determined by the court.

The husband filed a response to the motion for contempt, contending he was not obligated to continue paying temporary alimony after remarriage of the wife and that he was not required to pay more than one-half of the mortgage payments on the residence equally owned by the parties, and praying for entry of an order consistent with those contentions. Thereafter the husband filed his motion seeking entry of a summary judgment holding him to be relieved of obligation for alimony. Therein he alleged that in petitioning for dissolution of marriage the wife had sought permanent alimony; that the judgment of dissolution had reserved jurisdiction to resolve certain matters including alimony; that the wife had remarried on July 1, 1977, and was being supported by her new husband who, with her, was residing in the residence owned by the parties; and seeking summary judgment that because of her remarriage, as a matter of law, the wife was not entitled thereafter to an award of alimony. Opposed to the husband's motion for summary judgment, was the wife's contention in her reply thereto and in her contempt motion that notwithstanding her remarriage she was entitled to subsequent award of "lump sum alimony". After hearing thereon, the husband's motion for such partial summary judgment was denied, and he appealed.

Necessarily inherent in the denial of the husband's motion was a holding by the trial court that although the wife had remarried it would be proper to make an award of alimony to her. That ruling was contrary to the law that alimony may not be awarded to a wife after she remarries following divorce, as recognized and pronounced in Carlton v. Carlton, supra.

This case does not involve a situation where incident to a dissolution of marriage a wife who has been awarded alimony which is ordered to be paid in lump sum payments thereafter remarries. Alimony payable in lump sum which is awarded to the wife prior to her remarriage is vested, and will not be affected by her subsequent remarriage. ¹ Yandell v. Yandell, 39 So.2d 554 (Fla.1949); Latta v. Latta, 135 So.2d 443 (Fla.3d DCA 1961).

When a wife has been awarded alimony payable in periodic installments, her remarriage terminates her entitlement thereto. Friedman v. Schneider, 52 So.2d 420, 421 (Fla.1951); Reese v. Reese, 178 So.2d 913 (Fla.2d DCA 1965). The reason therefor is that a right of a wife to receive alimony is based on the husband's duty of support existing during coverture, and when she has remarried and is being supported by another, the husband no longer has such duty.

On the argument of this appeal counsel announced that by agreement of the parties payment of temporary alimony by the husband had been terminated, and that the issues relating to custody of the minor children and as to the amount of child support to be paid by the husband had been settled by the parties.

Although conceding that after her remarriage the court could not award her permanent alimony if it was ordered to be paid in periodic installments, the appellee argues that after she has remarried the court lawfully can award her permanent alimony in the form of lump sum alimony. We cannot agree.

The appellee treats alimony as though there were two distinct kinds of permanent alimony, that is, periodic alimony and lump sum alimony. Such is not the case. Under the applicable statute authorizing the granting of alimony (Section 61.08, Florida Statutes (1975)), the two kinds of alimony which are separately designated therein are rehabilitative alimony and permanent alimony. That section states that in a proceeding for dissolution of marriage "the court may grant alimony to either party, which alimony may be rehabilitative or permanent in nature". The section continues by stating: "In any award of alimony, the court may order periodic payments or payments in lump sum or both". The statute does not provide for different types of "permanent" alimony. It authorizes allowance of "alimony". When the allowance is of alimony, permanent in nature, the court can order either or both of two methods of payment of such permanent alimony. For example, in an instance where the court awards a wife permanent alimony and for part thereof orders payment in designated periodic installments of stated amount, and also orders a designated amount to be paid by a lump sum payments or payments, the alimony is the same, and only the payment methods differ. The distinction resulting from the two payment methods is that while subsequent remarriage of the wife will terminate the ordered periodic payments, the portion of the alimony which is required to be paid by lump sum payments is vested and not affected by remarriage of the recipient.

The appellee argues that while permanent alimony which is ordered to be paid in periodic installments is allowed for support of a wife based on a husband's obligation for her support, permanent alimony which is ordered to be paid by lump sum payment or payments is not predicated on the...