Clemson v. Clemson
| Decision Date | 30 June 1989 |
| Docket Number | No. 88-01645,88-01645 |
| Citation | 14 Fla. L. Weekly 1587,546 So.2d 75 |
| Parties | 14 Fla. L. Weekly 1587 Larry CLEMSON, Appellant, v. Cathleen Carol CLEMSON, Appellee. |
| Court | Florida District Court of Appeals |
Thomas H. McGowan, St. Petersburg, for appellant.
Thomas P. Colclough of Wallace, Finck, Boake & Colclough, St. Petersburg, for appellee.
The husband appeals from a final judgment of dissolution of marriage. He challenges the trial court's awards of lump sum and periodic permanent alimony to the wife and its determination that she is entitled to recover her reasonable attorney's fees. We affirm in part and reverse in part.
A long personal relationship between the parties culminated in matrimony in 1978, a second marriage for each. The husband is age 51; the wife is age 40. No children were born of the marriage. During most of their marriage, both spouses worked, and most of their assets were held jointly. In addition to petitioning for dissolution, the husband requested that the court make an equitable distribution of the couple's assets. The wife sought alimony, suit money, and costs.
In its final judgment of dissolution, the trial court ordered the husband to pay the wife permanent alimony and reasonable attorney's fees and attempted to accomplish an equitable distribution of the parties' assets. The court awarded the husband title to a jointly owned residence in South Carolina, which the parties agreed had a net value of between $32,000 and $33,000. The husband was vested with complete ownership of his Keough and Individual Retirement Accounts valued at approximately $20,000, and his $3,000 individually owned savings account. He was also awarded ownership of trucks from Economy Maintenance, a business venture the parties owned in Michigan. Finally, the husband was awarded the Rusty Nail Bar, a going business in Pinellas County which the parties had operated as a partnership. The court made no finding as to the value of the bar; however, the record reflects that the parties and their expert witnesses testified it was worth between $35,000 and $165,216.04.
The wife was awarded $250 per week permanent alimony and proceeds from the sale of a jointly owned Michigan residence. She was awarded $47,573.75 proceeds from this sale since she was previously allowed to withdraw $5,000 from such proceeds. The husband was required to pay outstanding marital debts, and as a further equitable distribution, the wife was awarded $65,233.45 in lump sum alimony payable $1,000 per month with interest at the rate of 10%. The court retained jurisdiction to award the wife costs and reasonable attorney's fees. 1
The parties sharply dispute the value of the marital assets. In sum, the husband claims the wife has received an equitable distribution of net assets worth $135,000 while he has received assets totalling only $85,000. The wife, on the other hand, claims the husband received assets valued at $223,216 while those she has received are worth only $112,807.
We first address the trial court's award of permanent alimony to the wife. The essential considerations here, of course, are the wife's needs and the husband's ability to respond to those needs. Canakaris v. Canakaris, 382 So.2d 1197 (Fla.1980). Given the wife's age, work experience, and the fact that the parties were married only nine years, the husband contends that it was improper for the court to award permanent alimony. In evaluating the wife's needs, we must, however, consider not only these factors but also the wife's health, ability to work, and the standard of living the parties enjoyed during their marriage. Id.
While the wife had a history of employment, testimony revealed that she was in a debilitated physical and emotional condition, making it unlikely that she would soon be gainfully employed or be a candidate for rehabilitative alimony. The parties had enjoyed a middle-income standard of living during their marriage, and the wife would be unable to maintain such standard without continuing financial assistance from the husband. The wife was without income, and there was evidence from which the judge could, and apparently did, conclude that the husband's business income was substantial. Since there is substantial, competent evidence to support the trial judge's award, we find no abuse of discretion and accordingly, we affirm the award of permanent alimony. Id. Any substantial change in circumstances which may occur in the future can, of course, be brought to the attention of the court for modification of this award. § 61.14(1), Fla.Stat. (1988).
Similarly, we find no abuse of discretion in the trial judge's award of attorney's fees to the wife. A court may award attorney's fees after consideration of the financial resources of both parties and a finding that one spouse has a superior financial ability to pay the fees. § 61.16, Fla.Stat. (1987); Hudgens v. Hudgens, 411 So.2d 354 (Fla. 2d DCA 1982). We find substantial, competent evidence to support the wife's entitlement to recover reasonable attorney's fees in light of the fact that the husband has steady income from the operation of the Rusty Nail bar, while the wife is unemployed and is receiving no income.
We now address the award of lump sum alimony which the court described as "a further equitable distribution of the assets accumulated by the parties." The awarding of lump sum alimony is an appropriate means to ensure an equitable distribution. Canakaris. We think the judge was correct in attempting to achieve a near balance of the parties' marital assets. While equitable distribution does not necessitate equal distribution, it is generally a good starting point. Moore v. Moore, 543 So.2d 252 (Fla. 5th DCA 1989). It is basic that all marital assets be considered in a plan of equitable distribution. Macaluso v. Macaluso, ...
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