Gordon v. Gordon

• Decision Date: 21 May 1976
• Docket Number: 75--684,Nos. 75--683,s. 75--683
• Citation: 335 So.2d 321
• Parties: Edward F. GORDON, Appellant, v. Jeri Lee GORDON, Appellee. Edwin F. GORDON, Appellant, v. Jeri Lee GORDON, Appellee.
• Court: Florida District Court of Appeals

Page 321

335 So.2d 321

Edward F. GORDON, Appellant, v. Jeri Lee GORDON, Appellee.

Edwin F. GORDON, Appellant, v. Jeri Lee GORDON, Appellee.

Nos. 75--683, 75--684.

District Court of Appeal of Florida, Fourth District.

May 21, 1976.

Rehearing Denied Aug. 10, 1976.

Bruno L. Di Giulian of Di Giulian, Spellacy, Bernstein, Lyons & Sanders, Fort Lauderdale, for appellant.

Stuart & Walker, Fort Lauderdale, and Larry Klein, West Palm Beach, for appellee.

MAGER, Judge.

Upon examination of the briefs and record on appeal and upon due consideration of the oral argument we are of the opinion that the award of 'periodic' alimony in the sum of $1,000 per week for a period of 521 weeks was, under the totality of the circumstances of this case, an abuse of discretion. ¹

It should be recognized that the new concept of the marriage relation as reflected by the so called 'no-fault' divorce law and illustrated by rehabilitative alimony have not completely abrogated the time-honored concept of periodic alimony. Brown v. Brown, 30 So.2d 719 (Fla.App.1st 1974); Herbert v. Herbert, 304 So.2d 465 (Fla.App.4th 1974); see also Collins v. Collins, 323 So.2d 583 (Fla.App.3d 1975). But, regardless of nomenclature or semantics, any award must be based upon traditional considerations of need and ability. Collins v. Collins, supra.

In determining the nature and amount of the award due consideration must be given 'the value of the parties' estates, the parties' earning ability, age, health, station in life, duration of marriage, conduct of the parties, prior marriages, and relative responsibilities as to other dependents who have claims on the husband for sustenance or education.' See Gordon v. Gordon,192 So.2d 514 (Fla.App.1st 1966). See also McRee v. McRee, 267 So.2d 21 (Fla.App.4th 1972). In considering some of the factors bearing upon the needs of the wife such as the relatively short duration of the marriage (sixteen months), the age of the wife (thirty-three years), her good health and employment capabilities, we find inadequate support for an alimony award of $521,000 either under the 'new' or 'old' concepts; moreover, the standard of living established by the parties during the (brief) marriage does not serve to bolster such an award.

The husband's ability to pay (as reflected by an estimated net worth of $13,000,000) is unassailable; likewise irrefutable are the needs of the wife, cf. footnote 1. But there is not necessarily an ordained equality between these two factors, i.e. the enormity of the ability to pay does not dictate a corresponding need to receive an amount commensurate with such ability to pay. ² Other factors, some of which have been previously mentioned, cannot be overlooked and must be taken into consideration in ascertaining a spouse's needs. See Cummings v. Cummings, 330 So.2d 134 (Fla. opinion filed March 31, 1976).

We are not unmindful of the difficult task that often befalls the trial court in its endeavor to effectively correlate the respective spouses' needs and abilities. There are no exactitudes by which the need or ability factors can be precisely gauged because the marital circumstance in and of itself is wrought with variables and imprecision. From our evaluation of the appellate record we would respectfully observe that under the particular facts and circumstances of this case there was an abuse of discretion in the amount of the alimony award.

We find no abuse of discretion in the other awards made by the trial court, ³ except that the provision making child support payments binding upon the estate of the husband is improper and should be deleted. See Ulbrich v. Ulbrich, 317 So.2d 460 (Fla.App.4th 1975). Accordingly, the cause is remanded for reconsideration of the propriety of the award of alimony in accordance with the views expressed herein and for such other proceedings as are consistent herewith.

Inasmuch as the amount of the alimony award is to be remanded to the trial court it is unnecessary to resolve the issue of whether the alimony award was intended to be periodic or lump sum. It would seem helpful during the trial court's further consideration to clarify the exact nature of the alimony award inasmuch as the liability for periodic alimony terminates upon death unless the obligation is assumed as one payable out of the estate after death, see Bunn v. Bunn, 311 So.2d 387 (Fla.App.4th 1975); Ulbrich v. Ulbrich, supra; cf. Spears v. Spears, 148 So.2d 564 (Fla.App.1st 1963), whereas a lump sum award becomes fixed under the final decree of dissolution the liability for which would not terminate upon death of the husband. See Keller v. Belcher, 256 So.2d 561 (Fla.App.3d 1972); see also Horne v. Horne, 289 So.2d 39 (Fla.App.2d 1974).

AFFIRMED, in part; REVERSED, in part, with directions.

CROSS, J., concurs.

TROWBRIDGE, C. PFEIFFER, Associate Judge, concurs in part, dissents in part.

TROWBRIDGE, C. PFEIFFER, Associate Judge (concurring in part, dissenting in part).

I concur that the award of...