Maissen v. Maissen

• Decision Date: 29 June 1977
• Docket Number: No. 76-1397,76-1397
• Citation: Maissen v. Maissen, 347 So.2d 798 (Fla. App. 1977)
• Parties: Joan L. MAISSEN, Appellant, v. James M. MAISSEN, Appellee.
• Court: Florida District Court of Appeals

Page 798

347 So.2d 798

Joan L. MAISSEN, Appellant, v. James M. MAISSEN, Appellee.

No. 76-1397.

District Court of Appeal of Florida, Second District.

June 29, 1977.

Rehearing Denied July 26, 1977.

L. Norman Vaughan-Birch of Kirk, Pinkerton, Sparrow, McClelland & Savary, Sarasota, for appellant.

C. Eugene Jones of Ginsburg & Byrd, Sarasota, for appellee.

OTT, Judge.

This case and Lauck v. Maissen, 347 So.2d 795 (Fla. 2d DCA 1977) (Case No. 76-761, Opinion filed June 29, 1977) arise out of a common set of facts and circumstances. Reference should be made to Lauck v. Maissen for a fuller statement of the facts.

In the final judgment of dissolution of marriage, the lower court ordered child support of $200 a month for the couple's only child; granted the wife the customary conditional exclusive use and possession of the jointly owned marital home with the requirement that the husband pay one-half of the taxes, mortgage payments and insurance thereon; and granted the wife, as lump sum alimony, all of the husband's right, title and interest in the Dorado Ranch property. The wife's father had made a gift of an undivided 55 percent of the ranch real property to the husband and wife as tenants by the entirety. (The wife owned the remaining 45 percent by a previous gift in 1969.) The gift to the husband and wife in 1973 occurred approximately two years prior to the institution of this dissolution action.

Upon the husband's motion for new trial, rehearing and correction of judgment, the lower court was persuaded that the law would not permit the lump sum alimony award. It thereupon deleted the award. The final judgment was amended in that respect only.

Appellant/wife contends, and we agree, that the award of the appellee/husband's interest in the ranch was a proper exercise of judicial discretion.

The parties were married for 20 years. The wife had not been employed during the marriage. At the time of dissolution, the wife was 46 years old. She is a college graduate with a liberal arts degree, but has no specific training in an employable skill. Her net worth prior to judgment was in the neighborhood of $290,000. Of this, approximately $70,000 (coming from her parents) is invested in securities, the return from which is about $5,000 annually. The remainder is made up of her 721/2 percent undivided interest in the ranch land which, according to the husband (ranch manager), is productive of little or no profit.

The 54 year old husband admitted to a net worth prior to judgment of at least $175,000 made up largely of assets out of the United States. The husband had transferred substantial sums of money out of the United States prior to and immediately subsequent to the divorce for his own purposes. His 271/2 percent interest in the ranch land was his only substantial asset (or source of income) in this country.

Implicitly, all the parties seem to agree that the maximum potential for the ranch lies in its essential preservation and continuation for the immediate future.

In establishing the amount of alimony, the primary criteria are the husband's ability to pay and the needs of the wife. Firestone v. Firestone, 263 So.2d 223, 226 (Fla.1972). In reaching a determination of a husband's "ability to pay", both the husband's income and capital assets should be considered. Firestone, supra.

In Calligarich v. Calligarich, 256 So.2d 60, 61 (Fla. 4th DCA 1971) the court held that "(l)ump 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." See Kennedy v. Kennedy, 303 So.2d 629 (Fla.1974); Cann v. Cann, 334 So.2d 325 (Fla. 1st DCA 1976). In setting lump sum alimony, the wife's age and employability are factors to be considered. McGarry v. McGarry, 247 So.2d 13 (Fla.2d DCA 1971); Steinhauer v. Steinhauer, 252 So.2d 825 (Fla. 4th DCA 1971).

The appellant/wife is clearly in need of lump sum alimony. It would seem unlikely that the wife could secure high paying employment. While perhaps her employment prospects are not "dismal", see Patterson v. Patterson, 315 So.2d 104, 105 (Fla. 4th DCA 1975), there are certainly no "abundant opportunities for self-support." See Kahn v. Kahn, 78 So.2d 367, 368 (Fla.1955). Moreover, even if the husband's share of the Dorado Ranch property is awarded to her as lump sum alimony she will not be living a "life of veritable ease with no effort and little incentive on her part to apply such talent as she may possess to making her own way." Kahn, supra. In essence, there is a significant disparity in the present earning ability of the husband and wife. Simply stated, his prospects are much brighter. See Lash v. Lash, 307 So.2d 241 (Fla. 2d DCA 1975); Schultz v. Schultz, 290 So.2d 146 (Fla. 2d DCA 1974).

The fact that the wife's assets are greater than those of her former husband does not bar an award of lump sum alimony to her. See Gordon v. Gordon, 204 So.2d 734 (Fla. 3d DCA 1967); But cf., Kennedy, supra ; Steinhauer, supra. In Gordon, the wife had a net worth of approximately $90,000 while the husband had a net worth of approximately $60,000. In awarding lump sum alimony the court held that a divorced woman should not be required to "deplete her capital assets to maintain her standard of living." 204 So.2d at 735.

Steinhauer and Kennedy are distinguishable. In Steinhauer the court found that the wife's income and assets exceeded those of her husband. The court reasoned that the award of the entire one-half of the husband's interest in the marital domicile to the wife as lump sum alimony would not be consistent with the parties' financial situations. Important to the court was the finding that the wife's contributions were not sufficient to create a special equity for her in the marital dwelling. In contrast, the instant case illustrates a situation in which the wife has been the source of their only major asset in this country the very property to be awarded as lump sum alimony.

Kennedy is distinguishable in that the wife therein was quite prosperous and most capable of supporting herself. Simply stated, she had no need. The court found the fact that her husband was quite wealthy (much wealthier than she) to be irrelevant.

We are cognizant of the "new concept of the...