Massey v. Massey

• Decision Date: 12 December 1967
• Docket Number: No. 66--792,66--792
• Citation: 205 So.2d 1
• Court: Florida District Court of Appeals
• Parties: Iris MASSEY, Appellant, v. Arthur MASSEY, Appellee.

Page 1

205 So.2d 1

Iris MASSEY, Appellant, v. Arthur MASSEY, Appellee.

No. 66--792.

District Court of Appeal of Florida, Third District.

Dec. 12, 1967.

Rehearing Denied Jan. 3, 1968.

Charles H. Spooner, Richard H. W. Maloy, Coral Gables, for appellant.

Kessler, Massey & Beckerman, Coral Gables, Milton M. Ferrell, Miami, for appellee.

Before CHARLES CARROLL, C.J., and HENDRY, J., and DURDEN, WILLIAM L., Associate Judge.

PER CURIAM.

This divorce suit involves a lawyer of high professional standing with some fifteen years' experience in the practice and as a municipal judge. As a result of the final decree a divorce was granted to the wife and custody of the three boys awarded to her. The boys are approximately thirteen, eleven and eight years of age. The appellant has raised only two issues in this appeal and our study of the record and the briefs compels us to conclude that the decree should be modified on one point and reversed on the other.

The court awarded $150 per month as alimony and $150 per month support for each of the three children for a total amount of $600.

The record reflects several things with regard to the needs and abilities of the parties. The first is that, like most Americans in similar situations, they were lving somewhat beyond their means, and yet they had not accumulated a large backlog of debts. It seems to be fairly well established that the monthly expenses of running the house ranged between $1,300 and $1,400 per month. This did not include the personal expenses of the husband. The husband has demonstrated the ability to maintain this family at that economic level in similar situations, they were living cost of providing such a standard will not diminish much by reason of his absence from the home. Most of the expenses of maintaining the home will remain at almost the same level. Nevertheless, it would be foolhardy to assume that he could and unjust to require him to maintain precisely that standard. It is difficult enough to stretch one income to provide one home and next to impossible to expand it to a degree to where it can provide two homes on the same standard as the joint home was established.

Balancing these equities and giving due consideration to the rights and responsibilities of both parties it is our conclusion that the amount awarded is so low as to constitute an abuse of discretion by the trial court and should therefore be modified. This point is adequately covered by the opinion of this court in Klein v. Klein, Fla.App.1960, 122 So.2d 205, wherein it is stated:

'Where the head of a family by supplying money over a period of years, establishes and maintains a standard of living on a certain financial level, it may be inferred, in the absence of a sufficient showing to the contrary, that he has a source of income or financial status sufficient to enable him to continue to maintain his spouse in substantially the same manner of living.'

In his complaint the plaintiff husband listed the monthly expenses aggregating $750 which he alleged the defendant wife had informed him were required for support of herself and the children, ¹ and in his prayer stated it was 'his wish,' and that he be ordered to pay alimony and child support in that amount. In addition, the husband prayed that the decree require that he make other payments, as follows:

'That the plaintiff be required to pay all the medical, hospital, and dental expenses of the three minor children of the parties; further, that the plaintiff be required to purchase the clothing for the three minor children of the parties; further, that the plaintiff be required to create an educational fund for the minor children of the parties, providing his financial position improves; and, furthre, that the plaintiff be required to pay the real estate and property taxes on the homestead of the parties.'

The residence premises owned by the parties as tenants by the entirety was subject to a mortgage in the amount of $21,000. As to that property, the plaintiff prayed that it remain in the names of the parties, that the wife be given the right to live therein with the children until such time as she should remarry, and that thereafter the premises be sold and the proceeds divided between the parties. The trial judge awarded the husband's interest in the residence property to the wife, as lump sum alimony. Since it was intended that the wife and the children would reside in the home for an indefinite period, the practical effect of awarding the husband's interest to the wife was to relieve the husband of his owner's obligation to pay the taxes thereon and maintain the property, and to shift such obligations wholly to the wife.

In the circumstances presented the decree should have provided for payment of alimony and child support in the amount which the plaintiff had recognized as proper for their needs and had offered to pay, that is, $750 a month. The decree also should have required the husband to pay medical, hospital and dental expenses of the children, purchase their clothing and pay the taxes on the residence property while resided in by the wife and the children and prior to the wife's remarriage. Upon remand, the decree...