McClung v. McClung

• Court: Florida District Court of Appeals
• Writing for the Court: LEHAN
• Citation: McClung v. McClung, 465 So.2d 637, 10 Fla. L. Weekly 758 (Fla. App. 1985)
• Decision Date: 22 March 1985
• Docket Number: No. 84-675,84-675
• Parties: 10 Fla. L. Weekly 758 Gene E. McCLUNG, Appellant, v. Jane V. McCLUNG, Appellee.

Page 637

465 So.2d 637

10 Fla. L. Weekly 758

Gene E. McCLUNG, Appellant, v. Jane V. McCLUNG, Appellee.

No. 84-675.

District Court of Appeal of Florida Second District.

March 22, 1985.

Carolyn M. Fields of de la Parte & Gilbert, P.A., Tampa, and Manuel M. Garcia, Tampa, for appellant.

Seymour A. Gordon of Gay & Gordon Attorneys, P.A., and James C. Wallace, III, St. Petersburg, for appellee.

LEHAN, Judge.

The husband appeals from the amended Final Judgment in this dissolution of marriage case, contending that the trial court erred in distributing assets. We reverse.

The marriage had existed for thirty-eight years. The parties' two children are emancipated. At the time of the final judgment the husband was receiving a retirement pension, a military disability pension, and earnings from two sources of employment. His total income was approximately $2900 per month. The wife was working as a receptionist at a beauty shop which she owned. She testified that the shop never made a profit and that she had never drawn a salary from the shop. She receives monthly social security disability income of $262. She had come to the marriage with a high school education and worked as a typist at the beginning of the marriage until she became a mother. Each party's health was impaired, the husband's from lupus and high blood pressure and the wife's from rheumatoid arthritis, hepatitis, and high blood pressure. The marital home was the principal asset.

The amended Final Judgment awarded the wife, inter alia, permanent periodic alimony in an amount equalling "50 percent of the combined total net incomes of the Husband and Wife," lump sum alimony of the remainder of the proceeds from the sale of the marital home after certain of the husband's debts had been satisfied, and fifty percent of the husband's State of Florida retirement benefits. Also, the husband was ordered to maintain life insurance payable to the wife as primary beneficiary with an amount of death benefits equalling or exceeding those available at the date of the final hearing.

The husband contends there were four errors: (1) awarding the wife permanent periodic alimony based upon the foregoing formula; (2) requiring that the husband maintain the wife as a primary beneficiary on the life insurance policies; (3) failing to give the husband credit for payments made by him on the jointly owned marital home after the parties' separation and prior to its sale; and (4) awarding the wife one-half of the husband's accrued state retirement benefits. We agree, at least in part, with all four contentions.

As to the first contention, the husband argues that the formula computation of permanent alimony is inequitable because the husband would thereby become obligated to pay an increased amount of alimony if the wife's net income increases even though there is no increase in the husband's ability to pay or the wife's needs. Also, under that formula if the husband's income increases, the wife's alimony would increase even if the wife's needs do not increase. We conclude that the use of the formula was error. We do not favor the use of a formula to determine the amount of alimony for the future when, as here, there is no evidentiary basis for the present determination of relevant future events. See Lewis v. Lewis, 450 So.2d 1123 (Fla. 2d DCA 1983), petition for review denied, 451 So.2d 849 (Fla.1984); Ramsey v. Ramsey, 431 So.2d 258, 259 (Fla. 2d DCA 1983).

As to the second contention, it is not clear what was intended in the requirement that the husband keep the wife as the primary beneficiary on the life insurance policies. If the intent was to award post mortem alimony, the award was invalid. Mahan v. Mahan, 415 So.2d 146 (Fla. 2d DCA), petition for review denied, 424 So.2d 762 (Fla.1982); Putman v. Putman, 154 So.2d 717 (Fla. 3d DCA 1963). Cf. Aldrich v. Aldrich, 163 So.2d 276 (Fla.1964) (alimony obligation ends with obligor's death). If the intent was to award lump sum alimony with premium payments to be permanent periodic alimony, the award was valid. Noe v. Noe, 431 So.2d 657 (Fla. 2d DCA 1983). We therefore, consistent with Noe, remand for a determination of the trial court's intent. We do so with the proviso that if the trial court determines that the life insurance requirement constitutes lump sum...