McGarry v. McGarry, 70-259

Decision Date02 April 1971
Docket NumberNo. 70-259,70-259
Citation247 So.2d 13
PartiesNancy McGARRY, Appellant, v. Peter McGARRY, Appellee.
CourtFlorida District Court of Appeals

Leonard Lubin, St. Petersburg, for appellant.

David F. Patterson, of Bryson & Patterson, St. Petersburg, for appellee.

PIERCE, Chief Judge.

Nancy McGarry, plaintiff below, appeals a final judgment of divorce, directing her assignments of error to the sufficiency of the support provision and to the duration of the award of alimony.

The final judgment granted Nancy an absolute divorce and awarded her the custody of the two minor children of the ages of fifteen and thirteen. It ordered Peter, defendant below, to pay her $210.00 per month for each child, and $500.00 per month as alimony for a period of two years. After two years Peter was ordered to pay Nancy an amount equal to her gross earnings on a monthly basis, not to exceed $600.00 or to be less than $200.00 per month. It ordered that all payments for alimony should terminate when Peter was no longer required to pay child support or when the younger child reached twenty-one years of age, and that all alimony payments should terminate upon the death or remarriage of Nancy. The judgment further granted Nancy and the children the exclusive use and occupancy of the home until Peter was no longer required to make support payments or until the younger child reached twenty-one, and that during such time it would be Nancy's responsibility to bear all costs of mortgage payments, taxes and insurance on the residence. Nancy was given the exclusive use and possession of the Ford station wagon, and Peter was ordered to pay Nancy's attorney and Court costs. The Court retained jurisdiction of the cause and the parties for the entry of any future orders respecting the care, custody and support of the children.

In our opinion, Nancy has failed to demonstrate reversible error as to the amount of alimony and child support awarded to her. The evidence regarding the needs of the wife and children was somewhat conflicting, but the record reveals that the Chancellor fully considered the testimony and determine the amount to which the wife was entitled.

It has long been the rule that the amount of child support and alimony is within the sound discretion of the Chancellor. Chaires v. Chaires, Fla.1864, 10 Fla. 308; Gregory v. Gregory, Fla.App.1968, 208 So.2d 483. As stated in Rogoff v. Rogoff, Fla.App.1959, 115 So.2d 456, 458:

'It is well settled that the matters of allowance of alimony and child support are within the sound judicial discretion of the chancellor, based on the evidence presented, and due consideration of the needs of the recipients and the extent of the obligor's ability to meet these burdens. (Citations omitted) Such awards should not be disturbed unless they represent an abuse of discretion or are patently erroneous on the record; and an appellant carries the responsibility in an appellate court of clearly demonstrating such error.'

See Olsen v. Olsen, Fla.App.1965, 172 So.2d 276; Burnett v. Burnett, Fla.App.1967, 197 So.2d 854.

As to the termination of the alimony payments, it is settled law in this State that the Chancellor may consider the divorced wife's ability to be employed and earn a living as a relevant material factor in determining her need for alimony. Kahn v. Kahn, Fla.1955, 78 So.2d 367; Heller v. Heller, Fla.App.1963, 151 So.2d 35; Whitehead v. Whitehead, Fla.App.1966, 189 So.2d 397; 10 Fla.Jur., Divorce and Annulment, § 166.

In the case sub judice the parties had been married more than sixteen years; the wife was thirty-seven years of age, and had two years of college education. She worked the first year of her marriage to the defendant, but had not worked since that time. At the time of the divorce she had been receiving psychiatric care for over five years. In...

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7 cases
  • Steinhauer v. Steinhauer, 70-574
    • United States
    • Florida District Court of Appeals
    • August 17, 1971
    ...the husband's capacity to meet such needs are all relevant material factors in determining the wife's need for alimony. McGarry v. McGarry, Fla.App.1971, 247 So.2d 13; Brown v. Brown, Fla.1965, 84 So.2d 311; Platt v. Platt, Fla.App.1958, 103 So.2d 253; see also 10 Fla.Jur., Divorce, pp. 569......
  • Maissen v. Maissen
    • United States
    • Florida District Court of Appeals
    • June 29, 1977
    ...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 The appellant/wife is clearly in need of lump sum alimony. It would ......
  • Kennedy v. Kennedy
    • United States
    • Florida Supreme Court
    • November 20, 1974
    ...wife's age and potential for employment are relevant factors which may be considered in assessing her need for alimony. McGarry v. McGarry, Fla.App.1971, 247 So.2d 13. Lump sum alimony may be awarded to the wife instead of permanent periodic alimony where a lump sum award is justified for r......
  • McRee v. McRee, 71--781
    • United States
    • Florida District Court of Appeals
    • August 3, 1972
    ...wife's age and potential for employment are relevant factors which may be considered in assessing her need for alimony. McGarry v. McGarry, Fla.App.1971, 247 So.2d 13. Lump sum alimony may be awarded to the wife instead of permanent periodic alimony where a lump sum award is justified for r......
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