Price v. Price, s. 79-1158

• Decision Date: 21 October 1980
• Docket Number: 79-1322,Nos. 79-1158,s. 79-1158
• Citation: 389 So.2d 666
• Parties: Michele PRICE, Appellant, v. John W. PRICE, Appellee. John W. PRICE, Appellant, v. Michele PRICE, Appellee.
• Court: Florida District Court of Appeals

Page 666

389 So.2d 666

Michele PRICE, Appellant, v. John W. PRICE, Appellee.

John W. PRICE, Appellant, v. Michele PRICE, Appellee.

Nos. 79-1158, 79-1322.

District Court of Appeal of Florida, Third District.

Oct. 21, 1980.

Rehearing Denied Nov. 14, 1980.

Floyd, Pearson, Stewart, Richman, Greer & Weil and Bruce A. Christensen, and Ray H. Pearson, Miami, for John W. Price.

Sinclair, Louis, Siegel & Heath and John L. Zavertnik, Miami, for Michele Price.

Before HUBBART, C. J., and BASKIN and DANIEL S. PEARSON, JJ.

BASKIN, Judge.

Michele Price seeks to overturn portions of the final judgment of dissolution pertaining to alimony and expenses in connection with maintaining her home. In a consolidated appeal, her husband, John Price, challenges provisions requiring him to pay court costs and a portion of his former wife's attorneys' fees. The wife has cross-appealed. We affirm in part and reserve in part.

The Price marriage lasted seven years. No children were born from this marriage, but John has four children from his former marriage, and Michele has a child from her former marriage. The parties were financially able to enjoy a high standard of living. Michele, forty-four, had been a stewardess for over twenty years. Her annual salary had increased to approximately $23,000 at the time of the hearing. She continued to work for the airlines and enjoyed medical, pension, and other benefits. John, fifty-nine, had a net worth of over one million dollars and inherited bank stock worth $750,000, which was a majority interest in the bank. His stock returned an annual dividend of $25,000. His yearly income is $40,000.

The trial court awarded Michelle no permanent alimony, finding she was well able to provide for her own living expenses but awarded her $24,000 lump sum alimony payable in twenty-four installments. In addition, the court ordered the marital home sold with the one-half interest in the home awarded to Michelle. The parties were to bear equally the expense of the mortgage payments and property taxes pending the sale. The court also ordered John to pay $7,500 of Michelle's $10,000 attorneys' fees.

The wife cites as error the trial court's failure to award her permanent alimony. She contends she is unable to maintain the standard of living set by the marriage. She complains, in addition, of the court's failure to retain jurisdiction to determine her needs at the expiration of the installment payments. She claims the $24,000 is inadequate when her needs and contributions to the marriage are taken into consideration. The wife also asserts as error the trial court's failure to reimburse her for paying her husband's share of the expenses on the home prior to its sale, payments she made from her temporary alimony.

We find no abuse of discretion in the alimony award determined by the court. The supreme court clarified the role of the trial court in Canakaris v. Canakaris, 382 So.2d 1197 (Fla.1980). When the action of the trial court is discretionary, appellate courts must consider whether the trial court action was arbitrary, fanciful, or unreasonable. "If reasonable men could differ as to the propriety of the action taken by the trial court, then the action is not unreasonable and there can be no finding of an abuse of discretion." Canakaris v. Canakaris, supra at 1203. The alimony award entered by the trial judge may not be disturbed unless his decision failed to meet the "reasonable" test.

In exercising its broad discretion concerning whether to award lump sum or permanent periodic alimony, the trial court was required to consider all circumstances in order to insure "equity and justice between the parties." § 61.08, Fla.Stat. (1977). Permanent periodic alimony awards must be predicated upon consideration of needs and abilities, taking into account the wife's earnings, abilities, age, health, and education, in light of the duration of the marriage and the standard of living of the parties. Canakaris v. Canakaris, supra at 1201-02. Under the circumstances of this case, reasonable men could differ as to the propriety of the action taken by the trial court. We, therefore, affirm the award.

We find no abuse of discretion in the court's failure to retain jurisdiction to enter periodic alimony at the expiration of the lump sum installments. Although retention of jurisdiction is permitted, Canakaris v. Canakaris, supra ; Hyatt v. Hyatt, 315 So.2d 11 (Fla. 3d DCA 1975); Langston v. Langston, 257 So.2d 625 (Fla. 3d DCA 1972), it is not required. Elkins v. Elkins, 287 So.2d 119 (Fla. 3d DCA 1973); Poe v. Poe, 263 So.2d 644 (Fla. 3d DCA 1972). Cf. Greene v. Greene, 256 So.2d 258 (Fla. 3d DCA 1972) (where alimony provisions would probably terminate at a time when the wife had no other income).

We do find error, however, in the trial court's failure to credit the wife for the interest on mortgage payments she made under the terms of the final judgment. The judgment states:

Prior to the closing of the sale of the former marital home, the Petitioner/Wife shall be entitled to occupy the same should she so choose. If she occupies the same, she shall pay and keep current the mortgage and be responsible for her own expenses for utilities and the like. From the net proceeds at the closing on the sale of the home the Petitioner/Wife shall be reimbursed for an amount equal to one-half of the principal payments she has made on the mortgage from the June 15, 1979 (date) to the date of sale, which sum represents the payment of principal for the undivided one-half interest of the Respondent in...