Robbie v. Robbie

• Decision Date: 18 December 1991
• Docket Number: No. 91-1931,91-1931
• Citation: 591 So.2d 1006
• Parties: Dwyn Daniels ROBBIE, Appellant, v. Joseph Michael ROBBIE, Appellee. 591 So.2d 1006, 17 Fla. L. Week. D3
• Court: Florida District Court of Appeals

Page 1006

591 So.2d 1006

Dwyn Daniels ROBBIE, Appellant, v. Joseph Michael ROBBIE, Appellee.

No. 91-1931.

591 So.2d 1006, 17 Fla. L. Week. D3

District Court of Appeal of Florida Fourth District.

Dec. 18, 1991.

Shelley M. Mitchell, Fort Lauderdale, for appellant.

Alice Elizabeth Warwick of Warwick, Reynolds & Cope, P.A., Coral Gables, for appellee.

FARMER, Judge.

Wife filed a petition for dissolution and included a prayer for temporary alimony, attorneys' fees [suit money] and costs. Financial affidavits from both parties were submitted to the trial court and a hearing was held on May 22, 1991.

The parties have been married for nearly nine years and have no children. Although she has an undergraduate degree in communications and has completed about one and a half years of law school, wife did not work during the marriage. Husband was employed in his family's business through most of the marriage but was removed from his position in July 1990, some seven months before the parties separated, as a result of a shareholder dispute.

While technically unemployed at the time of the hearing, husband owns 9.5% of Miami Sports Corporation, which in turn owns one-half of Robbie Stadium Corporation, one-half of Robbie Concession Corporation, one-half of Robbie Scoreboard Corporation, and 10.5% of The Miami Dolphins, and he also owns 9.5% of Nelson Laboratories. He receives quarterly payments of $22,000 to $33,000 from an insurance trust. In addition, he is to receive $500,000, before taxes, payable over four years by his family in settlement of the shareholder dispute. Hence he has annualized income of nearly $200,000.

In addition to the foregoing, the husband testified that in February 1991 he also received two separate $30,000 shareholder distributions from the Nelson Laboratories and Miami Sports Corporation stock which was given to him by his father before the marriage. According to his testimony, these distributions were the first he had ever received on either stock, and thus were not considered part of his total monthly income of approximately $15,500.

Husband's affidavit claimed monthly expenses of $10,972. His testimony established that the amount was overstated by nearly $2,500, and that part of the remainder reflected a $2,000 monthly set-aside for attorney's fees in this dissolution proceeding. Subtracting the projected legal fees, his actual monthly expenses were about $6,500. In contrast, wife testified that her monthly income is $83, and her monthly expenses are nearly $5,500. She currently lives alone in Santa Monica, California, at a $900,000 home owned by her mother, and would like to cover her mother's $226 monthly mortgage payment.

Counsel for wife testified that she is charging $150 per hour for her representation, and has thus far accumulated $5,195 in total attorneys' fees, $2,700 of which was still unpaid at the time of the hearing. Wife has paid her lawyer $2,500, of which she borrowed $1,800 from her mother. Her counsel estimated that prospective attorneys' fees would be about $29,500 and that anticipated minimum trial preparation costs would be around $13,300. Wife's expert witness, a board certified marital and family law attorney, testified that these figures were both reasonable and necessary. Husband claimed that the only way he could pay these fees would be to dissipate his non-marital assets. He also admitted to having at least $50,000 in cash on hand, while wife had about $600.

The trial court awarded wife temporary relief of $1,800 per month, plus monthly car payments at $850 and ordered husband to pay her health insurance. The court also awarded interim counsel fees of $3,500 and $2,500 in costs. Wife appeals.

It is, of course, an appellate truism that temporary relief awards are among the areas where trial judges have the broadest discretion, which we are quite loathe to interfere with, save in the most compelling circumstances. As we said not so very long ago: "the trial court has broad discretion in deciding matters of temporary alimony * * * and we will not disturb that discretion in the absence of a showing that no reasonable man would take the view adopted by the trial court." Wolfson v. Wolfson, 455 So.2d 577, 579 (Fla. 4th DCA 1984).

It is not uncommon to find temporary relief awards reversed as excessive. See e.g., Barclay v. Barclay, 554 So.2d 1191 (Fla. 2d DCA 1989) (abuse of discretion to award wife $2,500 per month where husband's gross earnings averaged $5,666 per month and he was obligated to pay $3,278 per month in mortgage payments); Fields v. Fields, 533 So.2d 922 (Fla. 2d DCA 1988) (trial court erred in part when it awarded temporary alimony which exceeded husband's weekly earnings); Schubot v. Schubot, 523 So.2d 661 (Fla. 4th DCA 1988) (trial judge abused discretion in awarding $50,000 in temporary alimony, "an excessive amount" where wife alleged numerous needs which appeared no longer relevant to her lifestyle); Wenzel v. Wenzel, 512 So.2d 275 (Fla. 4th DCA 1987) (abuse of discretion where "the amount of temporary alimony awarded by the trial court not only exceeds the amount requested by the wife but also appears to exceed the standard of living established by the parties during the marriage."); Herr v. Herr, 463 So.2d 447 (Fla. 4th DCA 1985) (court may not authorize temporary alimony awards in excess of party's ability to pay); Clark v. Clark, 155 Fla. 574, 20 So.2d 900 (Fla.1945) (award of temporary alimony quashed where chancellor was "entirely too generous in his allowances"). ¹

We have found only one case, cited also by the wife, involving temporary alimony where an appellate court deemed the amount of the award so insufficient as to amount to an abuse of discretion. In Vickers v. Vickers, 413 So.2d 788 (Fla. 3d DCA 1982), the third district reversed a $215 biweekly temporary alimony and child support award because the trial judge observed that "the only thing I am doing is keeping everybody alive until the final hearing." As Judge Schwartz said,

This just-prevent-them-from-going-to-the-poorhouse-until-the-case-is-over view of the legal principle controlling [temporary] awards, which is directly reflected in the inadequacy of the sums provided, is both widely held and thoroughly wrong.

413 So.2d at 789. Because the record revealed that the husband had already been voluntarily paying $1,600 monthly without order of court, the district court reversed and remanded for the entry of a temporary relief order requiring the husband to pay $1,600 per month. Unlike Vickers, there are no children here, and it hardly appears that the wife is on her way to the poorhouse.

Wife also relies on Belcher v. Belcher, 271 So.2d 7 (Fla.1972), where the supreme court held that

the husband must continue to support his wife during coverture by paying generally the same expenses (omitting long range and vacation items) and by paying amounts he had been providing prior to their separation.

271 So.2d at 11. In this case, the evidence establishes without contradiction that husband paid all expenses during coverture.

We find that the trial court abused his discretion in awarding $1,800 per month temporary alimony. Even considering the narrow scope of our review authority for temporary awards, we are unable to tie the amount awarded with any objective facts, historical or current. Wife sought $5,400 monthly, a figure which certainly was supported by the parties' historical standard of living and well within husband's ability to pay. On the other hand, the court award of $1,800 is unrelated to any evidence in the record and is unexplainable by any formulation of the Belcher standard as applied to the evidence. As Judge Schwartz said in Vickers, the award "was thus not based upon a properly-founded exercise of discretion, but upon an error of law" and thus must be set aside for reconsideration by the trial judge.

We are also troubled about the allowance for suit money [fees and costs]. The purpose of section 61.16, Florida Statutes (1989), which authorizes interim awards of suit money, is to ensure that both parties to a dissolution proceeding have similar access to counsel and can thus fight the action on a nearly equal footing. Nichols v. Nichols, 519 So.2d 620 (Fla.1988). The appropriate inquiry--whether one spouse has a need for suit money and the other has the ability to pay--is the same whether the fees requested are temporary or final. 519 So.2d at 622.

In this case, wife asked for $29,475 in fees. Her attorney testified that $5,195 had been billed already, with over $2,700 of that billing still owed. Even more stark is the husband's own implicit concession...