Schlafke v. Schlafke

• Decision Date: 04 August 1999
• Docket Number: No. 98-0952.,98-0952.
• Citation: 755 So. 2d 706
• Parties: Robert SCHLAFKE, Appellant, v. Mary SCHLAFKE, Appellee.
• Court: Florida District Court of Appeals

755 So.2d 706

Robert SCHLAFKE, Appellant, v.Mary SCHLAFKE, Appellee.

No. 98-0952.

District Court of Appeal of Florida, Fourth District.

August 4, 1999.

Nancy Little Hoffmann of Nancy Little Hoffmann, P.A., Fort Lauderdale, for appellant.

Donna G. Goldman of Law Offices of Donna G. Goldman, P.A., Plantation, for appellee.

DELL, J.

Robert Schlafke appeals the trial court's Final Judgment of Dissolution of Marriage on grounds that the court abused its discretion in awarding the former wife $1,400.00 a month in permanent periodic alimony and $15,000.00 in attorney's fees.We reverse and remand.

The parties entered into a settlement agreement distributing their assets and liabilities.The agreement provided that the former husband would pay the former wife $948.00 a month from his City of Hialeah pension.The agreement also provided that the former husband would keep all interest in his military pension in exchange for a lump sum payment of $25,000.00.These figures represent approximately fifty percent of the marital portions of the City of Hialeah and military pensions.The trial court ratified and approved the agreement in the Final Judgment of Dissolution of Marriage.

Based on the testimony and evidence presented at trial, the court concluded that "the wife has the need to continue the lifestyle she has been accustomed to, but the wife's total need is greater than the husband's ability to pay."The trial court awarded the former wife permanent periodic alimony of $1,400.00 a month.In determining the amount of alimony, the trial court found that the former wife earned a gross income of approximately $40,000.00 a year, and the former husband's gross income was approximately $73,000.00 a year, less the $948.00 a month ($11,376.00 a year)he paid to the former wife as the result of the equitable distribution of his pension.The trial court also awarded the former wife child support of $450.00 a month and $15,000.00 in attorney's fees.In Canakaris v. Canakaris,382 So.2d 1197(Fla.1980), the Florida Supreme Court stated that "[t]he two primary elements to be considered when determining permanent periodic alimony are the needs of one spouse for the funds and the ability of the other spouse to provide the necessary funds."Id. at 1201."Traditional alimony ... depends upon the `financial ability of the other spouse to make such payment without substantially endangering his or her own economic status.'"Gentile v. Gentile,565 So.2d 820, 822(Fla. 4th DCA1990)(emphasis in original)(quotingCanakaris,382 So.2d at 1201).

In Diffenderfer v. Diffenderfer,491 So.2d 265(Fla.1986), the court held:

[Pension] benefits may be considered as a source of payment of permanent periodic alimony.The potential income may certainly bear on the employee spouse's ability to pay, and as we noted in Canakaris, this factor can be determined "not only from net income, but also net worth, past earnings, and the value of the parties' capital assets."382 So.2d at 1202, citingFirestone v. Firestone,263 So.2d 223(Fla.1972).

Obviously, however, injustice would result if the trial court were to consider the same asset in calculating both property distribution and support obligations.If the wife, for example, has received through equitable distribution or lump sum alimony one-half of the husband's retirement pension, his interest in his pension should not be considered as an asset reflecting his

...